Annex A: Checklist for UN Declaration Consistency Analysis

General information and summary of the proposal

Sponsoring Department(s)

Type of measure(s) (check all that apply)

Status of measure(s)

Timing of conduct of UN Declaration Consistency Analysis (check all that apply – you are encouraged to conduct this assessment at multiple stages of the initiative)

First stage of assessment: potential intersections between the proposal and the United Nations Declaration on the Rights of Indigenous Peoples

The proposal should be assessed in relation to the direct, indirect, hidden and unintended effects of the proposal. Potential intersections between the proposal and the UN Declaration can be either positive or negative.

The UN Declaration includes rights of Indigenous peoples as collectives and rights of Indigenous individuals.

Research and data

Have you sought out disaggregated data and information about the realities of diverse Indigenous peoples of Canada?

Did the sources consulted include Indigenous voices and perspectives?

Are the sources consulted varied, including both quantitative and qualitative information?

Have you taken an intersectional approach to your research (for example, searching for Indigenous data disaggregated by different identity factors, including age, gender, socioeconomic status, geography, and others)?

Have you reviewed previous consultations with Indigenous peoples on the proposal, or statements or resolutions made by Indigenous governments, communities and representative organizations?

In collecting information, have you engaged with Indigenous peoples, including gathering information from historically underrepresented voices such as Indigenous women, elders, 2SLGBTQQIA+ persons, persons with disabilities, youth, individuals living off reserve?

Notes on sources consulted (ensure you include enough information about your sources so others can find them, including which Indigenous partners and what data sources were consulted, and when)

Does the proposal potentially intersect with the following rights and interests of First Nations, Inuit and/or Métis, as set out in the UN Declaration?

Example: Non-discrimination, special protection for vulnerable groups, addressing intersecting identities and disproportional effects of proposed initiative
Declaration Articles: 1, 2, 22, 44

Example: Historic and modern treaties, including implications identified in the Assessment of Modern Treaty Implications, agreements and other constructive arrangements
Declaration Articles: 3, 4, 5, 37, 45

Example: Ownership, protection from relocation, military use, adjudication of rights, redress for non-consensual taking of lands, free prior and informed consent
Declaration Articles: 10, 25, 26, 27, 28, 29, 30, 31, 32

Example: Identity, community membership, security of the person, protection against forced assimilation and relocation, labour rights
Declaration Articles: 6, 7, 8, 9, 10, 17, 20, 33, 36

Example: Economic and land development, improving socio-economic conditions, right to traditional medicines and health
Declaration Articles: 17, 18, 19, 20, 21, 23, 32

Example: Cultural heritage, histories, languages, spiritual traditions and relationship with land
Declaration Articles: 8, 11, 12, 13, 14, 15, 25, 31, 34, 36

Example: Control over education systems, access to education, public education and media in own languages
Declaration Articles: 14, 15, 16

Example: Participation in decision making, free, prior and informed consent, institutional structures
Declaration Articles: 18, 19, 20, 27, 32, 33, 34, 35

Example: Conservation, environmental protection of Indigenous lands
Declaration Articles: 29, 32

Example: Taking appropriate measures, conflict resolution, financial and technical assistance, and others
Declaration Articles: 1, 8, 28, 32, 38, 39, 40, 41, 42

If the first stage analysis indicates that First Nations, Inuit and Métis rights and interests are engaged, proceed to the second stage of the assessment. In circumstances where there are no potential intersections between the proposal and the rights and interests of First Nations, Inuit and Métis, and no inconsistencies with the UN Declaration are apparent, you should record the analysis that supports your decision in the MC and other briefing materials. The basis for your conclusions may inform discussions between departmental officials and your Minister (or Minister’s office), as well as with PCO analysts.

Second Stage of Assessment: Consistency with the UN Declaration

Type of Initiative

Is this proposal:

An initiative specifically addressing the rights or interests of:

Did you consult and cooperate with First Nations, Inuit and Métis in the development of this proposal?

For guidance on consultation and cooperation, see section about Consultation and cooperation with Indigenous peoples of this Guide.

