Measures to ensure consistency of laws

The UN Declaration Act requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take all measures necessary to ensure that federal laws are consistent with the UN Declaration. In implementing this obligation, Aboriginal and treaty rights recognized and affirmed by the Constitution must also be respected. The Act also affirms that the UN Declaration can be used to interpret and apply Canadian laws, including the Constitution, which means that new laws and regulations or updates to existing laws or regulations that impact the rights of Indigenous peoples should contribute to achieving the objectives of the UN Declaration.

Several federal departments and agencies reported on legislation advanced between April 1, 2022 and March 31, 2023. Details about how these legislative initiatives are being done in consultation and cooperation with Indigenous peoples have also been provided. Please see Annex B for a summary of new legislation and legislative amendments advanced by the government during the reporting period. LegisInfo provides up to date information about all legislative initiatives introduced in Parliament.

Some Indigenous peoples and their governments and representative organizations have, however, noted concerns with the scope of consultation and cooperation undertaken on specific legislative initiatives advanced over the course of the year. These include concerns related to unilateral timeframes for comments and dialogue, lack of transparency of internal departmental decisions, and the scope of Indigenous peoples, governments, and representative institutions included. Identifying lessons learned in processes undertaken to date will be used to inform ongoing implementation of section 5 of the Act and advance consultation and cooperation moving forward.

“I would say that, at least with the implementation, the engagement sessions and consultation with Indigenous peoples after it is passed into law isn't an appropriate process, especially when it deals with Indigenous rights. There needs to be a continual process of validation, engagement, and monitoring, and this needs to be resourced.”

National Association of Friendship Centres

Measures to develop agreed upon approaches to consultation and cooperation were included in the draft action plan released in March 2023 and in the Action Plan released on June 20, 2023. The Action Plan also includes measures directed at advancing implementation of section 5 of the UN Declaration Act .

Indigenous peoples’ perspectives on measures to ensure consistency of laws

Over the course of consultation and cooperation undertaken with Indigenous peoples on the development of the Action Plan, including the identification of measures to ensure consistency of laws, Indigenous partners have generally indicated that the UN Declaration implementation work has been progressive. At the same time, however, Government has also heard the need to clarify what consultation and cooperation means as there are concerns that the form and substance of consultation and cooperation is not yet at the level required by section 5 of the UN Declaration Act.

Challenges noted include concerns about: who is included in consultation and cooperation processes; receipt of requests for input on drafts rather than being asked at an earlier stage about Indigenous needs, interests, and ideas; and unilaterally imposed deadlines. In particular, barriers related to the ability of Indigenous peoples to access information about legislation under development or to contribute views on legislation to government have been identified as serious barriers to implementation of section 5.

Examples of departments and agencies moving ahead with legislation despite concerns about whether or not consultation and cooperation obligations have been met have also been provided by some Indigenous partners.

One related perspective expressed is that many departments and agencies seem unclear on, or unaware of, the application of the statutory obligation in section 5, despite the availability of interim guidance.

Indigenous peoples want to be included in the process of building on and moving beyond the initial interim guidance for assessing consistency of federal laws with the UN Declaration, and some have indicated their views of the breadth of laws that fall within the scope of section 5 and interest in ensuring a shared understanding of the provision.

In the context of working to co-develop the Action Plan, Indigenous partners called for meaningful partnerships, clear targets, and follow-up mechanisms to track progress and ensure accountability as it relates to implementing section 5. Also, Indigenous partners noted the importance of adequate financial and technical assistance, facilitating a strong flow of information and participation by Indigenous peoples as part of fulfilling consultation and cooperation requirements in consistency of laws processes. Partners specifically recommended including Aboriginal rights holders, including historic and modern treaty nations, Indigenous representative institutions and governing bodies; First Nations, Inuit, and Métis women and 2SLGBTQI+ persons; urban Indigenous people; and youth in all consistency of laws processes. According to partners making such recommendations, this could include thematic and geographic joint policy tables, a permanent standing committee, an Indigenous youth advisory committee, and a citizens’ assembly. Indigenous partners also noted the importance of upholding free, prior, and informed consent (FPIC) as applicable in consistency of laws processes.

Article 40 of the UN Declaration states that Indigenous peoples have the right to access to and prompt decision-making through just and fair procedures for the resolution of conflicts and disputes with States or other parties, and that such decision-making shall give due consideration to the customs, traditions, rules, and legal systems of the Indigenous peoples concerned and international human rights. Indigenous partners have, similarly, suggested that efforts to assess consistency of federal laws with the UN Declaration should also include consideration of consistency with Indigenous legal orders and traditional knowledge.

