Executive summary
Section 5 of the UN Declaration Act requires the Government of Canada to take, in consultation and cooperation with Indigenous peoples, all measures necessary to ensure that existing and new federal laws are consistent with the UN Declaration.
For initiatives that are not legislative or regulatory in nature, there is no statutory obligation to ensure consistency with the UN Declaration or to consult and cooperate pursuant to section 5 of the UN Declaration Act. However, as stated in the preamble to the UN Declaration Act, the Government of Canada is committed to taking effective legislative, policy and administrative measures, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the UN Declaration.
In order to contribute to fulfilling these commitments, consideration of the UN Declaration should be integrated early in every policy initiative and reflected in MCs on legislative and regulatory initiatives. As this is a legislated obligation, it is strongly recommended that an assessment of consistency with the UN Declaration be completed for every MC. Analysis of an initiative’s consistency with the UN Declaration should be reflected throughout your MC.
The statutory obligation to consult and cooperate in section 5 of the UN Declaration Act is distinct from the constitutional duty to consult. The statutory obligation to consult and cooperate may apply in circumstances where the section 35 duty to consult does not, and vice versa. If you are unsure whether any legal obligations apply to your initiative, we recommend that you consult your LSU.
The Checklist in Annex A of this Guide helps MC drafters complete sections of the MC and determine whether there are any UN Declaration-related implications anticipated, be they positive or negative. The Checklist should guide the reflection process and help document the analysis. The Department of Justice recommends that this analysis 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. It is recommended that the Due Diligence Tool be shared early on with Privy Council Office analysts. The Checklist walks you through two broad stages of analysis and includes the following questions:
- Stage 1
- Does the proposal potentially affect the rights and interests of Indigenous peoples (First Nations, Inuit or Métis), as set out in the UN Declaration?
- How were the perspectives of First Nations, Inuit and Métis considered in assessing whether the proposal is consistent or inconsistent with the UN Declaration?
- Did you include First Nations, Inuit and Métis, as appropriate, in the planning of the consultation and cooperation process and in early development of the initiative?
- Does the proposal potentially affect the rights and interests of Indigenous peoples (First Nations, Inuit or Métis), as set out in the UN Declaration?
- Stage 2
- How does the proposal contribute to, or align with, the implementation of the UN Declaration or enhance the consistency of Canada’s laws, regulations, policies and programs with the UN Declaration?
- In what ways, if any, have Indigenous peoples identified that the proposal could be inconsistent with the UN Declaration?
- With whom did you consult and cooperate to identify measures to ensure consistency of your proposal with the UN Declaration and to mitigate any potential inconsistencies identified?
- What steps have you taken to address these potential inconsistencies and ensure consistency of your proposal with the UN Declaration?
- 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?
This Guide is part of a series of resources that support Government of Canada officials in taking steps to ensure consistency of federal laws, policies, programs and other measures with the UN Declaration and to achieve the objectives of the UN Declaration. In addition to the information provided in this Guide and the accompanying Checklist, you may wish to consult your departmental LSU or departmental focal point on the UN Declaration Act, if such a position or unit has been created in your organization.
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