Indigenous Law

Cases in the Supreme Court of Canada

In 2020 there were only few Aboriginal law cases before the Supreme Court of Canada.

The only decision by the Supreme Court on an Aboriginal law issue was Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam), 2020 SCC 4, which was about jurisdictional and procedural issues involved when a claim for Aboriginal title overlaps provincial boundaries. The Court decided that a Québec court could rule on Aboriginal title in both Québec and Newfoundland and Labrador. The case turned on an interpretation of a Québec statute, so it is unclear if it would have broader application than this.

Another case about boundaries was heard by the Supreme Court in October 2020, an appeal from R. v. Desautel, 2019 BCCA 151. It involved a hunting charge against a US citizen and resident, who was a member of a US tribe that had traditional territory in Canada. All levels of court below had ruled that Mr. Desautel was exercising an Aboriginal right protected by the Canadian constitution. The Supreme Court reserved judgement.

One case to watch, which the Supreme Court heard in December 2020, was an appeal from Southwind v. Canada, 2019 FCA 171. That case raises issues about the principles of equitable compensation to be applied in a case of flooding of reserve lands. This could affect the size of compensation awards by courts over a wide variety of cases brought by Indigenous peoples. Judgement was reserved by the Court.

UNDRIP Introduction

One notable development that could affect Aboriginal law in the long term is the introduction of Bill C-15 in Parliament. The Bill is the Government of Canada’s attempt to establish a process for the domestic implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The need for this type of legislation is the result of the complex and often misunderstood relationship between Canadian domestic law and international law. As discussed below, there were two cases at the Supreme Court of Canada in 2020 which (while not being about Indigenous issues) helped to clarify this relationship.

UNDRIP is part of international law, which sets out many principles and provisions about how states are to conduct themselves in relation to Indigenous peoples. But whether and how it applies domestically in Canada depends on its precise status at international law and the steps taken domestically to incorporate it into law.

UNDRIP was adopted by the UN General Assembly in 2007. At that time, Canada did not support or adopt it, but later Canada became a “full supporter, without qualification” of it in 2016. Previous steps were made to move toward the domestic implementation of UNDRIP by private members bills introduced by MP Romeo Saganash (Bill C-641 in 2014 and Bill C-262 in 2016). Neither of these passed.

The Relationship between International and Domestic Law

To understand the purpose and effects of Bill C-15, one must keep in mind the general relationship between international and domestic law, and, among other things, the different meaning that “binding” has in those spheres.

If something is binding in domestic law, it means that domestic courts will enforce it by punishing breaches, or by ordering compensation for them, backed up ultimately by the state’s policing power. In the international sphere, there is no real equivalent to a domestic court having such coercive power. If something is “binding” in international law, it means that there could be international law remedies for its breach, such as diplomatic steps or economic sanctions or even military steps by other states. There are also various UN bodies that could publish opinions or reports condemning breaches of international law. But none of these bodies have a direct coercive enforcement power. International law functions by persuasion, or by convincing other states to take some action against an offending state.

Principles of international law, however, can become incorporated into domestic law, at which point such principles could be enforced by state courts, as any other provision of domestic law. There are three ways in which international law principles can become so domesticated. First, international law principles can be used as an aid to interpret domestic law, thus nudging domestic law closer to international law. This can only go as far as clarifying ambiguities in domestic law—international law cannot be used by a domestic court to overrule or alter clear statutes. Second, an international law instrument could be directly adopted and enacted by a domestic statute. That would give the provisions of such international law instrument domestic statutory force. Third, principles of international law that are established by custom (as opposed to being created by an international agreement) are considered as having been adopted into domestic common law, unless they are inconsistent with a statute of the state.

It is because of this complicated relationship between international and domestic law that there has been a move to explicitly implement UNDRIP domestically in Canada.

What Bill C-15 Would Do and Would Not Do

Bill C-15 is styled as the United Nations Declaration on the Rights of Indigenous Peoples Act. It does not, however, implement UNDRIP directly into Canadian law. The Bill includes an extensive preamble. While this does not directly create rights, it is far more specific and emphatic than Canada’s 2016 statement of support for UNDRIP and elaborates on some of its principles.

What the Bill does do is to establish a process that could make federal laws consistent with UNDRIP. The process set out appears to be in two parts. First, the Government of Canada “must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure the laws of Canada are consistent with the Declaration” (s 5). Second, the Minister must prepare an action plan to achieve the objectives of UNDRIP within the next three years, “in consultation and cooperation with Indigenous peoples” (s 6). However, it is unclear how these two parts are related to one another. It would be helpful to clarify that the Action Plan is intended to include review and revision of existing laws and policies.

