A New Federal Framework on the Recognition and Implementation of Indigenous RightsOn February 14, 2018, the federal government announced a new framework, including new legislation, to recognize and implement Indigenous rights (the “Framework”) in support of its commitment towards reconciliation with Indigenous peoples. The announcement follows the federal government’s endorsement of the United Nations Declaration of Indigenous Peoples (UNDRIP) and its support of Bill C 262, the United Nations Declaration on the Rights of Indigenous Peoples Act. While symbolically significant, the Framework currently lacks detail beyond its stated objective of renewing the relationship between the government and Indigenous peoples and providing greater self-governance rights to Indigenous peoples. The Framework’s content will be developed in the coming months through engagement with Indigenous peoples, all levels of government, industry, area matter experts, and the general public. The federal government plans to implement the legislation before October 2019. Anticipated Elements of the FrameworkThe Framework is expected to focus on establishing new mechanisms to implement Indigenous rights outside courtrooms, including creating:
With the Framework’s focus on “renewing” the relationship between government and Indigenous peoples, the issue of consultation will inevitably arise. While the duty to consult lies with the Crown, elements of the consultation process are often delegated to project proponents. It would be helpful if the Framework offers a clearer and more accountable consultation process. In addition, while the February 14 announcement did not specifically state how the Framework will incorporate either the federal government's Principles Respecting the Government of Canada's Relationship with Indigenous Peoples (the "10 Principles") or UNDRIP, we expect the Framework will align with the 10 Principles, some of which mirror the Framework’s objectives. One of the 10 Principles is that “[m]eaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.” The extent to which UNDRIP, and FPIC in particular, will form part of the Framework will be indicative of how far-reaching a reform the government intends the Framework to be. Next StepsEngagement on the Framework is underway and is focusing on:
Interested parties can participate by sending an email to droitsautochtones-indigenousrights@canada.ca, writing a letter to Indigenous and Northern Affairs Canada, attending an in-person engagement session (by invitation only) and through social media platforms. ImplicationsThe Framework will be the foundation that will define the relationship between Indigenous peoples, governments and project proponents. It could deliver a clear pathway for the Crown to satisfy its duty to consult and, where required, accommodate Indigenous peoples, which could help decrease the number of cases before the courts that allege insufficient consultation. If done well, the Framework could offer greater guidance and certainty in how Indigenous rights are reconciled in government decision-making affecting Indigenous peoples. However, until the Framework’s details are settled, the uncertainty will continue and the expectations of all parties will remain high. Authors
Please note that this publication presents an overview of notable legal trends and related updates. It is intended for informational purposes and not as a replacement for detailed legal advice. If you need guidance tailored to your specific circumstances, please contact one of the authors to explore how we can help you navigate your legal needs. For permission to republish this or any other publication, contact Amrita Kochhar at kochhara@bennettjones.com. |