Examining the Implementation of the UN Declaration Act by Canada and First Nations, Inuit, and Métis Peoples
OCTOBER 23, 2024
The Chair: Today, we will continue our study to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021, also known as UNDRIP, by Canada and First Nations, Inuit, and Métis Peoples. The committee is hearing from witnesses to further refine its study topic.
With that, I would now like to introduce our first witness today, Mr. Donald Nicholls, Member of the Coalition for the Human Rights of Indigenous Peoples. Thank you for joining us today, Mr. Nicholls. Our witness will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators. I will now invite Mr. Nicholls to give his opening remarks.
Donald Nicholls, Member, Coalition for the Human Rights of Indigenous Peoples: Thank you, chair and honourable senators, for inviting me today. It is a pleasure to be here to discuss this important topic for Indigenous Peoples in this country. Today I am speaking on behalf of the Coalition for the Human Rights of Indigenous Peoples. The Coalition has been advocating for adoption and implementation of the UN Declaration for more than a quarter century. We engage with a wide range of Indigenous partners, and we work both domestically and at the United Nations.
Canada’s adoption of the UN Declaration Act and its Action Plan are important achievements that have made Canada a world leader in the implementation of the UN Declaration. However, the Coalition members are concerned by what some would call slow and uneven progress toward fulfilling the commitments set out in the Act and the Action Plan. In particular, the members wish to highlight the issues of meaningful consultation and cooperation, oversight and accountability, the legal effects of the UN Declaration Act, and the training of civil servants.
The UN Declaration Act requires Canada to implement the UN Declaration in “consultation and cooperation” with Indigenous Peoples, mirroring the language of the Declaration itself.[1] This is a fundamental step in creating a new relationship with Indigenous Peoples based on principles of reconciliation, trust, and respect and implementing the calls to action of several national commissions and inquiries.
However, in the absence of consultation and cooperation between members of the Coalition and federal departments, there is a feeling that this may not be happening as promised or adequately. A meaningful and transparent standard for consultation and cooperation must be established to guide federal departments, and they must be supported in implementing this new standard of relations.
We understand that some Indigenous organizations are having to negotiate funding for participation on an initiative-by-initiative basis. Others may be diverting resources from priority areas in order to participate in UN Declaration implementation initiatives. Canada must provide federal departments with clear and transparent guidelines on consultation and cooperation, and adequately fund all parties engaged in this work. We recommend that the Standing Committee research or request any guidelines or policies concerning the implementation of consultation and cooperation that may be in development, to become more informed as to the standard that is evolving in this area of the Act and National Action Plan.
Canada’s Action Plan to implement the UN Declaration Act also commits to establishing an “independent Indigenous rights monitoring, oversight, recourse or remedy mechanism or mechanisms.”[2] An independent Indigenous rights mechanism is required to monitor implementation of the UN Declaration Act and the Action Plan, and to provide redress and remedies to Indigenous Peoples when their individual and collective rights are violated. This mechanism must be co-developed with Indigenous Peoples. Its membership must have the cultural fluency to ensure Indigenous laws, customs and traditions are given due respect in the resolution process, as explicitly required by the UN Declaration.[3] The mechanism must also have sufficient and secured funding, and full independence, so it can hold government accountable without fear of reprisal. The mechanism must have the authority to order binding recourses and remedies. Recommendations and reports are too often merely taken under consideration, and never implemented.
Since the rights affirmed in the Declaration are now part of Canada’s positive law, a tribunal that can enforce these rights is appropriate. A tribunal could also address the financial barrier preventing many Indigenous Peoples from advocating for their rights through existing prolonged judicial processes. The Canadian Human Rights Tribunal made a strong decision on Jordan’s Principle without the need for costly and delayed access to justice.
The mechanism must also be permanent, to ensure that Canada’s legislative, administrative, policy, and regulatory practices remain consistent with the UN Declaration as state-Indigenous relations and Canadian and international law evolve over time.
We also wish to highlight for the Committee the need to affirm the legal effects of the UN Declaration Act. The first stated purpose of the UN Declaration Act is to “affirm the Declaration as a universal international human rights instrument with application in Canadian law.”[4] A recent reference decision the Supreme Court of Canada unanimously concluded that the Declaration is part of “the country’s positive law”.[5] The coalition members would hope that federal departments would embrace the legal interpretation of the highest court in Canada. As stated in the Declaration, these are minimum standards that all states agreed to, so they are a staring point for the discussion of rights in our nation.
The Department of Justice has a key role to play in providing legal advice to other departments that advances implementation of the Declaration and fulfills Canada’s obligations. Relatedly, the coalition would recommend that the Standing Committee meet with the Justice Department concerning the development of standards and guidance for other federal departments. This guidance should be consistent with the Supreme Court’s affirmation that the UN Declaration is integrated into Canadian law, and consistent with best practices to ensure rights are upheld and protected going forward.
There is a legacy of colonial assimilative and discriminatory practices in Canada that continues to negatively impact Indigenous Peoples in this country. To move forward we must ensure that Indigenous Peoples are not seen or treated as a vulnerable segment of our society. Discretionary powers perpetuate status quo and indifference in the treatment of Indigenous Peoples. Clear direction is needed if change is to occur and if we are to fully realize Indigenous rights.
Finally, we wish to highlight the issue of training provided to civil servants relating to the UN Declaration. The Action Plan included a commitment to develop training for public servants, co-created with Indigenous subject-matter experts, to build knowledge of Indigenous Peoples, the UN Declaration, and related matters.[6]
The Coalition recommends that the Standing Committee request from the applicable federal departments or institutions, such as the Department of Justice and the Canada School of Public Service, information concerning the training taking place to fulfill this commitment.
This training should incorporate the numerous reports and studies of the UN Permanent Forum on the Rights of Indigenous Peoples and the Expert Mechanism on the Rights of Indigenous Peoples concerning meaningful implementation of the UN Declaration, as well as the recommendations of the Truth and Reconciliation Commission and other commissions, inquiries and bodies that have made recommendations with concrete actions to address injustices.
On behalf of the Coalition, thank you for the opportunity to highlight these important issues related to the implementation of the UN Declaration in Canada.
Meegwetch. Thank you. Merci.
[1] United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14, ss. 5, 6(1); United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295,Articles 15(2), 17(2), 36(2), 38.
[2] The United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan (2023): https://www.justice.gc.ca/eng/declaration/ap-pa/ah/pdf/unda-action-plan-digital-eng.pdf, page 29, Shared Priority 19.
[3] United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295,Article 40.
[4] United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14, s. 4(a).
[5] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, para. 4, see also paras 15, 59.
[6] The United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan (2023): https://www.justice.gc.ca/eng/declaration/ap-pa/ah/pdf/unda-action-plan-digital-eng.pdf, page 28, Shared Priority 14.
To watch the entirety of this meeting, including the question and answer portion, you can find it on the Senate of Canada Website: Meetings #96 – Standing Senate Committee on Indigenous Peoples (44th Parliament, 1st Session).