The Bill would require annual reports to Parliament on measures taken under the Bill. Reporting on the Action Plan and proposed measures would presumably include suggestions for legislative amendments, which could then be considered by Parliament. But again, it would be helpful to clarify this.

Overall, the Bill, if passed, would not make any direct substantive changes in Canadian law. Rather, it would initiate a process that might lead to such substantive changes. The process would also apply to federal laws only. It would not affect provincial laws. If provincial laws are to be made consistent with UNDRIP, this would require a separate process with each province. British Columbia now has legislation in place somewhat similar to the federal Bill C-15 (Declaration On The Rights Of Indigenous Peoples Act, SBC 2019 c 44)

Beyond this, Bill C-15 does clarify that UNDRIP is a source of interpretation of Canadian law. Already courts are using UNDRIP as an aid in interpreting statutes and common law, both federal and provincial. The language of the Bill would, in our view, assist courts in this process by making what was required more explicit.

UNDRIP's Current Application in Canadian Law

There appears to be some confusion about whether and how the principles of UNDRIP would apply in Canadian law once the Bill is enacted: Is there any immediate application in Canadian law or does this have to wait for outcomes of the implementation process?

The answer to this question depends on how the provisions of UNDRIP relate to the three ways in which international law principles can interact with Canadian law: as an interpretive aid; by incorporation by statute; and by incorporation of customary international law into the common law.

Application of UNDRIP as an Interpretive Aid

First, the principles of UNDRIP can, should and have been used as an interpretive tool for domestic law. This is not controversial, and is already happening. There is no need to wait for any implementation process.

The real uncertainty, however, is how UNDRIP principles are to be used, what weight they are to be given As we discuss below, while UNDRIP is itself a non-binding declaration, the principles of UNDRIP are expressions of binding international law, sourced in treaties and conventions, as well as in customary international law. As such, they should be given the highest interpretive weight, and there should be a strong presumption that Canadian laws conform to them. Given the apparent confusion about the relationship in the domestic application of international law, it would be helpful to clarify this in the Bill.

One of the problems is that UNDRIP is often seen as a standalone document, which is non-binding and “aspirational” in nature. Indeed, Canada’s early statements about it reflect this view. This means, as some commentaries have hastened to point out, that it may be given more limited interpretative weight. What this view ignores is that UNDRIP “does not create new rights but elaborates on existing ones that are enshrined in various international human rights treaties and instruments, placing them in the context of indigenous peoples’ realities,” as stated by numerous United Nations bodies and others in Implementing the UN Declaration on the Rights of Indigenous Peoples: Handbook for Parliamentarians No. 23. Many of the core principles expressed in UNDRIP are in fact expressions of long-standing binding international law, whether contained in treaties or in customary international law. Domestic laws are presumed to conform with these obligations and should be interpreted accordingly. Canada’s laws and constitution should be presumed to provide protection at least as great as that afforded by binding international law. This proposition was reaffirmed by the Supreme Court of Canada in 2020 in the case Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, which was a case about the interpretation of the protection from “cruel and unusual treatment or punishment” in the Canadian Charter of Rights and Freedoms. This is the latest case in a long tradition of using international law to inform such interpretations of protections under the Charter.

Application of UNDRIP Principles as Existing International Treaty Obligations

As noted above, in addition to their use as interpretive aids, obligations in international treaties can be domesticated by incorporation into a statute, making them directly enforceable domestically. It turns out that much of the content of UNDRIP is based on existing binding international treaties, including the International Convention on Civil and Political Rights; Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Rights of the Child; Convention on the Protection and Promotion of the Diversity of Cultural Expression; Convention for the Safeguarding of Intangible Cultural Heritage; American Declaration on the Rights and Duties of Man; and American Convention of Human Rights.

Unless the relevant provisions of such international treaties have already been incorporated into Canadian statute law, doing so would be part of the process, set out in the Bill, of ensuring that the laws of Canada are consistent with UNDRIP.

Application of UNDRIP Principles as Reflecting Customary International Law

Additionally, beyond being included in binding international treaties, the principles of UNDRIP are also in many cases expressions of customary international law. Thus, they are already incorporated into Canadian common law.

Unlike international law arising from treaties, customary international law arises from established international practices. Both are equally binding on states, with an important distinction: laws arising from treaties must usually be incorporated into state law through legislation, while customary international law automatically becomes part of Canadian common law, unless it is inconsistent with a clear statute. This was most recently clarified by the Supreme Court of Canada in the case Nevsun Resources Ltd. v. Araya, 2020 SCC 5, which was a case about suing, in Canada, a Canadian company for its role in a forced labour regime overseas.

