Don’t expect Bill C-15 to be perfect, just better

I’m finding there just aren’t that many perfect solutions to problems as I’d like there to be. One example is Bill C-15, the federal government’s response to its latest promise to implement the United Nations Declaration on the Rights of Indigenous Peoples. If passed, Bill C-15 would require the federal government to take all measures necessary, “in consultation and co-operation with Indigenous peoples,” to ensure that the laws of Canada are consistent with the Declaration, to prepare and implement an action plan to achieve the objectives of the Declaration, and to report each year on its progress. Who could complain about Canada implementing the most comprehensive international instrument that exists on the rights of Indigenous peoples? Unfortunately, as usual, the devil is in the details. The Declaration consists of 46 “articles” addressing the full range of interactions between a “state” and Indigenous peoples such as education, health, culture, lands, resources, etc. These are written in UN-style language, and it’s fair to say that people differ widely on the meaning of some of these articles. The topic that consumes most of the debate is “free, prior, and informed consent” (FPIC). I hope most people will agree that Indigenous people have the right not to be relocated from their lands without their free, prior, and informed consent. But when the Declaration says that Indigenous peoples must give their free, prior, and informed consent before an activity can take place in their traditional territory, does that really mean that Indigenous peoples have to give their consent before an activity can take place in their traditional territory? The federal government says that they don’t. According to the government, “FPIC” doesn’t actually require consent but rather free, prior, and informed “striving to achieve consensus.” This sounds a lot like what B.C.’s minister of Indigenous relations and reconciliation said when B.C. passed similar legislation. Then, just a month later, the Union of B.C. Indian Chiefs issued a statement supporting the blockade of the Coastal GasLink pipeline (remember the first thing that shut down Canada this year?): “e fully expect B.C. to uphold the new provincial legislation that applies the United Nations Declaration on the Right of Indigenous Peoples to B.C. laws. Free, prior and informed consent of the proper Title and Rights holders impacted must be achieved prior to the approval of any project affecting their land, territories and other resources.” FPIC, and other differences in interpretation, wouldn’t be as much of an issue if Bill C-15 made it clear that the Declaration is intended to be implemented through consultation and co-operation, but the bill isn’t intended to make the detailed aspirational language in the Declaration itself part of Canadian law. Unfortunately, the bill isn’t clear. Having set the table for consultation and co-operation with Indigenous peoples on what the Declaration means, it appears that for some reason the government may be content to unleash hordes of lawyers to rush off and try to convince judges of their own interpretations. This doesn’t seem like a good policy choice to me, but I appreciate good policy and good politics rarely overlap. Bill C-15 is also unclear on its impact on provincial, territorial, and municipal laws. It acknowledges that other governments can establish their own approaches to implementing the Declaration but then doesn’t have any language that makes it clear that it’s not intended to have any effect on other governments. To the contrary, the government says that by affirming the Declaration has application in Canadian law, the Declaration, “is an important source to interpret provincial and federal law.” Six premiers have already written expressing their concerns. With respect, do we really need another round of divisive federal/provincial court battles? The Truth and Reconciliation Commission called on all levels of government to adopt and implement the Declaration as the framework for reconciliation. The TRC didn’t say that this could only be done through legislation and didn’t call on the federal government to impose the Declaration on other governments’ reconciliation efforts. Theoretically, Bill C-15 holds great promise as another tool in our reconciliation toolkit. It would force the federal government to the table to address how we can finally end discrimination against Indigenous people and would require the government to be publicly accountable for its actions (or inactions)—something that appears to be needed. However, by not being clear, Bill C-15 promotes litigation over negotiation and potentially impacts other governments’ paths to reconciliation. We have lots of big problems in Canada. Canada’s relationship with Indigenous peoples may be our most intractable—but also provides us with our greatest opportunity. We shouldn’t expect Bill C-15 to be perfect, but it definitely could be better. Sandy Carpenter is co-founder of Canadian Regulatory and Indigenous Law, a regulatory and Indigenous law boutique. He is a past president and member of the board of the Canadian Energy Law Foundation and has taught Environmental Law and been a guest lecturer at the University of Calgary. The Hill Times