A LEOPARD CANNOT HIDE ITS SPOTS: UNMASKING OPPOSITION TO THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.

• Author: Lightfoot, Sheryl

In November 2019, the province of British Columbia passed the Declaration on the Rights of "Indigenous Peoples Act, (1) a legislative framework that would implement the United Nations Declaration on the Rights of Indigenous Peoples (2) (UN Declaration, or UNDRIP) as required in 2015 by the Truth and Reconciliation Commission (TRC) of Canada. (3) Call 43 in the TRC s 94 Calls to Action calls upon all levels of government in Canada to "fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation in Canada." (4)

With the passage of this Act, previously known as Bill 41, (5) British Columbia became the first jurisdiction in the common-law world to establish a legislative framework for affirming Indigenous peoples' human rights standards. This historic legislation was based on proposed federal legislation, Bill C-262, (6) which died in the Senate in June 2019 after a handful of Conservative senators prevented it from coming to a final vote. (7)

In the final hours before Bill 41 was passed by the Legislative Assembly in British Columbia, First Nations leadership expressed deep concern that it might suffer the same fate as the federal bill. (8) Committee hearings dragged on for several days, and many worried that Bill 41 might not reach the floor again for a third reading before the end of the legislative session.

As the TRC firmly linked reconciliation with the implementation of the UN Declaration, any opposition to its implementation now translates directly into opposition to the findings and Calls to Action of the TRC. Therefore, many of those who work against its implementation do so subtly to preserve a facade of social acceptability, as they do not want to appear to oppose the TRC or oppose international human rights. In fact, individuals often profess to support the UN Declaration while simultaneously opposing efforts toward its implementation, such as federal Bill C-262 and British Columbia's Bill 41. This article aims to unmask this veiled opposition to the UN Declaration. It will argue that at both the federal and provincial levels, veiled opposition to the implementation of the UN Declaration has common themes and patterns. Those patterns are uniformly politically motivated and not based on any actual conflict with Canadian or international human rights law.

This article is divided into four sections. First, despite some strong contextual differences, the similarities between federal Bill C-262 and British Columbia's Bill 41 will be established so that the rationale for individual opposition to each of the bills can be analyzed together. Second, the qualitative data collection and analysis methods utilized in this study will be introduced, and the results presented. Third, the dominant themes of opposition common to British Columbia Liberal opposition in British Columbia and Conservative opposition federally will be discussed in terms of their political or legal nature. Finally, the article will end with some conclusions about opposition to legislation implementing the UN Declaration.

1. SIMILARITY OF BRITISH COLUMBIA AND FEDERAL LEGISLATION

   British Columbia legislation to implement the UN Declaration, Bill 41, for all intents and purposes mirrors the federal Bill C-262. However, there are some important contextual differences between the two bills. The federal Bill was introduced as a private Members bill and debated for several years, including many hours of testimony in committee, and after passing in the House of Commons, it still needed to proceed to the Senate for passage, where it stalled. British Columbia's Bill 41 was a government bill and only had to pass through a single house, which it did within a few weeks. Further, some features of British Columbia's Bill 41 stand notably apart, and from an Indigenous perspective, provide distinct improvements when compared to the federal bill. The British Columbia Bill was co-drafted with the First Nations Leadership Council, and the draft Bill enjoyed a wide Indigenous consultation before it was tabled in the British Columbia legislature. The British Columbia Bill also contained a provision recognizing that the Province could make agreements with "Indigenous governing bodies" rather than only Indian Act bands. Despite these differences, the main thrust of the two bills is identical. Scott Fraser, British Columbia's Minister of Indigenous Relations and Reconciliation, at the First Reading of Bill 41, stated the following:

   Through this legislation, we are recognizing the human rights of Indigenous peoples in law. The legislation sees us bring provincial laws into harmony with the UN declaration over time. It will see us develop an action plan for how to meet the objectives of the UN declaration. Developed in consultation and collaboration with Indigenous peoples, with regular reporting on progress, this will provide transparency and accountability for all the work ahead.

