UNDRIP is gaining traction in Canada, and bringing significant constitutional questions for the Canadian legislatures, governments, courts, and citizens to consider. To recognize the profound nature of this emerging legal issue, a team of Boughton lawyers will be tracking through a quarterly series and commenting on the development of UNDRIP in Canadian law.
Introduction: What is UNDRIP?
The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) is an international human rights instrument, adopted by the United Nations General Assembly in 2007. It’s purpose is to protect individual and collective rights of Indigenous people and establish minimum standards for the survival, dignity, and well-being of Indigenous peoples globally.
UNDRIP is not an international treaty and is not enforceable as a treaty. It is a declaration that contains 46 articles which outline the human rights that it seeks to recognize. Some examples of these articles include the right to self-determination[1], cultural and language preservation[2]; freedom from forced assimilation[3], the right to lands, territories, and resources[4]; the right to the right to participation in decision-making[5]; and the principle and right of free-prior and informed consent[6].
Canada’s Unique History with UNDRIP
When UNDRIP was initially adopted by resolution of the General Assembly of the United Nations in 2007, Canada voted against its implementation along with Australia, New Zealand and the United States voting against its implementation. At the time, Canada expressed concerns about UNDRIP’s incompatibility with the Constitution and Canadian common law.
In 2010, Canada reversed this position and formally endorsed UNDRIP as an aspirational document in a manner fully consistent with Canada’s Constitution[7] and in the spirit of reconciliation.
In 2015, Canada’s Truth and Reconciliation Commission – an agency established to address historical and ongoing injustices against Indigenous Peoples – released its final report which stated that UNDRIP is the framework for reconciliation in Canada and called for all levels of government to adopt and implement UNDRIP as the foundation for addressing the rights and needs of Indigenous peoples.
In 2016, the Government of Canada announced its full support for UNDRIP and committed to its full and effective implementation through a constitutional framework.[8]
Since 2016, Canada’s relationship with UNDRIP has evolved significantly through legislation and court cases across all Canadian federal, provincial and territorial jurisdictions. Currently there are three jurisdictions that have passed UNDRIP legislation:
In 2019, British Columbia became the first jurisdiction in the world to pass legislation incorporating UNDRIP as law through the Declaration on the Rights of Indigenous Peoples Act, [SBC 2019] Chapter 44 (“BC DRIPA“). DRIPA commits the province of British Columbia to harmonize its laws with UNDRIP and outlines processes for collaboration with Indigenous nations in the province.
In 2021, the federal government enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C 2021, c.14 (the “Canada DRIPA“) which is similar to the purpose of the B.C. DRIPA, and also sets out a statutory framework for consulting and cooperating with Indigenous nations on its implementation through an action-plan.
In 2023, the Northwest Territories became the third jurisdiction in Canada to enact UNDRIP legislation with the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, SNWT 2023, c. 36, (“NWT DRIPA“) which acknowledges in the preamble that Indigenous Governments or Organizations of the Northwest Territories have signed a Memorandum to support the implementation of the Act. Similar to the BC DRIPA and the Canada DRIPA, the NWT DRIPA sets out a process-approach to developing laws and policies to give effect to UNDRIP principles in domestic law. Section 4 states that the NWT DRIPA binds the Government of the Northwest Territories.
Timeline of UNDRIP in Canada
Court Challenge: Whether UNDRIP was implemented into BC Law
In Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, the Supreme Court of British Columbia analyzed the BC DRIPA and found it to be an aspirational document which did not implement UNDRIP into domestic law[9].
Gitxaala Nation and Ehattesaht First Nation have challenged this conclusion in the British Columbia Court of Appeal, and are seeking a declaration that UNDRIP was implemented into the law. The Court of Appeal heard arguments from the parties over three days, beginning on January 20, 2025 and has reserved its decision.
Several other court challenges are also underway which we are monitoring and will be summarized by our team in future publications.
Emerging Issue: Effect of UNDRIP on the Interpretation of Canadian Law
Through these developments, a complex issue is emerging: what specific effect will UNDRIP have on the evolution, interpretation, and enforcement of Canadian law?
While it is clear that UNDRIP is gaining traction with Canadian governments, legislatures and courts, the actual effect of UNDRIP on Canadian law is far from clear. In 2024, the Supreme Court of Canada stated that “[UNDRIP] has been incorporated into [Canada’s] positive law by the [Canada DRIPA]”[10], but did not clarify how and left the task of interpreting this significant statement to the lower courts.
This uncertainty may result in important questions such as:
Further complicating these questions, UNDRIP may evolve differently across the different jurisdictions of Canada, and even within those jurisdictions based on different areas of law.
Key Takeaways
While the current and future effect of UNDRIP on Canadian law is unclear and may vary by jurisdiction, its interpretation and application will continue to evolve based on legislative developments, judicial decisions and government policies.
In the near future we may see more jurisdictions considering UNDRIP legislation, more court challenges, and more complexity in this national process of interpreting UNDRIP and what it means for Canadians.
Our team is closely monitoring this important issue and will be summarizing new developments as they arise. Stay tuned for our upcoming articles as we continue to provide updates on this transformative period in Canadian law and policy.
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