What UNDRIP does is restate binding international law, sourced both in treaties and in customary international law, in the specific and unique context of Indigenous peoples. Indigenous peoples long struggled with their inability to assert these international norms and to vindicate their rights because they had no standing at international law. UNDRIP was an attempt to address that standing issue and to restate existing rights as they relate to Indigenous peoples, not to create new rights. As the International Law Association has put it in their report: “the adoption of UNDRIP, after more than twenty years of negotiations, confirms that the international community has come to a consensus that indigenous peoples are a concern of international law, which translates into the existence of customary rules of binding force for all States irrespective of whether or not they have ratified the relevant treaties”.

Some key examples of such customary rules of international law have been suggested by the International Law Association:

  • Indigenous peoples’ right of self-determination to decide what their future should be, within the territories in which they traditionally lived;
  • The right to be represented in the national government;
  • The right to participate in national decision-making with respect to decisions that may affect their rights or their ways of life;
  • The right to be consulted with respect to any project that may affect them;
  • The right that any project that may significantly impact their rights and ways of life not be carried out without their prior, free and informed consent;
  • The right to regulate autonomously their internal affairs according to their customary law and to establish, maintain and develop their own legal and political institutions, in a way that is consistent with the rules on fundamental human rights;
  • The right to recognition and preservation of their cultural identity;
  • The right to use ancestral lands and natural resources according to their own tradition;
  • The right to profess and manifest their religion in community with the other members of the group;
  • The right to pursue their traditional medicines and burial traditions;
  • The right to their traditional lands and natural resources;
  • The right to restitution for ancestral lands from which they have been removed;
  • The right to redress for any breaches of these rights;
  • The right that all treaties and agreements with the state shall be honoured.

Relation of UNDRIP and Canadian Constitution

Legal Structural Issues

As we discussed above, UNDRIP, as one of Canada’s international commitments and a restatement of other binding international law, is a source for the interpretation of Canadian law. This is affirmed explicitly in the preamble of Bill C-15, as well as being the underlying common law. Given the importance of the rights contained in UNDRIP and their relation to well-established international law and human rights principles, this interpretive principle can and should include UNDRIP being used to interpret the constitution. This means using UNDRIP to inform the interpretation of Canada’s obligations to Indigenous peoples under s 35 of the Constitution Act, 1982, as well as other constitutional provisions as they uniquely relate to Indigenous peoples. It would be anomalous if s 35, which was adopted into the Constitution to protect Indigenous peoples and their rights, actually came to shield the Crown from the development of those protections to better reflect international law.

We note that this is the opposite direction of some interpretations being discussed – favoured by some and feared by others – that UNDRIP should be interpreted through the lens of Canada’s s 35 jurisprudence. Those aligned with resource developers tend to propose that Bill C-15 be clarified to say that UNDRIP should be interpreted through the lens of Canada’s s 35 jurisprudence. That, in turn, is what is feared by some pro-Indigenous commentators. But this is not the relationship between international law and domestic law, nor what Bill C-15 would enact.

FPIC

The debate about whether UNDRIP should inform the interpretation of s 35 of the Constitution Act, 1982 or vice versa is really triggered by concerns about whether UNDRIP’s “free, prior and informed consent” to developments that might affect their rights or way of life (FPIC) is a “veto” over development. It must also be considered how FPIC relates to s 35, the interpretation of which includes the concepts of justified infringement and the duty to consult and accommodate. Such issues often arise in relation to resource projects. Indeed, Canada initially refused to adopt UNDRIP because the federal government thought that FPIC was “inconsistent” with the Canadian constitution, and viewed it as non-binding and “aspirational”.

Hence, proposals abound (from those aligned with resource developers) that the law should be clarified to prevent the creation of an Indigenous veto (or an expectation thereof) over resource development projects. Our view is that such interpretations misunderstand both the content of Canadian law and of UNDRIP. It is not a matter of being “always a veto” nor “never a veto”. In our view, neither Canadian law nor UNDRIP provide for a sweeping Indigenous veto across the board. But both of them do require Indigenous consent in some circumstances. Further, even without FPIC being treated as a categorical “veto”, UNDRIP could advance the interpretation of the duty to consult.

Indigenous Consent is Already Part of Canadian Law

The duty to consult and accommodate arises when the Crown knows or ought to know that Aboriginal rights or title may exist (whether or not they are proven), and is considering action that may adversely affect such rights or title. It is well established that there is a spectrum of consultation and accommodation required, depending on the strength of the claim and the seriousness of the impact. For serious impacts on proven rights, consent may be required.