Notes on consultation and cooperation (describe those consulted, depth of consultation and cooperation, reasons for not consulting)

In which of the following ways does the proposal contribute to the implementation of the UN Declaration or enhance the consistency of federal laws, regulations, policies, programs or other measures with the UN Declaration? (check all applicable boxes)

See section about the UN Declaration of the Guide for an overview of UN Declaration rights, as well as the Resources in the References.

Example: Reduces or eliminates gaps between Indigenous and non-Indigenous Canadians, has ameliorative effects for marginalized sub-groups

Example: Fulfills treaty obligations, recognizes the exercise of inherent jurisdiction for purposes of federal law, support opportunities for service transfer, creates a framework to coordinate exercises of self-government with federal law

Example: Resulted from a process aimed at obtaining free, prior and informed consent, includes Indigenous peoples in decision-making processes relating to traditional lands, territories or resources

Example: Eliminates gaps in legislative schemes, provides funding or support to ensure effective exercise of civil and political rights in practice

Example: Helps to reduce gaps in socio-economic outcomes, responds to the particular needs and lived experiences of Indigenous peoples

Example: Provides support for the revitalization of languages, legal traditions or other elements of culture, creates space or protection for the exercise of Indigenous practices or perspectives in federal or federally regulated institutions

Example: Provides support to Indigenous media and education providers, increases availability, affordability, quality and adaptability of Indigenous-controlled education

Example: Creates processes or reduces barriers for Indigenous participation in federal decision making, supports Indigenous representative institutions and transfer of services to Indigenous institutions, was developed in light of broad-based and accessible consultations with diverse Indigenous peoples

Example: Respects relevant Indigenous laws in decision making about land and resources

Example: Creates or enhances legal remedies, funds arm’s length bodies to further the implementation of Declaration rights

In what ways have Indigenous peoples identified that the proposal could be inconsistent with the UN Declaration, if any? (check all that apply) Depending on the proposal and the rights at issue, an inconsistency can be a failure to take sufficient steps to realize the right.

Example: May exacerbate pre-existing gaps, takes no specific measures to ensure that Indigenous collectives or individuals benefit from the initiative, creates barriers, which may be invisible or inadvertent

Example: Unilaterally imposes processes or requirements on Indigenous governments, fails to respect or uphold obligations identified in the Modern Treaty Implications Assessment

Example: Good faith consultation aimed at securing free, prior and informed consent did not take place

Example: Imposes or fails to protect an individual’s formal ability to participate in civil and political life, fails to remove barriers to the right to belong to an Indigenous community, imposes barriers in the criminal justice system

Example: Creates social or economic benefits that may not be enjoyed on an equal basis by Indigenous peoples

Example: Cultural or spiritual considerations are not adequately integrated or respected such as in land-based processes or decisions

Example: May restrict accessibility, affordability, quality or adaptability

Example: Consultation or cooperation is restricted to certain Indigenous organizations or representatives

Example: No consideration for traditional knowledge, use and practices in relation to environmental initiatives

Example: May create barriers to redress

(by listing the UN Declaration rights, reason for inconsistency, concrete examples of concerns expressed by Indigenous partners, divergent views among Indigenous peoples)

Who was consulted or with whom did you cooperate to identify measures to ensure consistency of your proposal with the UN Declaration (to mitigate any potential inconsistencies identified)?

What steps have you taken to address these potential inconsistencies and to ensure consistency of your proposal with the UN Declaration? Please explain, making reference to the perspectives and recommendations of the First Nations, Inuit and Métis consulted and to ongoing cooperation.

If potential inconsistencies with the UN Declaration remain in your proposal, what is the just and compelling justification (reflecting human rights-informed objectives) for proceeding? (See section about the Justification of potential inconsistencies of the Guide for an overview of Article 46 of the UN Declaration)

This analysis may be provided to your Assistant Deputy Minister to inform their review and approval of the attestation in the Due Diligence Tool required for all MCs.

In addition to using this Checklist to support the drafting of your documents and related briefing materials, consider how to best document your analysis to ensure that your colleagues can draw on your good practices or lessons learned next time they need to conduct a UN Declaration consistency analysis.