AuthorGunn, Brenda L.

    Canada was leading the way internationally on the recognition of Indigenous peoples' rights when the Canadian constitution recognized and affirmed existing Aboriginal and treaty rights of the Aboriginal people 35 years ago. (1) Unfortunately, Canada no longer leads the world on rights protection. In fact, the former United Nations (UN) Special Rapporteur on the Rights of Indigenous Peoples raised concerns after his 2013 visit to Canada that the problems faced by Indigenous peoples had gotten worse since his 2004 visit and had reached crisis proportions. (2) Implementing the UN Declaration on the Rights ojIndigenous Peoples* (UN Declaration) is critical for protecting Indigenous peoples' rights, and doing so will bring Canada back to the forefront of Indigenous rights protection and fulfill Canada's international human rights obligations. Passing legislation that implements the UN Declaration is one way to achieve this goal, but it may not be easy to achieve especially given the lack of political will over the past decade.

    There are several challenges to implementing the UN Declaration beyond political will. For example, a related challenge to implementation is that there continues to be misunderstandings and mischaracterization of the nature of the instrument and the rights contained within it. Many people continue to conflate requirements related to human rights treaties with the requirements for declarations such as the UN Declaration.''While the general rule in Canada is that human rights treaties must be transformed into domestic law, this is not required for declarations. If implementing legislation is not required for the UN Declaration to have legal effect in Canada, the question remains as to the benefit of passingsuch legislation. This article aims to address both the misunderstanding of how the UN Declaration has legal effect in Canada even without implementing legislation, while also arguing the importance of legislation as a means to clarify the legal effect of the UN Declaration.

    The UN Declaration took almost 30 years to be adopted by the UN General Assembly. It took Canada another seven years to fully endorse the UN Declaration without qualification. (6) As Canada has been slow to embrace the UN Declaration, this article explains that implementing the UN Declaration does not require legislation, nor should we wait until legislation is passed to begin implementing the UN Declaration. While this article whole-heartedly supports legislation to implement the UN Declaration, including BC legislation in Bill 41 and the former federal Bill C-262, it is important to understand that the UN Declaration continues to have legal effect even without such legislation. As a starting point, this article begins by providing background on what legislative attempts have been made to implement the UN Declaration, including federal Bill C-262, emphasizing why these legislation initiatives are important. It also provides a few examples of existing legislation that reference the UN Declaration.

    After a discussion on legislative initiatives, the article argues that the UN Declaration has legal effect in Canada, even absent implementing legislation. This argument is advanced by explaining the reception of international law in Canada, including how declarations such as the UN Declaration have legal effect in Canada. The next section then goes on to provide recent examples of where the UN Declaration was used by domestic courts to exemplify the legal effect of the UN Declaration in Canada. This section demonstrates how the UN Declaration has legal effect in Canada even without implementing legislation, and highlights some of the challenges that remain with using the UN Declaration in litigation.

    Given the ongoing challenges of implementing the UN Declaration, including through legislative initiatives and judicial interpretation, the final section provides some general advice on implementation. This section focuses on addressing key challenges to implementation, including the need to take a contextual approach to understanding and interpreting the UN Declaration. Interpretations of the UN Declaration must continue to be contextualized in the broader human rights system in which it exists, including UN human rights treaties and the American Declaration on the Rights of Indigenous Peoples {American Declaration): These ideas are presented here because once legislation is passed, the actual work of implementing the UN Declaration--and the standards contained therein--remains.

    The ultimate goal of this article is to highlight why we should not wait for legislation to begin implementing the UN Declaration. Even when legislation such as BC's Declaration on the Rights of Indigenous Peoples Act (BC Declaration Act) is passed, the actual work of implementing the UN Declaration remains. The article emphasizes the need to ensure that the process of implementing the UN Declaration (the domestication process) maintains the standards developed in international human rights law.


    Much effort went into lobbying for the federal private member's 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, introduced by the Honourable Romeo Sanganash in 2016. Unfortunately, Conservative Senators successfully killed the bill by preventing it from completing its third reading before the Senate rose in June 2019. (8) Given that the Liberal government platform promises to introduce legislation at least as strong as Bill C-262 by end of 2020, and given the similarity between the BC Declaration Act and Bill C-262, this section briefly describes the elements of Bill C-262 to explain their significance. This section also briefly considers other legislation that references the UN Declaration. This section highlights the benefit of legislative initiatives before going on to argue that legislation is not actually required for the UN Declaration to have legal effect in Canadian law.

    As I have written elsewhere, Bill C-262 had five main aspects. (9) First, it clarified that the UN Declaration applied in Canada. (10) Second, it required the government to ensure all laws in Canada were consistent with the UN Declaration. (11) Third, the Bill required the government to develop and implement a national action plan to achieve the ends of the UN Declaration. (12) Fourth, the Bill required the Minister of Indian Affairs and Northern Development (as the minister was titled then) to report annually to Parliament on the implementation of the national action plan and the measures taken to ensure consistency of Canadian laws with the UN Declaration. (13) Finally, the Bill clarified that the Act does not diminish or extinguish any rights recognized and affirmed under subsection 35(1) of the Constitution Act, 1982. (14)

    Bill C-262 was an important effort to begin the process of implementing the UN Declaration in Canada, despite the modest steps it contained. First, it was important that the Bill clarified that the UN Declaration applies in Canadian law because there is limited knowledge in the legal and political realms on the reception of international law in domestic Canadian law. (15) As will be discussed in greater detail in the following section, there are many technical aspects to the rules of reception, but the Supreme Court of Canada (SCC) jurisprudence is clear that declarations such as the UN Declaration can (and should) be used to interpret domestic laws, including the Constitution. (16) However, this is not always broadly understood, even in the legal community. It is a wellestablished principle under the presumption of conformity that domestic laws, including the Canadian constitution, should be interpreted in accordance with Canada's international human rights obligations. (1) The clarification in the Bill aimed to overcome the reticence and ignorance of many in the legal field on the relevance of the UN Declaration to interpreting Canadian laws, including the Constitution and subsection 35(1).

    The second aspect of the Bill would have required the government to take steps to ensure conformity between domestic law and the UN Declaration. This was an important step to ensure Canada upholds its international human rights obligations. The human rights articulated in the UN Declaration are part of the obligations that the UN Charter requires Canada to uphold. In fact, Canada often claims before UN treaty monitoring bodies that their international human rights obligations are implemented through the Canadian constitution. (18) Bill C-262, and the prescribed review of Canadian laws, was one way that Canada could implement its obligations to protect Indigenous peoples' rights. This requirement built upon existing work undertaken by the federal government to begin the process to review laws through the Working Group of Ministers, announced on 22 February 2017 and led by former justice minister Jody Wilson-Raybould. This working group was mandated to

    examine relevant federal laws, policies, and operational practices to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including the United Nations Declaration on the Rights of Indigenous Peoples; and supporting the implementation of the Truth and Reconciliation Commission's Calls to Action. (19) Finally, the Bill's provisions promoting transparency and accountability were key to ensuring that the government continued to take action to implement the UN Declaration. Through development of a national action plan, the federal government would have needed to work with Indigenous peoples to develop a plan to implement the UN Declaration. Such a process would have ensured the domestication process accounts for the specific Canadian context, while ensuring that...

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