Year in recap: consistency of laws

Section 5 of the UN Declaration Act states that the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure federal laws are consistent with the UN Declaration. This is an obligation relevant to developing new legislation and amending existing federal laws when they impact Indigenous peoples’ rights. The Action Plan also includes specific measures directed at advancing implementation of section 5 generally, and measures aimed at specific regulatory and legislative initiatives.

A number of existing legislative frameworks contribute to advancing the objectives of the UN Declaration and are specifically designed to include the participation of Indigenous peoples in their implementation, or in related processes. Since the last reporting period, various pieces of legislation relevant to ensuring consistency with the UN Declaration have been moving through the legislative process and new legislative and regulatory initiatives have been developed in consultation and cooperation with Indigenous peoples. With the tabling of the Action Plan, specific Action Plan measures are themselves meant to advance implementation of section 5 in the coming months and years.

Legislative initiatives relevant to section 5 – key highlights

On February 9th, 2024, the Supreme Court of Canada (SCC) gave its unanimous opinion in the Reference re An Act respecting First Nations, Inuit and Métis Children, Youth and Families⁠Footnote 1 (Reference). Writing as “the Court”, the Justices found that the legislation supports the objectives of the UN Declaration and the UN Declaration Act. This is the first time the SCC has commented on the role of specific legislation in contributing to achieving the objectives of the UN Declaration. The Court noted that An Act respecting First Nations, Inuit and Métis Children, Youth and Families was an example of legislative reconciliation that was undertaken in close consultation and cooperation with Indigenous peoples. The Court’s opinion in this reference aligns with ongoing work associated with Shared Priority measure 29 and Métis measure 5 – both of which focus on the implementation of the Act.

Of the six legislative initiatives specifically reported on last year, two have come into force and are now law: An Act to Amend the First Nations Fiscal Management Act, to make consequential amendments to other Acts, and to make a clarification relating to another Act (previously Bill C-45) which received Royal Assent on June 20, 2023, and An Act to provide for the establishment of a national council for reconciliation (previously Bill C-29). Bill C-29 received Royal Assent on April 30, 2024. This initiative also helps to implement the Truth and Reconciliation Commission Calls to Action 53-56, which call on the Government of Canada to establish a National Council for Reconciliation.

As of March 31, 2024, three of the other legislative initiatives noted in last year’s annual report are before Parliament:

Several new legislative or regulatory initiatives aligned with section 5 also advanced between April 1, 2023, and March 31, 2024, and others, like the introduction of proposed amendments to the Impact Assessment Act (Bill C-69, introduced April 16, 2024), will continue to advance in the current fiscal year. While a more detailed list can be found in Annex C, initiatives up to March 31, 2024, include:

Early learning and child care

An Act respecting early learning and child care in Canada (short title: Canada Early Learning and Child Care Act) received Royal Assent on March 19, 2024. This legislative measure reflects the Government of Canada’s commitment to ensuring families in Canada have enduring access to affordable, inclusive and high-quality early learning and child care (ELCC).This initiative relates to Shared Priorities measure 103 in the Action Plan, which involves continuing to advance and support self-determination in the provision of culturally competent early learning and child care for Indigenous children. This is to be achieved through a co-developed Indigenous Early Learning and Child Care (IELCC) Framework and dedicated federal investments to support its implementation. Ongoing implementation of the Canada-wide ELCC system includes the IELCC initiative, which is guided by partnership tables with representatives nominated by respective leadership from First Nations, Inuit and the Métis Nation at national and regional levels. The tables work in collaboration with federal partners to facilitate Indigenous-led planning, priority setting, and decision-making.

Haida Nation governance and self-determination

Bill S-16, An Act respecting the recognition of the Haida Nation and the Council of the Haida Nation (Haida Nation Recognition Act), is at third reading in the Senate. The legislation affirms the Government of Canada’s recognition of the Haida Nation as the holder of inherent rights of governance and self-determination. If passed, the legislation will formally recognize the Council of the Haida Nation as the government of the Haida Nation. The Council is mandated, through The Constitution of the Haida Nation, to conduct the external affairs of the Haida Nation and to steward the lands and waters of Haida Gwaii on behalf of the Haida Nation. The Nang K̲’uula • Nang K̲’úulaas Recognition Agreement given effect by this Bill was negotiated with the Haida Nation. Consistent with the UN Declaration, Canada will continue to work with the Council of the Haida Nation to respect, uphold, and affirm the rights of the Haida people.

