National Chief Bulletin: Update on Federal Bill to advance implementation of the United Nations Declaration on the Rights of Indigenous Peoples

SUMMARY:

Since my last Bulletin, Minister of Justice David Lametti tabled Bill C-15, United Nations Declaration on the Rights of Indigenous Peoples Act on December 3rd, 2020.
This proposed legislation is the culmination of generations of advocacy by First Nations nationally and internationally. Chiefs-in-Assembly have repeatedly called for implementation legislation for the Declaration since it was adopted by the UN General Assembly 13 years ago. Assembly of First Nations (AFN) Resolution 86/2019 Support for Federal Legislation to Create a Framework to Implement the UN Declaration called for the introduction of federal legislation by the end of 2020. The federal government responded with a commitment to do so, in the Speech from the Throne in 2019 and 2020.
Preliminary legal analysis indicates that Bill C-15 contains key elements that Chiefs-in-Assembly mandated the AFN to work toward. It is consistent with former Private Member’s Bill C-262 as ‘the floor’ and contains several enhancements. It contains strong language affirming our inherent right to self-determination, highlights the urgent need to respect and promote our rights affirmed in Treaties and commits the Government of Canada to an action plan that includes measures to combat and eliminate all forms of violence and discrimination, including systemic discrimination.
I invite all Chiefs, Proxies and First Nations to attend the forthcoming AFN Virtual Annual General Assembly on December 8-9 (Registration) where this critical legislation will be discussed. The Prime Minister and Minister of Justice will attend on December 8th. On December 9th, a plenary panel will present on this development and provide legal analysis.
AFN legal team member Mary-Ellen Turpel Lafond has prepared a preliminary comparison table of federal Bill C-15 as compared to Bill C-262 that is attached to this bulletin for your review.

BACKGROUND:

In 2007, following more than 25 years of global advocacy by First Nations and other Indigenous peoples, the UN Declaration was adopted by the United Nations General Assembly (UNGA). Since then, the UNGA has reaffirmed the Declaration several times. Canada is part of numerous consensus resolutions of the UN calling on states to work with Indigenous peoples to develop national action plans and other measures to support implementation, including legislation such as that tabled today.
In 2018, Bill C-262 was passed by the House of Commons. Subsequently however, it failed to pass in the Senate of Canada due to a filibuster by a small minority of Senators, preventing it from moving to third reading and passage.
Following this, Chiefs-in-Assembly passed Resolution 86/2019. This Resolution called for; a collaborative process to introduce legislation to implement the Declaration as government legislation by the end of 2020; and to ensure such legislation fully respects the Declaration; and establishes the content of Bill C-262 as the floor rather than the ceiling.
AFN Executive Committee Motion 2019-12 called for the creation of a Legal Team to engage with the Department of Justice (DoJ) on the federal UN Declaration legislation initiative. This team was led by legal experts, Chief Wilton Littlechild, Mary-Ellen Turpel-Lafond and Paul Joffe.
The Speech from the Throne in 2020 committed the government to introduce legislation to implement the UN Declaration by the end of 2020. Canada publicly accepted the content of Bill C-262 as the floor for any government bill and reflected that in a consultative draft. The federal government indicated that the purpose of its engagement was to enhance or strengthen the consultative draft through input from Indigenous peoples.
From the end of September into November 2020, DoJ received input, and engaged in dialogue on potential enhancements to the consultative draft from First Nations Rights holders, First Nations Provincial/Territorial organizations and National Indigenous Organizations.
The AFN Legal Team focused on ensuring that DoJ was fully cognizant of the status of international law affirming the inherent rights of First Nations under the UN Declaration; as well as the broader body of international law. This includes binding international Treaties affirming the equal right of all peoples to self-determination.
The AFN Legal Team engaged in dialogue with DoJ officials to address misinformation and unfounded fears raised by opponents of First Nations rights, as well as speaking to legal issues such as the relationship between the rights of Indigenous peoples under international law and the Constitution of Canada.
The AFN Legal Team also identified opportunities to strengthen DoJ’s consultative draft to reflect key developments in international law that uphold and respect First Nations Treaty and inherent rights, title, and jurisdiction.
The Crown carries the responsibility to engage with First Nations directly and the AFN is not a replacement for nation-to-nation dialogue to meet Crown legal obligations

CURRENT STATUS:

The Minister of Justice introduced Bill C-15 for First Reading today (December 3, 2020).
Mary Ellen Turpel-Lafond has prepared the attached Comparison Table of Federal Bill C-15 and Bill C-262 with Commentary to assist you in your own review.

NEXT STEPS:

The AFN will analyze Bill C-15’s content against Chiefs-in-Assembly Resolutions and will share updates with First Nations.
Bill C-15 would need to be advanced to second reading and referral to a Parliamentary Committee for study.

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