UNDRIP bill won't alter Canada's legal framework, federal officials tell Senate committee

Senior federal government officials told a Senate committee Tuesday that a private member's bill on the UN Declaration on the Rights of Indigenous People (UNDRIP) won't turn the international document into a federal law or alter Canada's legal framework.

Senior officials with Justice Canada and Crown-Indigenous Relations appeared before the Senate's standing committee on Aboriginal peoples to respond to questions on Bill C-262, a bill introduced by NDP MP Romeo Saganash that would ensure federal laws are in harmony with UNDRIP.

Laurie Sargent, Justice Canada assistant deputy minister with the Aboriginal affairs portfolio, said the bill is not written to make UNDRIP part of federal law, but simply reinforces a longstanding principle that allows governments and courts to use international standards to interpret domestic law.

"It can inform the interpretation of federal legislation where relevant," said Sargent.

UNDRIP was decades in the making and adopted by the UN General Assembly in 2007. After voting against it, along with the U.S., New Zealand and Australia, Canada later endorsed the document in 2010. No country currently opposes the document.

UNDRIP is a framework that affirms the rights of Indigenous Peoples to language, culture, self-determination and traditional lands. It also establishes "minimum standards for the survival and well-being" of Indigenous Peoples, according to the UN.

Bill C-262 passed the House of Commons a year ago but still needs to make it through the Senate before it can receive Royal Assent and become law. It is currently before the Senate's committee on Aboriginal peoples after passing second reading.  

Conservative senators have been accused of stalling Bill C-262 at second reading by federal ministers, Indigenous leaders and non-government organizations.

Debate over meaning of free, prior and informed consent

Federal officials also provided the committee with their interpretation of one aspect of UNDRIP that has proved contentious.

UNDRIP's provision on the need for free, prior and informed consent from Indigenous Peoples before their lands or rights are infringed on by the state has raised questions from Conservative senators worried this would mean Indigenous Peoples would gain a veto over resource development under Bill C-262.    

"There is no international or domestic agreement on the meaning of the principle of free, prior and informed consent," said Ross Pattee, assistant deputy minister in the implementation sector for Crown-Indigenous Relations.

He said the government was following a definition of consent outlined by James Anaya, a former UN special rapporteur on the rights of Indigenous Peoples, Pattee described as "making every effort toward mutual, acceptable arrangement, allowing Indigenous people to genuinely influence the decision making process."

"It's about building consensus and working together in good faith," said Pattee.

Sen. Murray Sinclair, who also testified before the committee Tuesday, said the focus on whether consent was the same as a veto was completely wrongheaded.

Sinclair said consent has been embedded in how both the British Crown and Ottawa have dealt with Indigenous Peoples, from the Royal Proclamation of 1763 — which decreed restrictions on the purchase of Indigenous lands — to the treaties which required consent to be ratified.

"I understand the politics that goes around this and I understand that people are eager to look for simple concepts," said Sinclair.

"People who use the concept of veto and the concept of free, prior and informed consent as though they are the same thing are totally missing the point."

Wilson-Raybould once called idea of bill 'unworkable'

Conservative Sen. Scott Tannas also pressed federal officials to explain why the government was supporting Sagnash's bill when, in a 2016 speech to the Assembly of First Nations, then-justice minister Jody Wilson-Raybould told chiefs that adopting UNDRIP into federal law would be "unworkable" and a "political distraction" from the "hard work" of implementing it.

"There was a shift and I am not going to get into the reasons for that," said Sargent.

"There was a general sense that C- 262 provides a useful frame, a framework. It's not the full picture."

In separate testimony, Saganash said he disagreed with Wilson-Raybould's comments at the time. He said UNDRIP provides the minimum standard for the government's dealings with Indigenous Peoples.