“Because Indigenous Peoples have their own legal orders, their perspectives might differ from the perspectives of the Government of Canada. However, it is important to keep an open mind, to value the different angle these orders can bring to the table, and never forget that we live in a legal pluralistic society. The objective is to find a solution that is acceptable for everyone.”

Native Women’s Association of Canada

Indigenous partners made a number of recommendations relating to ensuring consistency of federal laws with the UN Declaration which were summarized in the “What We Learned to Date Report” published in March 2023. These recommendations informed efforts to develop the draft action plan, and the subsequent finalization of the Action Plan.

Measures for ensuring consistency of federal laws also engage consideration of collaboration with provinces and territories. This theme emerged during consultation and cooperation and is similarly reflected in both the “What We Learned to Date Report” and the Action Plan. Looking ahead, ongoing efforts to work together with provinces and territories on areas of shared interest and/or jurisdiction are likely to be a recurring theme.

“Reforming and advancing all legislative changes can shape stories and experiences for Indigenous communities in a positive way; especially when First Nation communities are bringing back their traditional Anishinabek governance models and implementing their own traditional laws and culturally unique frameworks.”

Anishinabek Nation

Recommendations for future annual reporting on progress on section 5 include combining Indigenous partners and Government of Canada perspectives on measures to ensure consistency of laws as evidence of collaboration and meaningful conversations on how to advance the implementation of UN Declaration Act. A unified voice that brings together the government and Indigenous peoples’ perspectives on how to advance the implementation process is needed.

Indigenous partners also recommended future annual reports include stories and examples about how laws have impacted traditional governance models and Indigenous individuals’ lives as a way of bringing life to Indigenous peoples' experiences through this report. Similarly, some partners have suggested that showcasing examples from an international perspective would also help enhance the annual report.

Other partners have recommended more quantifiable approaches to identify how many laws have been changed, how many implementation processes for existing laws have been changed and how many of those changes have come as a direct result of consultation and collaboration with Indigenous peoples.

Government of Canada perspectives on measures to ensure the consistency of laws

As a number of Indigenous peoples have noted, ensuring a whole-of-government approach to implementation of the UN Declaration and the UN Declaration Act requires that government officials are aware of and understand the UN Declaration and the Act and can apply them in their work. This requires training, information sharing, interdepartmental coordination, and the development and provision of policy development tools and legal advice. The Department of Justice Canada continues to provide support to Government of Canada officials in taking steps to ensure consistency of federal laws, and associated policies, programs and other measures, with the UN Declaration. Interim guidance developed in the previous fiscal year continues to be shared across government, helping to inform consultation and cooperation processes to ensure consistency with the UN Declaration. The Action Plan proposes to build on this interim guidance by developing additional tools and processes to help support whole-of-government efforts to ensure federal laws are consistent with the UN Declaration. Government digital platforms and legal and interdepartmental networks continue to be used to share tools, resources and training both internally and externally, including on the UN Declaration webpage and on Government social media channels to help raise awareness of the UN Declaration and the importance of the UN Declaration Act.

Justice Canada is equipping legal advisors to work with government officials to implement the UN Declaration Act. Between April 1, 2022 and March 31, 2023, over 300 federal public servants completed introductory training on the UN Declaration and the UN Declaration Act, and close to 250 Justice Canada legal professionals completed an intermediate course. In addition, Justice Canada officials presented at over 70 federal government meetings and training sessions and made over 15 presentations to non-Indigenous organizations outside of the federal government, including the Canadian Bar Association, the Conference Board of Canada, the Ontario Federation of Labour, and federal, provincial, and territorial committees.

The Canada School of Public Service, in partnership with Justice Canada, organized a training event for federal public servants that took place on April 20, 2022. The event featured a panel discussion with First Nations, Inuit, and Métis experts as well as senior federal government officials, who provided an overview of both the UN Declaration and the UN Declaration Act with a focus on their role in providing a framework for reconciliation. First Nations, Inuit, and Métis Elders provided opening and closing remarks. Close to 2400 people participated in the event and more have viewed the video and bilingual transcripts since, as it is available on the CSPS website.

In addition to training, the development of in-house tools to assist officials in aligning legislation and other initiatives with the UN Declaration is also underway. This includes general information about the UN Declaration and the UN Declaration Act and the identification of resources available to officials, including guidance from the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on the Rights of Indigenous Peoples. Specific departments and agencies are also developing resources pertinent to their operations. For instance, Employment and Social Development Canada is developing internal tools to help guide alignment of initiatives with the UN Declaration (from project inception to completion). Canada Border Services Agency is developing an Implementation Action Plan, including tools and processes to support the full implementation of the UN Declaration Act within the agency. Lessons learned from these departments will help shape and guide other government departments in their efforts to implement the Act.

