Canadian Network of Agencies for Regulation (CNAR) 2019

CNAR held its 2019 conference in Quebec on October 28-30, 2019. Lisa C. Fong gave a presentation as part of the “Hot Trends in Professional Regulation” session, on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Here is her presentation, with updates below on the recent passage of Bill 41 – 2019 (“Declaration on the Rights of Indigenous Peoples Act”).

Current trend: UNDRIP

A current trend in professional regulation is the incorporation of principles contained in UNDRIP – the United Nations Declaration on the Rights of Indigenous Peoples – into professional regulatory practices and statutes.

In British Columbia, for the first time, we are seeing a professional regulatory statute, the Professional Governance Act, prescribe a mandate that regulatory bodies support reconciliation with Indigenous peoples and implement UNDRIP.

UNDRIP

The United Nations Declaration on the Rights of Indigenous Peoples is an international instrument that was adopted by the United Nations in 2007.

It enshrines the rights that constitute the minimum standards for survival, dignity, and well-being of Indigenous peoples of the world. The declaration is the product of almost 25 years of deliberation and consultation by U.N. member states and Indigenous groups around the world.

The declaration states that Indigenous people may fully enjoy human rights and fundamental freedoms.

It guarantees their right to practice their cultures and customs, their religions, and their languages.

It affirms their right to autonomy or self-government.

It affirms their right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions.

It recognizes their rights to their lands, territories and resources.

At the UN, UNDRIP was adopted by 144 countries, with 11 abstentions and 4 countries voting against it. Those four countries were Canada, the USA, New Zealand, and Australia. All of the objectors have now reversed their positions.

In May 2016, Canada dropped its objector status.

Implementation by Canada: In 2018, the House of Commons adopted Bill C262, a private member bill which requires that the Government of Canada take all measures necessary to ensure that the laws of Canada are in harmony with UNDRIP. It did not pass the senate review before the federal election, but the Liberal party pledged to implement UNDRIP, if re-elected. Given the Liberal party’s re-election, we are expecting a new bill to be introduced.

Implementation by BC: Last Friday, October 25, 2019, BC introduced draft legislation (Bill 41) to implement UNDRIP. Section 3 stipulates that, “In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”

The BC legislation envisions the creation of an action plan, and in addition, authorizes government to negotiate and enter into agreements with Indigenous governments to amend legislation to allow for joint exercise of statutory powers.

For professional regulators, UNDRIP has three core requirements to be implemented:

  1. non-discriminatory services, which will require cultural competencies on the part of professionals;
  2. delivery of services through Indigeous-led institutions; and
  3. Recognition and incorporation of traditional knowledge into professional services.

Lisa introduced three different groups of professional regulators in BC which are implementing the principles of UNDRIP.

Natural Resource Professions

The Professional Governance Act received royal assent in 2018, but is not yet in force. The Act applies to agrologists, applied science technologists, applied biologists, engineers, and forest professionals. In this Act, the regulators’ oversight body is the Superintendent of Professional Governance.

The mandate of the Superintendent includes (under s.7(2)(b))

“…promoting awareness among regulatory bodies to support reconciliation with Indigenous peoples in British Columbia, including supporting the implementation of the [UNDRIP]….”

Under s. 57(1)(f), each regulatory body under the Act must make bylaws establishing,

“…continuing education programs or requirements that support reconciliation with Indigenous peoples in British Columbia”.

To date, the BC government has engaged in consultations with First Nations with respect to the development and implementation of the Professional Governance Act. This is the first time, of which we are aware, that the government has consulted with First Nations to develop a regulatory statute. Their consultations with First Nations have resulted in advice from First Nations that:

  1. First Nations should be co-authors of statutes and regulations;
  2. the definition of “public interest” should include Indigenous interests;
  3. Indigenous interests should be directly incorporated into regulations, and not a mere matter of policy or discretionary procedures;
  4. First Nations should have a role in compliance and enforcement;
  5. First Nations peoples must be involved in natural resource planning, and land use planning, in their own territories;
  6. First Nations should lead the development of professional competencies for professionals which ensure that professionals understand
    1. Indigenous rights and Crown obligations, and
    2. the applicability of First Nation traditions, laws and knowledge in their professional work.

