Tansi Nîtôtemtik,
The Tyee - "A Historic Day for BC First Nations. Now the Work Starts" (28 October 2019). Retrieved from: <thetyee.ca/Opinion/2019/10/28/Historic-Day-BC-First-Nations/.jpg>.
On November 28, 2019, Bill 41: “Declaration on the Rights of Indigenous Peoples Act” received Royal Assent, making British Columbia the first province in Canada to commit to implementing the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP). UNDRIP has a long and complex history in Canada which was explored on this blog in 2018. For more information on UNDRIP generally, please see previous posts: UNDRIP: An Overview[1] and UNDRIP Inaction: Why the Wait?[2].
What does the legislation do?
The legislation was implemented as a way to ensure that all future BC legislation is consistent with the 46 articles of UNDRIP.[3] S. 3 outlines that the BC government must work “in consultation and cooperation” with Indigenous Peoples to ensure BC laws align with UNDRIP.[4] The legislation also outlines that the BC government will create an action plan on how to implement UNDRIP in consultation with Indigenous Peoples.[5] Further, the government must create an annual report which will outline progress toward achieving the measures in s. 3 and the goals in the action plan.[6] The legislation also provides for the provincial government and Indigenous bodies to make decisions jointly or require consent of Indigenous bodies.[7] The legislation will apply to all existing and incoming legislation.[8] It is anticipated that the full implementation of the legislation will take significant time.[9]
Article 19 and 32 of UNDRIP
Articles 19 and 32 of UNDRIP have received some criticism in the past. Article 19 states that governments
shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Article 32 sets out that
- Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
- States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
- States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.[10]
These articles have been the subject of criticism because they are viewed by some to give Indigenous Peoples veto power over projects that would require their consent.[11] However, it is important to note the difference between veto and consent: “Veto is about unilaterally overriding a decision made by someone else, whereas consent means recognizing that the consenting party has self-determination to make an informed decision about a matter affecting them.”[12] BC Premier John Horgan has stated that it is an “important tool to require conversations and consultation with Indigenous peoples about projects that will affect them.”[13]
Most importantly, the commitment that this legislation represents is a step forward toward reconciliation in BC. While it will undoubtedly take a significant amount of time to implement this to all existing legislation, the agreement to UNDRIP is a major step forward given the history of UNDRIP in Canada.
Implementation of the Act
BC has outlined that they will be working in partnership with Indigenous Peoples in the province on how to move forward.[14] Consultation will begin with determining which BC laws should be addressed first to align them with UNDRIP.[15] The BC government has specifically outlined child welfare and environmental assessment as important areas of concern.[16] For more information on the Act and how it will be implemented, click here.[17]
Until next time,
Team ReconciliAction YEG
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[1] Team ReconciliAction YEG, “UNDRIP: An Overview”, University of Alberta Faculty of Law Blog, online: <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-an-overview.html>.
[2] Team ReconciliAction YEG, “UNDRIP Inaction: Why the Wait?”, University of Alberta Faculty of Law Blog, online: <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-inaction-why-the-wait.html>.
[3] Simon Little, “British Columbia becomes 1st Canadian province to pass UN Indigenous rights declaration”, Global News, (26 November 2019) online: <https://globalnews.ca/news/6222331/british-columbia-passes-undrip/> [Simon Little].
[4] Bill 41, Declaration on the Rights of Indigenous People Act, 2019 4th Sess, 41st Leg, 2019 (assented to 28 November 2019), SA 2019 cl 3 [Declaration on the Rights of Indigenous People Act].
[5] Ibid at cl 4.
[6] Ibid at cl 5.
[7] Ibid at cl 7; West Coast Environmental Law, “Bill 41: A new law to uphold Indigenous rights in BC”, West Coast Environmental Law, (13 November 2019) online: <https://www.wcel.org/blog/bill-41-new-law-uphold-indigenous-rights-in-bc> [West Coast Environmental Law].
[8] Simon Little, supra note 3.
[9] Ibid.
[10] United Nations, United Nations Declaration on the Rights of Indigenous Peoples (2007) at 16, online: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf> [UNDRIP].
[11] Ibid at 22-23; Simon Little, supra note 3.
[12] West Coast Environmental Law, supra note 7.
[13] Simon Little, supra note 3.
[14] Government of British Columbia, “A New Path Forward”, Government of British Columbia, online: <https://declaration.gov.bc.ca/> [Government of British Columbia].
[15] Ibid.
[16] Ibid.
[17] Ibid.
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