May 20, 2024

Tracking the progress of UNDRIP legislation in courts: vacuous political bromide, or a herald of substantive change?

Justice Kent asked if UNDRIP legislation is “vacuous political bromide” or a herald of substantive change, in the 2022 case of Saik’uz First Nation v Rio Tinto Alcan Inc.2022 BCSC 15 (which we blogged about here). Since then, different courts have taken different positions. In British Columbia, courts are currently treating UNDRIP as a non-binding international instrument. However, a Quebec court has taken the position that UNDRIP has a definite role to play when courts interpret domestic laws that may conflict with UNDRIP rights. Most interestingly, some justices of the Supreme Court of Canada appear to agree.

Putting this controversy into context, since 2007 when the U.N. General Assembly resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), over the objections of Canada, the U.S., Australia, and New Zealand, the role of UNDRIP in Canada has changed dramatically.

  • In 2015 the Truth and Reconciliation Commission recommended, as “call to action” #43, that federal, provincial, and other governments “fully adopt and implement” UNDRIP “as the framework for reconciliation.”
  • In 2019, BC enacted the Rights of Indigenous Peoples ActSBC 2019, c 44 with UNDRIP as a schedule (the “Declaration Act”, or “DRIPA”).
  • In 2021, BC also enacted s. 8.1(3) of the Interpretation Act, RSBC 1996, c 238 (the “IA”), which provides that, “[8.1] (3) Every Act and regulation must be construed as being consistent with the Declaration.”
  • Also in 2021, the United Nations Declaration on the Rights of Indigenous Peoples ActSC 2021, c 14 with UNDRIP as a schedule (the “Federal Declaration Act” or “UNDRIPA”).

Since then, courts have grappled with what these statutes mean in terms of their impact on BC law, and more generally, on Canada’s domestic law.

  • In 2023, the BC Supreme Court held that DRIPA does not “implement” UNDRIP directly as law, rejecting a proposition advanced by the BC Human Rights Commissioner — UNDRIP remains a “non-binding” international instrument: Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 at para. 470.
  • However, that same court held that IA s. 8.1(3) requires that courts consider UNDRIP when interpreting BC enactments. The court rejected a proposition by BC’s Attorney General that courts should only look at UNDRIP after interpreting an enactment, to see if UNDRIP supports or confirms the interpretive result: Gitxaala, at paras. 411-418. In other words, courts must presume the legislature kept UNDRIP rights in mind when creating laws.
  • Further, the court in Gitxaala did not address whether DRIPA gives UNDRIP legal status as an interpretive aid, apart from IA s. 8.1(3). If DRIPA makes UNDRIP an interpretive aid, then UNDRIP may have impact on the meaning of all laws of British Columbia, including BC’s common law. This matter forms part of a pending appeal to BC’s Court of Appeal.
  • Shortly after the Gitxaala decision, the issue of UNDRIP’s role as an interpretive aid became a national issue in late 2023. A Quebec court decided in R. v. Montour2023 QCCS 4154 [Montour] that Canada has, by enacting UNDRIPA (which has language similar to DRIPA) effectively adopted UNDRIP as if it were a ratified international treaty or convention, such that a presumption of conformity arises. In other words, courts should presume Canada’s domestic laws conform with UNDRIP, as if it were a ratified treaty.
  • In early 2024, the role of UNDRIP in Canada’s domestic law again came into issue given two important decisions of the Supreme Court of Canada:
    • First, the SCC held unequivocally that Canada’s UNDRIPA incorporated UNDRIP into Canada’s “positive law”, confirming that it is more than merely a “non-binding” international instrument: Reference re An Act respecting First Nations, Inuit and Metis Children, youth and families2024 SCC 5[Bill C-92 Reference (SCC)], at paras. 4 and 15.
    • Second, in a decision coming soon after, two Justices of the SCC concluded (albeit dissenting in result) that UNDRIP “is binding on Canada and therefore triggers the presumption of conformity”: Dickson v. Vuntut Gwitchin First Nation2024 SCC 10 at para. 317.
  • Furthermore, in early 2024 the SCC also affirmed the power of Canada to enact a federal statute which affirms Indigenous peoples’ “inherent right of self-government, which includes jurisdiction in relation to child and family services….” as recognized and affirmed under s.35 of the Constitution Act, 1982. Although not a case directly about UNDRIP, UNDRIP Article 4 provides for an Indigenous right of self-government. The SCC held that while “Parliament cannot bind the courts — in their capacity as guardians of the Constitution — or the provinces as regards the definitive interpretation to be given to s. 35,” a legislative affirmation may be “very meaningful on the ground,” as Parliament may bind the Crown to act in accordance with an affirmation: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families2024 SCC 5 at paras. 59-64.
  • Most recently, an island waterside residents association (the Pender Harbour and Area Residents Association) has issued a press release announcing it will be applying to the B.C. Supreme Court to challenge the constitutionality of DRIPA as beyond the province’s constitutional powers. In other words, some contend that DRIPA and UNDRIP cannot even operate as vacuous political bromide, and they oppose the project of reconciling Crown and Indigenous legal orders through UNDRIP legislation.

Looking into the future, the role of UNDRIP remains open to dispute. The Montour decision is under appeal to the Quebec Court of Appeal; Gitxaala Nation will be proceeding with an appeal to the BC Court of Appeal relating to the justiciability of conflicts between laws and UNDRIP rights; and the Supreme Court of Canada presumably lays in wait for an opportunity to further address the role of UNDRIP.

Lisa C. Fong, KC and Michael Ng