THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES AND THE DIVISION OF POWERS: CONSIDERING FEDERAL AND PROVINCIAL AUTHORITY IN IMPLEMENTATION.

• Author: Hamilton, Robert

The United Nations Declaration on the Rights of Indigenous Peoples (1) (UNDRIP or the Declaration) was adopted by the General Assembly of the United Nations (UN) on 13 September 2007. Canada, along with 3 other states, voted against the resolution at this time, while 143 states voted in favour. (2) Among other concerns, the Canadian government of the day believed that the Declaration was incompatible with Canada's constitutional order. In November 2010, Canada officially endorsed the Declaration, though the government continued to argue that it was an "aspirational" document that had no binding legal effect. (3) In 2016, Canada endorsed the Declaration. Minister for Indigenous and Northern Affairs Canada Carolyn Bennett told the UN Permanent Forum on Indigenous Issues: "We are now a full supporter of the declaration, without qualification. We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution." (4) With this, much of the debate shifted, focusing on what implementation "in accordance with the Canadian Constitution" may look like. With British Columbia (BC) passing the Declaration on the Rights of Indigenous Peoples Act (5) (the BC Act) in November of 2019 and the federal government committing to introducing implementation legislation of its own, (6) a picture is emerging of the early stages of domestic implementation.

While much of the conversation about what it means to implement the Declaration "in accordance with the Canadian Constitution" has focused on the relationship between the Declaration and constitutional Aboriginal rights, it is important to consider how the division of powers in Canada's federal structure is likely to impact implementation. (7) Why, for example, is legislation required at both the federal and provincial levels ? What can each level of government hope to accomplish? Are there redundancies in their efforts ? What rules will govern in the event of conflicting approaches ? As is often the case, federalism presents jurisdictional challenges as the scope of constitutional authority is contested and negotiated by the parties. (8) The general nature of the documents at issue in this instance add to the complexity. The Declaration often uses general language, couched in references to other international law documents and principles. (9) The provincial legislation, for its part, requires that provincial law be consistent with the Declaration, but includes little indication of what that means substantively. If federal legislation is similar to that of the province and the implementation bill that died in the senate in 2019, (10) the same will be said of it. This is by design, no doubt, as the general nature of the language allows for implementation to proceed in a gradual manner on the basis of subsequent negotiations and with input from Indigenous peoples. Yet, while that ambiguity may indeed be generative, it leaves much unknown about what the impact of the legislation will be and what forms of implementation it may generate.

This paper seeks to provide some clarity about what the federal and provincial governments can hope to achieve in respect of implementation in light of the ambit of their respective constitutional authority. This will provide some insight, it is hoped, into what can reasonably be expected of implementation at the federal and provincial levels. Three preliminary questions give shape to this inquiry: Why is there a need for both federal and provincial implementation legislation? What can legislation from each level of government hope to achieve ? What will happen if fed eral and provincial implementation legislation conflict? Part one provides a brief account of the legal parameters of UNDRIP implementation. Part two addresses issues raised by implementation in a federal state. Part three considers the scope of federal and provincial jurisdiction in detail. Parts four and five look at potential conflicts that may arise; the former considers scenarios in which the federal government seeks to exercise its jurisdiction to impose implementation standards on reluctant provinces, while the latter considers a scenario wherein a province pursues implementation at odds with federal legislation. A final section briefly returns to the BC Act and assesses key provisions in light of the analysis undertaken in the paper.

A final distinction: this paper addresses the scope of constitutional authority of only the federal and provincial governments. UNDRIP implementation must occur through consultation and collaboration with Indigenous peoples through the exercise of their inherent rights of self-determination: Articles 38,39, and 40 of the Declaration are explicit on this point." The division of constitutional authority in Canada must account for the existence of Indigenous legal orders and jurisdiction, whether grounded in a right of self-government under section 35; in an expansive reading of section 35 as creating an Indigenous head of power in the constitution; on inherent rights of self-determination that survived the assertion of Crown sovereignty; or on some combination of the above. (12) Further, several of the subject matters of federal and provincial jurisdiction discussed in this paper might properly be subjects of Indigenous jurisdiction where implementation of the Declaration has occurred. For all that, however, this paper takes on a narrower question, addressing implementation issues that arise in relation to the federal and provincial division of powers. It is hoped that the deep entanglement between provincial, federal, and Indigenous governance in the matters discussed will justify this as a worthwhile pursuit. Federal and provincial governments have assumed jurisdiction over such a wide range of issues concerning Indigenous peoples that moves to recognize Indigenous jurisdiction will almost always require some action on the part of a federal or provincial government, even if this amounts to nothing more than identifying which level of government has to withdraw from the field so that Indigenous governments might occupy it. Decolonizing the constitutional order in the service of Indigenous self-determination requires a close engagement with how that order functions.

1. THE NEED FOR IMPLEMENTATION

   The content of the BC Act and the federal Bill C-262 have been ably reviewed elsewhere and I will not cover that ground again. (13) It is the approach taken in each instance that is relevant here: both sought to bring the laws in their respective jurisdiction in line with the Declaration, neither "incorporated" the Declaration as law. An initial question, then, is why domestic legislation required. There are two reasons why domestic action is required to effect implementation. First, UNDRIP was adopted as a resolution of the UN General Assembly. Such resolutions, even in the form of declarations, are not, as a rule, considered binding international law. (u) They are "soft law" that do not create binding legal obligations on member states at international law. (15) Even when countries have endorsed it, a declaration has no binding force domestically unless or until it has been incorporated through the mechanisms of specific national legal regimes. In Canada, this requires implementation through legislation. While the executive office in Canada holds a prerogative power in relation to foreign affairs, this extends only to the signing of international agreements: such agreements must be implemented domestically to have effect as domestic law. (16) In a federal state, the extent of implementation in different jurisdictions within the state will therefore be shaped by the internal division of powers; distinct levels of government can implement an international instrument only to the extent that their authority in the domestic constitutional order permits. (17) The second reason that action is required at the national level is that the provisions of the Declaration are not "self-implementing"; they require action on the part of states, in collaboration with Indigenous peoples, to be given meaningful effect. (18) This provides a startingpoint for the analysis in this paper: implementation requires action on the part of state governments, and in a federal state the capacity of governments to implement will be determined by the constitutional division of powers.

   Several aspects of this account need to be nuanced. First, while it is true, as a general rule, that resolutions of the UN General Assembly are not binding international law, UNDRIP is unique in an important respect: several of its important provisions do not create new rights. Rather, the Declaration re-articulates a number of human rights that are already recognized in other international law instruments and may well be binding on that basis. (19) Second, many argue that some of UNDRIFs substantive rights and guarantees "correspond to rules of customary international law." (20) Any right credibly characterized as a reflection of customary international law is applicable by common law courts in the absence of domestic incorporation, so long as there is no explicit contrary domestic legislation. (21) Third, while the Declaration was adopted as a non-binding resolution of the General Assembly, its status as a declaration does give it increased weight. Declarations are a unique and particularly important UN instrument. The UN Office of Legal Affairs writes, "In the United Nations practice, a 'Declaration'is a formal and solemn instrument... in view of the greater solemnity and significance of a 'Declaration, it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it." (22) Thus, while the Declaration is a "soft law" instrument, is may be a particularly persuasive one given its broad support and the importance of declarations as articulations of international norms of...