FEATURE COMMENTARY
THE APPLICATION OF THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES TO INCREASE ACCESS TO JUSTICE DREW The Bill itself is a relatively short LAFOND piece of legislation, comprised
MLT AIKINS LLP of a 23-paragraph preamble and
On June 21, 2021, the (“Bill C-15) received Royal Assent and immediately came into force, bringing Canada one step closer to implementing the “Declaration”).
(“UNDRIP” or the
Canada’s history with UNDRIP has been filled with hesitation and trepidation. In 2007, Canada was one of only four countries in the United Nations General Assembly that opposed the adoption of the Declaration. In 2010, Canada announced some qualified support for the Declaration, describing it as a “non-legally binding document” and “aspirational”.1 Over the next decade, several private members’ bills would be introduced into Parliament seeking to implement UNDRIP into Canadian law. In 2016, the Honourable Carolyn Bennet, the then-Minister of Indigenous and Northern Affairs, announced that Canada fully endorsed the adoption of UNDRIP.2 However, it was not until Bill C-15 that any legislation was passed to fully affirm the application of UNDRIP in Canada.
seven clauses. The purpose of Bill C-15 is two-fold: first, it affirms that the Declaration is a universal international human rights instrument with application in Canadian law; and second, it provides a framework for the federal government to implement the Declaration. Bill C-15 aims to achieve the latter by creating a requirement that the federal government, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP. It requires the preparation and implementation of an action plan to achieve the objectives of UNDRIP and includes reporting requirements for accountability purposes. UNDRIP is a broad document, as the Declaration sets forth both the rights that Indigenous peoples are guaranteed under international law and sets out the minimum standards for guaranteeing the individual and collective rights of Indigenous peoples. An important objective that runs throughout the Declaration is the recognition of Indigenous peoples’ rights to self-determination, autonomy, and self-government. These rights are expressed throughout the Declaration, and are interspersed among the recognition of other cultural, traditional, economic and land rights. UNDRIP highlights the right of Indigenous
peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations. The Declaration also makes specific mention of the right of Indigenous peoples to access justice. This is set out in Article 40 of the Declaration, which provides as follows:
This Article acknowledges that the recognition of Indigenous customs, traditions, rules and legal systems are an essential part of making the justice system accessible. As was stated by the Truth and Reconciliation Commission (“TRC”) in 2015, it is necessary for reconciliation that Indigenous customs, traditions, and laws are recognized and applied in Canada’s justice system.3 This was the foundation of the TRC’s Call to Action number 50:
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