   The legislation also creates room for decision-making opportunities for Indigenous governments on matters that impact their citizens. It creates flexibility for the province to make agreements with more types of Indigenous governments, supporting self-determination and self-government. The legislation will give us a path forward, creating clarity and predictability for all people in British Columbia. (9)

   Like federal Bill C-262, British Columbia's Bill 41 contained three major requirements: 1) consistency with the UN Declaration; 2) an action plan for the implementation of the UN Declaration; and 3) an annual report on progress. (10) In fact, much of the language used in each bill is closely matched, if not identical.

   Concerning the requirement for consistency, federal Bill C-262, section 4 reads as follows: "The Government of Canada, in consultation and cooperation with indigenous peoples in Canada, must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples."" Section 3 of the British Columbia Bill reads as follows: "In consultation and cooperation with the Indigenous peoples of British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration." (12) The common wording between the two bills is shown here in italics.

   On the subject of an action plan, Bill C-262 section 5 reads as follows: "The Government of Canada must, in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of the United Nations Declaration on the Rights of Indigenous Peoples", (13) while section 4 of British Columbia's Bill 41 contains all of the text of the federal bill, reflecting the provincial context, and adds some additional detail. Identical, or near identical, words are--once again--shown in italics. Section 4 of Bill 41 reads as follows:

   (1) The government must prepare and implement an action plan to achieve the objectives of the Declaration.

   (2) The action plan must be prepared and implemented in consultation and cooperation with the Indigenous peoples in British Columbia.

   (3) The action plan must contain the date on or before which the government must initiate a review of the action plan.

   (4) After the action plan is prepared, the minister must, as soon as practicable,

   1. lay the action plan before the Legislative Assembly if the Legislative Assembly is then sitting, or

   2. file the action plan with the Clerk of the Legislative Assembly if the Legislative Assembly is not sitting.

      (5) The government may prepare a new action plan in accordance with this section.

      For the annual report requirement, section 6 of Bill C-262 reads as follows:

      The Minister of Indian Affairs and Northern Development must, within 60 days after the first day of April of every year including and occurring between the years 2017 and 2037, submit a report to each House of Parliament on the implementation oj the measures referred to in section 4 and the plan referred to in section 5 for the relevant period. (15)

      Meanwhile, the British Columbia legislation contains more overlapping language, once again shown in italics, with additional detail. Section 5 of Bill 41 reads as follows:

      (1) Each year the minister must prepare a report for the 12-month period ending on March 31.

      (2) The report must be prepared in consultation and cooperation with the Indigenous peoples in British Columbia.

      (3) In the report under subsection (1), the minister must report on the progress that has been made towards implementingthe measures referred to in section 3 and achieving the goals in the action plan.

      (4) On or before June 30 in each year, the minister must

   1. lay the report prepared for the 12-month period ending on March 31 in that year before the Legislative Assembly, if the Legislative Assembly is then sitting, or

   2. file the report prepared for the 12-month period ending on March 31 in that year with the Clerk of the Legislative Assembly, if the Legislative Assembly is not sitting. (16)

      Federal Bill C-262 and British Columbia Bill 41 are extremely similar, and yet their political contexts differ substantially. Federal Bill C-262 was brought forward as a private Member's bill by Cree New Democratic Party (NDP) Member of Parliament (MP) Romeo Saganash (Abitibi-Baie-James-Nunavik-Eeyou). While this private Member's bill was originally opposed by both the Liberal Party of Canada and the Conservative Party of Canada, with Liberal Justice Minister Jody Wilson-Raybould referring to legislative implementation of the UN Declaration as a "simplistic approach", "unworkable", and "a political distraction", (18) the Liberal government led by Prime Minister Justin Trudeau did eventually throw its support behind the bill, although it stopped short of taking it on as a government bill. (19) Once the Trudeau Liberals threw their support behind Bill C-262, the...