Sustainable jobs

Bill C-50, Canada Sustainable Jobs Act, is at the report stage in the House of Commons. The proposed sustainable jobs legislation will create a framework to allow for ongoing dialogue with Indigenous peoples as part of Canada’s approach to sustainable jobs. The Sustainable Jobs Partnership Council, proposed in this bill, will include three members who represent Indigenous peoples on a distinction basis.

Consultation and cooperation with Indigenous partners

This section includes reflections on the implementation of section 5 of the UN Declaration Act over the last year, both from Indigenous peoples and organizations and from federal departments and agencies engaged in this work. Two main themes have emerged from input received: transparency and clarity regarding the section 5 implementation process, and effective participation in associated consultation and cooperation processes.

Transparency and clarity in implementation

The mandate letters of all federal ministers direct them “to implement the United Nations Declaration on the Rights of Indigenous Peoples and to work in partnership with Indigenous peoples to advance their rights.” Ensuring consistency of federal laws (including regulations) in consultation and cooperation with Indigenous peoples is also the work of every minister and department. Many departments have shared information on how they have worked with Indigenous peoples to advance this goal, as summarized in the annexes to this report.

Justice Canada has developed several tools and training materials to provide federal officials with information about the UN Declaration Act. Interim guidance on the application of section 5 of the UN Declaration Act has also been developed, informed by views shared by Indigenous peoples during the course of developing the Action Plan. Several departments have further adapted this general interim guidance into their own internal approaches on assessing consistency with the UN Declaration.

These interim approaches are just the beginning. Building on the work to date, the implementation of Shared Priorities measure 1 is intended to contribute to greater clarity, consistency, and transparency on the section 5 implementation process, including associated consultation and cooperation. As the Government of Canada works toward implementing Shared Priorities measure 1 in consultation and cooperation with Indigenous peoples, it is continuing to learn from experiences. Planning has begun in anticipation of initial consultation and cooperation on Shared Priorities measure 1 over the coming months.

The Government of Canada has worked to develop and will continue to build national and regional processes and bilateral relationships with Indigenous partners including, though not limited to, the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC)-led Permanent Bilateral Mechanisms. These partnerships are opportunities for cooperative work to advance implementation of section 5. Workplans, terms of reference and associated structures have been or are being developed with some national and regional representative bodies. These various processes and bilateral relationships will be used to work together on priority issues associated with section 5 of the UN Declaration Act.

As awareness about the UN Declaration Act and the section 5 obligation has increased, more departments and agencies are actively considering how to consult and cooperate with Indigenous peoples on legislative or regulatory initiatives that particularly impact them, to ensure consistency with the UN Declaration. Identifying best practices and learning from the experiences of Indigenous peoples – including as reflected during annual reporting cycles – will also contribute to greater awareness and application of the obligations described in this part of the UN Declaration Act.

Parliament has also been playing a role in bringing transparency and accountability to this requirement, including by asking sponsoring Ministers, officials and others about what consultation and cooperation has occurred on legislation that is being debated and studied (see for example the many questions raised by the Standing Senate Committee on Indigenous Peoples in relation to Bill S-13, and their related ongoing study to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021. This study is expected to conclude in 2025). Parliament has also been asked to consider potential amendments to proposed legislation relating to the UN Declaration during the course of the parliamentary process.

Both Indigenous peoples and federal officials see the need to ensure that section 5 of the UN Declaration Act is implemented with clarity and transparency and with Indigenous peoples’ meaningful participation in related consultation and cooperation processes. Federal government departments continue to learn from experience and through training and sharing lessons learned and best practices across departments and with Indigenous peoples.

Ongoing training and awareness raising

The Government of Canada has raised awareness and continues to provide training across departments for federal officials, including federal lawyers, to understand and fulfill their section 5 obligations. Further, Shared Priorities measure 14 commits the Government of Canada to develop and implement foundational training co-created by Indigenous subject matter experts for federal public servants. The training is intended to build fundamental understanding and competence about the history and rights of Indigenous peoples in Canada. Cooperative development of this training is underway. In the meantime, Justice Canada and other departments have been proactive in seeking to ensure that public servants understand the obligations set out under the UN Declaration Act. The events listed below describe some of these training and awareness raising activities:

  • A public service event on UN Declaration Act implementation was delivered in partnership by Justice Canada and the Canada School of Public Service on October 17, 2023. Over 1,800 federal officials attended. Indigenous panelists and federal officials spoke about their experiences and perspectives related to implementation of the UN Declaration Act. Short videos of the event have been created to make the training available as part of a new learning portal on the UN Declaration and UN Declaration Act and will be made available online in 2024.
  • On October 18 to 19, 2023, Justice Canada’s UN Declaration Act Implementation Secretariat hosted an interdepartmental workshop focused on bringing together officials from across departments and agencies to discuss and coordinate the implementation of the UN Declaration Act and the Action Plan. Over 130 officials from 35 federal departments and agencies attended in person, with an additional 225 officials listening online.
  • Eleven in-house introductory and advanced UN Declaration Act training sessions were delivered through Justice Canada’s Centre for Legal Education Services to federal officials, reaching over 500 federal officials and over 450 Justice Canada lawyers.
  • Natural Resources Canada (NRCan) and Justice Canada collaborated to provide training to 574 employees working at NRCan and the agencies under the department’s portfolio, with an emphasis on section 5 and other UN Declaration Act obligations. Most participants said that the sessions meaningfully increased their knowledge of the UN Declaration and the UN Declaration Act, and many voiced an interest in learning more about related topics.
  • Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) developed and piloted a two-hour training module on human rights, the UN Declaration, the UN Declaration Act and the Action Plan, and how to integrate a UN Declaration lens into departmental work. Training was provided to 254 employees, and a joint training session with Indigenous Services Canada (ISC) reached 390 CIRNAC and ISC employees.
  • Indigenous Services Canada (ISC) held educational awareness and training sessions to promote departmental awareness of the UN Declaration and the UN Declaration Act through an internal UN Declaration Network and presentations to almost 1000 employees.
  • Presentations on the UN Declaration Act were also delivered to specific departments and a variety of interdepartmental committees and working groups, including Fisheries and Oceans Canada and the Department of National Defence, the Interdepartmental Strategic Policy Directors General Working Group and the Advancing and Influencing Reconciliation (AIR) Network. Presentations were also part of learning days in areas including legislative drafting and information and privacy law.

Indigenous partners’ reflections

When asked to provide perspectives on progress in relation to section 5 of the UN Declaration Act, some Indigenous partners indicated that the Government of Canada has not been transparent in explaining how this obligation will be fulfilled. Indigenous partners noted that there is uncertainty and a lack of clear direction amongst some departments about how to implement section 5. As a result, they find it difficult to assess whether an initiative is consistent with the UN Declaration. Indigenous partners expressed a need for departments and agencies to be more proactive in sharing information about their initiatives and processes and emphasized the importance of early and ongoing communication and adequate timelines for participation. Ongoing work to implement section 5 related Action Plan measures, including Shared Priority measure 1, and the continued refinement of annual reporting processes should help to address some of these concerns over time as both federal government departments and Indigenous peoples gain experience in implementing the UN Declaration Act.

Some Indigenous partners also observed that the Government of Canada has been implementing the consistency of laws obligation without sufficiently consulting and cooperating with Indigenous peoples. Indigenous partners described a need to be provided with accessible information and resources, including digital formats, to participate in all aspects of section 5 implementation. Others emphasized the importance of addressing injustices and combatting all forms of discrimination including systemic discrimination as part of implementing the UN Declaration, including through ensuring the consistency of laws.

Participation in consultation and cooperation on measures to ensure consistency of laws

While there were Indigenous partners who reported being involved in specific legislative or regulatory processes, several indicated that they would have liked to be involved in other specific initiatives as well. In more than half of the written submissions received, Indigenous partners reported that they were not asked by federal government departments or agencies to participate in specific legislative or regulatory initiatives that affect them, though many indicated a desire to do so.

Some Indigenous partners indicated that Indigenous organizations, like the Assembly of First Nations, Inuit Tapiriit Kanatami and Métis National Council, seemed to be the ones primarily involved in the federal government’s consultation and cooperation process. A concern was also raised that by focusing on a distinctions-based approach to consultation and cooperation, the Government of Canada was not involving other Indigenous groups, such as Indigenous people living off-reserve and in urban centres. However, in some instances where the interests are more localized, Indigenous partners acknowledged that CIRNAC, ISC, Employment and Social Development Canada (ESDC), and NRCan have undertaken consultation and cooperation with local representative bodies, smaller representative institutions, organizations, and governments. Continuing work on consultation and cooperation approaches that respond to specific contexts will contribute to the meaningful participation of Indigenous peoples in processes impacting them and their rights.

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