Departments and agencies are also continuing to develop their capacity to ensure that the UN Declaration Act is implemented across their portfolios. Efforts are ongoing to ensure all program and policy areas understand their roles and responsibilities. Government officials at Parks Canada, for example, continue to implement change management processes, including training initiatives and presentations to key enabling teams to socialize the UN Declaration and outline related obligations. There is ongoing work to enable teams to advance from awareness to action, through development of tools that will support business units in conducting their own analyses of how their work intersects with the UN Declaration, so they can plan for change and engage Indigenous partners in that work. Employment and Social Development Canada is also leveraging internal networks and working groups to advance these efforts and ensure integration of the UN Declaration Act across the department.

Specific legislative and regulatory initiatives that were advanced during the reporting period and are relevant to ensuring consistency with the UN Declaration include:

  1. Non-derogation clause legislative initiative

    A non-derogation clause (NDC) is a statement in legislation that indicates the law should be interpreted to uphold, and not diminish, the rights of First Nations, Inuit, and Métis affirmed by section 35 of the Constitution Act, 1982. The addition of an NDC in the federal Interpretation Act has long been a priority for many Indigenous partners. Consultation and engagement on this initiative started in 2021. In 2022, Justice Canada officials consulted even more broadly to better understand the views of Indigenous partners. On March 1, 2023, Justice Canada published a draft legislative proposal on the NDC initiative on the Justice Canada website, and First Nations, Inuit, and Métis were invited to review the draft legislative proposal and provide feedback. Following this consultation and cooperation period, Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts, was introduced in the Senate on June 8, 2023. Bill S-13 would amend the Interpretation Act to include an NDC, and repeal most currently existing NDCs in other pieces of legislation.

  2. Drinking water and wastewater

    Consistent with measures included in the draft action plan, Indigenous Services Canada is currently co-developing new drinking water and wastewater legislation (that includes pathways to protect source water and legally enforceable safe drinking water protections comparable to those in place in provinces and territories) with First Nations rights holders, including Modern Treaty and Self-Governing Nations, as well as with First Nations organizations, including the Assembly of First Nations, and provinces and territories.

  3. Health

    In 2021, the government committed to “fully implement Joyce’s Principle and ensure it guides work to co-develop distinctions-based Indigenous health legislation to foster health systems that will respect and ensure the safety and well-being of Indigenous Peoples.” Since 2021, Indigenous Services Canada has been working to co-develop distinctions-based Indigenous health legislation to improve access to high-quality, culturally-relevant, and safe health services with First Nations, Inuit, Métis, and intersectional partners. Details on the co-development process are provided in Annex B: List of Legislation and legislative amendments advanced during the reporting period.

  4. National Council for Reconciliation

    In 2016, the Government of Canada committed to the implementation of the Truth and Reconciliation Commission's 94 Calls to Action from their final report. Calls to Action 53-56 direct the Government to establish a National Council for Reconciliation. On December 1, 2022, the House of Commons adopted Bill C-29, An Act to provide for the establishment of a national council for reconciliation. Consultation and cooperation with Indigenous peoples included:

    • an Interim Board comprised of Indigenous advocates, including a former Truth and Reconciliation Commissioner, struck in 2018 to undertake initial consultations
    • the development of a consultation draft of the bill
    • further consultation, by a Transitional Committee
  5. Registration

    Bill C-38 was tabled in December 2022, and aims to address inequities in the registration and band membership provisions of the Indian Act. The tabling of the Bill resulted from Indigenous Services Canada facilitating close engagement with Indigenous partners, including Indigenous women’s organizations.

  6. First Nations Fiscal Management

    Introduced on March 23, 2023, An Act to amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act received Royal Assent on June 20, 2023. The First Nations Fiscal Management Act is opt-in legislation that provides First Nations with support and tools to strengthen their communities and build their economies. To support the proposed amendments to the First Nations Fiscal Management Act, activities in three distinct phases of engagement and consultation were carried out:

    • The first phase included several years of close work with the Indigenous-led institutions established under the Act, First Nations, and other Indigenous organizations
    • Phase 2 focused on consultation on the draft legislation with First Nations scheduled to the Act (for example, a presentation at the First Nations Leading the Way Conference and a summary of the proposed amendments posted online for feedback)
    • The third phase included online engagement sessions with the previously mentioned parties as well as Modern Treaty and Self-Governing First Nations. Crown Indigenous Relations and Northern Affairs Canada also reached out to the Assembly of First Nations, Inuit Tapiriit Kanatami, the Métis National Council and the Manitoba Métis Federation to offer briefings

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