The federal government has released an action plan on how it will implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The release of its United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) on June 21 was timed to match National Indigenous Peoples Day, two years after the legislation received royal assent.
UNDA, which contains articles describing a wide array of collective and individual Indigenous rights, will have implications for every federal department.
There are also over 700 federal laws in Canada and all of them will be impacted by the implementation of UNDRIP, a Justice Canada official said on background at a technical briefing on June 21..
Much of the document commits to a path forward, including developing mechanisms for accountability. But much remains unclear as to how these actions will manifest in policies and what sway they will have over resource projects, modern treaties and dismantling of the Indian Act.
It’s why federal Justice Minister David Lametti calls UNDA an imperfect evergreen roadmap for implementing UNDRIP into Canadian law and policy.
Here are three sticking points to watch in UNDA’s action plan.
What is the definition of free, prior, and informed consent?
Free, prior, and informed consent is one of the central doctrines of UNDRIP, allowing nations to give or withhold permission to develop in their territories. However, it’s an ambiguous concept when a nation-state’s sovereignty, like the Crown, cannot be disrupted.
There is no mention of First Nations having veto power over natural resource projects in the UNDA action plan, keeping pace with what Ottawa has said in the past. Without a veto, it’s unclear how free, prior, and informed consent will be defined going forward when industry and provinces are involved.
Ottawa is not in the position to define free, prior, and informed consent, a Natural Resources Canada official told Canada’s National Observer. However, industry and Indigenous partners are interested in a definition.
Ottawa is in a position to bring all interested parties together to develop expectations around free, prior, and informed consent for the development of projects, they explained.
The concept also stretches beyond natural resources, including participation in decision-making processes and modern treaty rights. The official notes there will be no one-size-fits-all definition.
Natural Resources Canada is committed to creating a process that will help define the parameters of free, prior, and informed consent, the justice minister said at a press conference.
“I think you can expect a framework in the future,” Lametti added.
Provinces without an UNDRIP act remain a big question mark
B.C. is the only province that has enshrined UNDRIP into law and crafted its own action plan with DRIPA. The rest of the provinces remain a big question mark.
The UNDA action plan pertains only to federal legislation, including federally regulated industry.
Government officials maintain that they expect the feds will be able to bring the provinces and territories alongside over time, citing UNDA as “generational work.”
In 2020, when the federal government tabled the UNDRIP legislation, six provinces objected: Ontario, Quebec, Alberta, Saskatchewan, Manitoba, and New Brunswick.
With UNDA’s action plan released, Lametti hopes the provinces will work with Ottawa to adopt the principles of UNDA, “whether formally or informally,” moving forward.
“We’re leading by example here,” he added.
It’s a significant sticking point given that the largest owners of Crown land are the provinces, which means they have a majority of jurisdictional power over natural resource development.
How will Indigenous Peoples and their communities be involved in the economic participation of natural resource projects?
UNDA includes sections on increasing this involvement.
Yet, it’s unclear what actions the feds will take and what that participation might look like.
Natural Resources Canada is developing a national benefits-sharing framework that will include measures like increasing Indigenous capacity to participate in projects, as well as increasing access to affordable capital, according to documents obtained through an access-to-information request.
Also, $25 million has been earmarked to engage and build Indigenous capacity to support participation in the critical minerals sector.