While courts have said that the duty to consult and accommodate is “not a veto” we view this as meaning that the duty to consult and accommodate is not always a veto, but that for a serious impact on a proven right, a project may not be permitted to go ahead without consent of the Indigenous group in question. In such a circumstance, it is not a matter of going through enough procedural steps—consent is a requirement.

Consider a situation where Aboriginal title has been established. The title holder would have the right to exclusive use and occupation of the land held. The Supreme Court in Tsilhqot’in confirmed that “the Crown must seek the consent of the title-holding Aboriginal group to developments on the land”. If the Crown fails to obtain such consent, it can only proceed in a way that does not substantially deprive future generations of the benefit of the land, and where it can meet a heavy test to justify the infringement. Simply granting land subject to Aboriginal title to non-Indigenous people cannot be done without consent.

The aspects that consent must be “free”, “prior” and “informed” are also already part of Canadian law. Courts have made clear that the process of consultation (even when consent is not required) must take place before decisions are made, must include the provision of appropriate information, and must not include coercive actions by the Crown. When consent is required, these considerations apply with even greater force.

UNDRIP’s FPIC

Similarly, UNDRIP’s FPIC requires governments to seek consent but is not an absolute veto either. Article 46 of UNDRIP provides for qualifications and limitations for the rights set out. Further, the UN Handbook for Parliamentarians on implementing UNDRIP distinguishes between when FPIC requires a government to “seek consent” and when it requires that consent be obtained.

In short, the requirement for consent exists in both UNDRIP and the s 35 jurisprudence, and it does not always amount to an absolute veto. What UNDRIP does is substantially widen the requirement for governments to seek to obtain consent in good faith, to include all situations where the rights of Indigenous peoples may be affected. This is wider than the duty to consult and accommodate. This is something which the courts will need to address as the law concerning s 35 develops.

Possible Impacts of Bill C-15

Stronger Source of Interpretation

As noted above, the Preamble to Bill C-15 is clear about using UNDRIP as a source for the interpretation of Canadian law. We propose it be even more emphatic and be more precise about the legal weighting and persuasiveness that UNDRIP’s principles should be given when interpreting Canadian laws and constitutional obligations. In any event, the current references would be a strong reminder signal to the Courts about how they are to use UNDRIP.

Reset Crown and Public Attitude

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UNDRIP is the Law

Bill C-15, if passed, would be a total repudiation of the idea, expressed by the previous Harper government, that UNDRIP was non-binding and “aspirational”. This alone should be a signal to Crown officials, resource developers and the public. While many of the substantive legal changes would have to await the Government’s own review process and the results of the Action Plan, the Bill affirms that UNDRIP applies in Canadian law. We would propose that it go further to recognize how, right now, it is a source of law in Canada.

Duty To Consult and Accommodate Process (“DTCA”)

The adoption of Bill C-15 could also give a push to the attitude with which Crown official approach consultations. The Supreme Court has been very clear that the DTCA process is not just an opportunity for Indigenous people to “blow off steam” before the Crown goes ahead with what it had intended all along (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69). Rather, it is supposed to be a good faith effort “with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue” (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73). Despite this, some Crown officials approach consultations as a matter of checking off all the right boxes of procedures that have been done, so that whatever decision that is in question can proceed as originally planned. Here is where UNDRIP could be of help, with its stress that the objective of consultations must be to obtain Indigenous consent.

Start of a Process

Bill C-15, if passed, would commence a process of developing an action plan to achieve the objectives of UNDRIP. The plan is to be prepared within the next three years, “in consultation and cooperation with Indigenous peoples.” There has been some criticism about this length of time. However, it is hard to imagine wide-ranging consultations with many different Indigenous governments taking less time than this. To implement UNDRIP without such consultation would be contrary to UNDRIP itself. Indeed, in addition to being explicit in Article 38 of UNDRIP, the guidance provided to parliamentarians for implementing UNDRIP stresses the importance of Indigenous participation in the development of legislation that affects Indigenous peoples, including legislation to implement UNDRIP.

Negotiating Tables

Many of the principles in UNDRIP are highly relevant to the matters being discussed at various negotiation tables with Indigenous groups concerning land rights and governance issues. The position Canada takes at these tables is strongly guided by federal policies. These policies are often at odds with the principles of UNDRIP, and, for that matter, at odds with some significant principles of Canadian domestic law. We therefore propose that Canada review its policies that govern negotiations with Indigenous Peoples and bring them into conformity with UNDRIP, in addition to a review of legislation.


With Kevin Hille and Jaclyn McNamara