We’re looking forward to seeing how and whether the Superintendent’s office will address this advice from First Nations in overseeing resource regulators.

The Teaching Profession

The teaching regulation branch in BC is another professional regulator that has announced its commitment to the implementation of UNDRIP.

As of June 19, 2019, professional standards for BC teachers now expressly mandate, in new Standard 9, that teachers

  • “respect and value the history of First Nations, Inuit and Metis in Canada…”
  • “contribute towards truth, reconciliation and healing”; and
  • “foster a deeper understanding of ways of knowing and being, histories, and cultures of First Nations, Inuit and Métis”.

With respect to ways of knowing and being, the standards clarify that educators must understand “the power of focusing on connectedness and relationships to oneself, family, community and the natural world,” and integrate First Nations, Inuit and Métis worldviews and perspectives into learning environments.

The goal of the new standard is to foster a deeper understanding of Indigenous histories, cultures and perspectives, and to ensure that current and future generations of school children will come through the education system with a firm grounding on why reconciliation with Indigenous peoples is important.

Health Professions

In 2017, 23 health regulators in BC signed a Declaration of Commitment to Cultural Safety and Humility in the regulation of health professionals serving First Nations and Aboriginal people in British Columbia. This Declaration is consistent with UNDRIP and with the calls for action by the Truth and Reconciliation Commission of Canada in 2015.

The Declaration of Commitment advances cultural safety and humility as a high priority. It commits to engaging with First Nations and aboriginal people in BC directly to co-develop action strategies, and to embed cultural safety and humility at all levels of professional regulation.

To date, health regulators have manifested this commitment in different ways. For example, the Royal College of Physicians and Surgeons of Canada, which establishes standards for training and certification, will soon require all residency programs in every province to provide Indigenous health and cultural safety training. The Royal College reports that few residency programs offer any cultural safety training, and if they do, it is usually lumped together with global health topics. It is also reported that Indigenous trainees are often called on to teach their cultures without compensation or support.

Medical consultants engaged in this issue recognize that they must break down the fears surrounding Indigenous traditional medicine, and that residency programs should involve engagement with serving Indigenous peoples. There is also the recognition that there must be a safe space for residents to examine their own biases, and any distorted conceptions of Indigenous culture. The Royal College has indicated that it will work with Indigenous communities to ensure that the framework it develops is culturally appropriate.

In British Columbia, if Bill 41 comes into force [update: which is now the case, and we will address this further in our regulatory round-up in January 2020], First Nations may seek agreements with the province to expressly require that standards of practice include culturally-competent training and care. Given the advances of health regulators in BC, the work to comply with UNDRIP is already underway.

Is your regulatory regime applying UNDRIP principles?

The UNDRIP principles were adopted by the U.N. in 2007. While the adoption by Canada has been slow, the trend to adopt UNDRIP’s principles is clear. While the recognition of UNDRIP principles is not federal law, and only the province of BC is currently tabling a bill to give force to UNDRIP, there is a clear trend in our society, including in professional regulation, to reconcile with Indigenous peoples. So regardless of whether Canadian law requires that statutes be consistent with UNDRIP, all professional regulators should be looking at how their regimes are implementing UNDRIP principles.

Update

Bill 41 received royal assent on November 28, 2019. We will address the Act further in our regulatory round-up in January 2020.

The Ministry of Health’s Steering Committee on Modernization of Health Professional Regulation set out, in its recent report of November 2019 (released Nov. 27, 2019), that the steering committee supports implementation of UNDRIP and commits to honouring UNDRIP (page 4).

Lisa C. Fong and Michael Ng