IMPLEMENTING UNDRIP: AN ANALYSIS OF BRITISH COLUMBIA'S DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLESACT.

• Author: Bankes, Nigel

This article analyzes the different elements of the British Columbia (BC) Declaration on the Rights of Indigenous Peoples Act (BC Act, or the Act, introduced as Bill 41),' and aims to assess the legal effect that the courts of the settler state will likely accord to it. The article also offers some comparative comments on the BC Act And the federal Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples? Both the BC Act and Bill C-262--although the latter was not ultimately adopted--are concerned with the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) (3) in or to the laws of BC and Canada, respectively.

This is not the place for a detailed review of the Declarations preamble and 46 articles, but five preliminary observations are in order. (4) First, at a conceptual level, it is best to think of the Declaration as translating and applying general rules and principles of international human rights law-such as the right to self-determination, the right to equality, the right to be free of discrimination, and the right to culture--to the particular situation or Indigenous peoples. It does not create new rights. Rather, it seeks to address the particular history of colonization experienced by Indigenous peoples. Second, the Declaration is "a declaration" of the United Nations General Assembly. It is not a treaty. It is therefore only binding on states as a matter of international law, to the extent that particular provisions represent customary international law; and that must be determined articleby-article on the basis of an assessment of state practice and opinio juris.'' Third, in terms of drafting, many of the provisions of the Declaration consist of a declaratory statement of a right with a corresponding or correlative duty on the part of the state to take effective measures to ensure that the right can be enjoyed. (6) Fourth, and related to the last point, the Declaration is not self-implementing. State measures will be required to give effect to the statement of rights. This is made explicit in article 38, which provides that "[s]tates, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, includinglegislative measures, to achieve the ends of this Declaration'' (7) Finally, the Declaration must be read as a whole, including article 46(2), which makes the point that the Declaration, while recognizing the rights of Indigenous peoples, does not do so at the expense of the rights or others. (8) The same article also confirms that the rights referenced in the Declaration may be subject to limitations, but only as "determined by law and in accordance with international human rights obligations", and only such limitations as are "strictly necessary solely lor the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society." (9)

THE LEGISLATIVE HISTORY OF BILL C-262 AND THE BC ACT

Bill C-262 (the Bill) was introduced into the House of Commons in 2016 as a private Member's bill by New Democratic Party (NDP) Member of Parliament (MP) Romeo Saganash, a Cree from Northern Quebec. The Bill was the successor to the identically titled Bill C-641, which was introduced in December 2014, also by MP Saganash. (10) The earlier bill, C-641, was defeated on second reading. Unlike Bill C-641, Bill C-262 received second reading in February 2018, after which it went to the Standing Committee on Indigenous and Northern Affairs (the Committee) for its consideration. The Committee held hearings on the Bill between February and May 2018and reported the Bill out without amendment. Bill C-262 was passed by the House of Commons on 30 May 2018. (11) The Bill was supported by the Liberal and NDP parties and other smaller parties, but it was opposed by Conservative members. (12) The Bill received first and second reading in the Senate and was reported out of committee, again without amendment. Ultimately, the Bill died on the order paper in the fall of 2019 when Parliament was dissolved to allow for the parliamentary election. Since returning as a minority government, the second Trudeau administration has committed to introducing a new bill as a government measure during 2020. Indeed, the prime minister's mandate letter to David Lametti, in his role as the Minister of Justice and Attorney General of Canada, instructed him, with support from the Minister of Crown-Indigenous Relations, to "introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020." (13)

Bill 41 was introduced into the BC Legislature on 24 October 2019 by Scott Fraser, Minister of Indigenous Relations and Reconciliation, on behalf or the government. The introduction followed a blessing from an elder of the T'Souke Nation, a land acknowledgement from an elder of the Songhees Nation, and drumming by the Lelcwungen Nation. Once Bill 41 had been given first reading, the House adjourned to reconvene in the afternoon for a Ceremony that was addressed by A. Olsen (TSUNUP) of the WSANEC First Nations, Grand Chief Ed John, Cheryl Casimer or the Ktunaxa First Nation, Regional Chief Terry Tegee, and Grand Chief Stewart Philip, as well as by Premier John Horgan.

The parliamentary processes in Ottawa and Victoria were quite different. The committee process in Ottawa emphasized hearing from a large number of witnesses, including witnesses from Indigenous organizations, a bar association, industry organizations, as well as academics; all of whom were then subject to rounds of questions from Committee members. There is a lot of repetition in the records of those meetings and not always a lot of substance. Because the Bill was a private Member's bill, the government was never required to take a position as to its understanding of key terms in the legislation.

By contrast, the parliamentary process in Victoria was far more rigorous and systematic, albeit less inclusive--at least at the hearing stage. In particular, the committee in Victoria--a section of the Committee of the Whole--engaged in a detailed clause-by-clause analysis not only of the ten sections of the Bill, but of almost every article of the Declaration scheduled to the Bill. This examination was led by Mike de Jong, QC, the Liberal Member of the Legislative Assembly (MLA) for Abbotsford West, and Michael Lee, Liberal MLA for Vancouver-Langara. As a six-term MLA, de Jong had served as Minister of Finance, Minister of Health, Attorney General, Minister of Aboriginal Relations and Reconciliation, Minister of Labour and Citizens' Services, and Minister of Forests, as well as Government House Leader for previous Liberal governments. Lee is a firstterm MLA but an experienced business lawyer. All of the questions were directed at Minister Fraser and, while there was some partisan maneuvering, and the occasional testy exchange, all three of these individuals--Fraser, de Jong, Lee--come across as well-prepared and engaged in genuine debate aimed at securing a clearer understanding of the implications of Bill 41. (16) In the end, Bill 41 was adopted unanimously and without amendment by the Legislature. (17)

While the provincial committee process was less inclusive than the federal committee process, the overall process to develop the text of Bill 41 was inclusive. Minister Fraser described the process as a "co-collaboration process" engaging representatives of the First Nations Leadership Council and their counsel. (18)

THE BC ACT: A SUMMARY

The BC Act comprises 10 sections and a schedule (the text of the Declaration). Section 1, "Interpretation", defines some key terms but also contains three additional ideas. The first is a recognition of the diversity of Indigenous peoples in BC--including their legal traditions and governance structures--and the need for the government to recognize this reality in implementing the Act. (19) This is more than just recognition, since the provision requires that government "must consider" this diversity "lor the purpose of implementing this Act". As such, the provision needs to be read into each of the procedural and substantive provisions that follow.

The second is a non-derogation clause with respect to the constitutional rights of Indigenous peoples, while the third is a statement to the effect that "[n]othing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia." (20) During the clause-by-clause debate, Minister Fraser expressed the view that one purpose of this clause was to ensure that nothing in the BC Act would "prevent courts from using UNDRIP... as an interpretive aid." (21)

Section 2 is a statement of the purposes of the BC Act, which are threefold:

(a) to affirm the application of the Declaration to the laws of British Columbia;

(b) to contribute to the implementation of the Declaration;

(c) to support the affirmation of, and develop relationships with, Indigenous governing bodies. (22)

"Indigenous governing bodies" (IGB) is a defined term and means "an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982". (23)

Sections 3,4 and 5 are best dealt with together, since they are linked by the reporting requirements of section 5. Section 3 requires the government to take "all measures necessary to ensure the laws of British Columbia are consistent with the Declaration." (24) Section 4 requires government to prepare an action plan to achieve the objectives of the Declaration and to lay that plan before the legislature. Section 5 requires the government to prepare an annual report assessing "the progress that has been made towards implementing the measures referred to...