Indigenous law expert explains how UNDRIP advances the law of consultation and consent

Anita Boscariol is associate counsel at Watson Goepel LLP in Vancouver, with a practice focussing on Indigenous Law. Prior to joining the firm two years ago, Boscariol was director general for Treaties and Aboriginal Government West at what was then the Department of Indigenous and Northern Affairs.

What is UNDRIP?

The United Nations Declaration on the Rights of Indigenous Peoples. So, it's an international instrument setting out the rights of Indigenous people. It deals with the basic human rights within an Indigenous context. It sets out, according to the UNDRIP document itself, what the rights that constitute the minimum standard for the survival, dignity and well-being of the Indigenous peoples of the world.

It's not a document that falls within the definition of customary international law, that the courts of every country that signs on would have to acknowledge and recognize. It doesn't go that far. And nor is it an international treaty, which again, would give it that kind of force of law in domestic courts. And for that reason, if a country that signs on to the declaration wants it to have any kind of force of law within its country, then it must pass its own legislation incorporating it into domestic law.

What is the status of the adoption of UNDRIP in Canada?

As of 2016, Canada has signed on to the declaration without any reservation. But the declaration took a long time to come into being. Work at the UN started in 1982. And it wasn't adopted by the UN until 2007.

When it was adopted by the UN, there were 143 countries in favour, 11 countries abstained from adopting the declaration, 34 were absent and — of most note — four countries in the United Nations voted against adoption of the UN Declaration. And those four countries were Canada, the U.S., Australia and New Zealand.

And that remained from 2007 until 2010. In 2010, all four opposed countries reversed their position, endorsed the declaration, but with reservations. Canada's reservation was that all of the concerns that it originally had — a lot of the terms of the declaration were contrary to Canadian domestic constitutional law. Canada passed the Constitution Act, passed s. 35 and it recognized the existence of Aboriginal and treaty rights in Canada. Canada already worked on its own recognition language. It worried that adopting some of what was in the declaration was contrary to existing Canadian law.

So, what Canada said in 2010 was, we’ll adopt it, but only because we're confident that the principles in UNDRIP can be expressed in a manner consistent within the Canadian constitutional and legal framework.

It took from 2010 to 2016 and a change in the federal government, where Canada then decided we can live with the UN Declaration as is and we adopted without reservation.

Can you describe the differing interpretations of free prior and informed consent?

There are some Indigenous leaders that feel that, in the context of whether any legislation that a country passes and anytime any kind of development is going to be made on lands that the Indigenous group identifies as Indigenous land, before anything can be done in those two contexts, the government has to obtain the free, prior and informed consent to the Indigenous peoples concerned. That is the interpretation that some Indigenous leaders put on it.

And what that means is, obviously, no consent, no go. They see it as a veto that Indigenous peoples in Canada have over any legislative development of any legislation could impact Indigenous people.

The other view, and it's been stated by representatives within the United Nations and has also been commented on with approval by Canadian political leadership, is that in the article specifically dealing with free, prior and informed consent in the declaration, and most specifically articles 19 and 32 of the UN declaration, that the emphasis is not on the consent or achieving the consent, it's in the process of working towards achieving consent.

So, the idea is in a consultation context with Indigenous people, it should be the government’s goal always to work to try and achieve consent with Indigenous people. But it doesn't mean that if no consent is reached, nothing can go forward.

What, if anything, will UNDRIP change about the consultation process between Indigenous groups and Canada or the provinces?

B.C. is the only jurisdiction that has adopted the UNDRIP into domestic legislation. They passed their act to adopt the UN Declaration on November 28, 2019. And what has happened to date is nothing has really changed on the ground in the way consultation is being carried out. And I think that's because, up to this point, most companies, most resource development corporations have gotten it that they have work with the First Nations.

We've moved really far away from an environment where a company feels, “Hey, I talked to the government. We want it. They want it. We'll do whatever pro forma we have to do with Indigenous people: we've got our project.” We’ve moved so far beyond that, practically speaking on the ground, that there are so many discussions that happen. Impact benefit agreements for First Nations, for instance, are the norm, they are not an exception. Now that before you go ahead, you negotiate and make sure that you are sharing any benefits from the project with the First Nation, given that it's their land. There's that acknowledgement already.

But the B.C. legislation does have a couple of unique features and one of them is there are a couple of sections that say, for the UNDRIP to fully become B.C. law, there are a couple of things we have to we have to do. One is we must have an action plan. We must develop an action plan jointly with First Nations as to how are we going to implement the declaration into B.C. law. And then we have to do a review of all of B.C.’s laws that impact Indigenous people and determine whether any changes have to be made to those laws to make them align with the UNDRIP.

So, what the government has said, is the first job of preparing an action plan for how we are going to adopt the UNDRIP, that's probably going to take months. But it's something that they see more as a shorter to midterm kind of project.

The minister here of Indigenous relations and reconciliation has been quoted as saying, the task of aligning the laws of BC with UNDRIP is, “generational work.” So much more as a long-term project.

So, in B.C., given its legislation, consultation, for now is going on as it has been.

In the Canada-wide context Canada has not adopted the UNDRIP yet. It was on the way for doing so, Romeo Saganash had introduced a private member's bill to adopt the UNDRIP in 2016. And it was going through the readings and the debates in Parliament. It was with the Senate when the election was called. So, in fact, that private member's bill died on the order paper.

So, Canada has not adopted it yet. And I think in the media, the prime minister and others have said they hope to do it within a year. They said that pre COVID-19. I don't know if this impacts the timeline.