2. Questions & Answers

APPA’s Study on Implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act

February 2024

1. Consistency of Laws

1.1. Guidance and Training

Q. What is Justice doing to implement s.5?

A. Justice Canada’s initial efforts since June 2021, when the Act came into force, have focussed on raising awareness and providing training across government on the Act and the obligations it contains. Interim guidance to officials has encouraged departments to consider the UN Declaration early and often, and to identify where, when and how initiatives may impact on or intersect with the rights set out in the Declaration.

The Declaration and the Act are also informing the development of departmental legislative initiatives impacting the rights of Indigenous peoples. The Department of Justice has developed various guidance tools to assist officials in assessing consistency with the Declaration and compliance with the Act.

An example of where these efforts are having an impact on our work in Justice is Bill S-13, which proposes the addition of a s. 35 non-derogation clause in the Interpretation Act. Our policy work included a broad consultation and cooperation process with Indigenous peoples leading up to its introduction in June 2023.

Another example of where the UN Declaration is being used to help inform federal legal frameworks is the mandate of the Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites Associated with Indian Residential Schools. The mandate of the Special Interlocutor specifically notes that, among other things, the recommendations to improve legal processes to help identify and protect unmarked graves and burial sites associated with former Indian Residential Schools must be informed by the UN Declaration and the UN Declaration Act.

Q. What efforts have been made to raise awareness about Canada’s commitments under the Action Plan?

A. Since the Action Plan was officially launched on June 21, 2023, Justice Canada has worked with a range of partners to deliver training to over 2000 public servants through over 140 sessions.

Since the Act came into force, Justice Canada, Indigenous experts and other federal officials have provided training on the Act through two public service-wide events hosted by the Canada School of Public Service, which were attended by more than 4,000 federal officials.

In October 2023, Justice Canada also hosted an interdepartmental workshop that brought together over 300 officials from across departments and agencies to discuss and coordinate the implementation of the UN Declaration Act and, more specifically, the UN Declaration Act action plan.

Justice officials have also participated in and presented to a variety of external audiences across Canada at various conferences, meetings and to external advisory committees, such as the National Housing Council, the Canadian Institute for the Administration of Justice, the Conference Board of Canada, and the Association des juristes d’expression française de l’Ontario (AJEFO).

Such awareness raising and training efforts will continue as work progresses on implementing the Act and various action plan measures.

Q. What efforts have been made to raise Canadians’ awareness on UN Declaration, the UN Declaration Act and the Action Plan?

A. Since before Bill C-15 was introduced, Justice Canada, in collaboration with Crown-Indigenous Relations and Northern Affairs Canada, has been working on developing communications materials to raise awareness on the UN Declaration and its importance as a human rights instrument on the rights of Indigenous peoples and framework for reconciliation, healing and cooperative relations.

It is important that Canadians learn about the UN Declaration and the actions being taken at the federal level to implement the UN Declaration Act. We all have a role to play in better understanding the reality and current challenges faced by First Nations, Inuit and Métis. It is also key to educate about the importance of upholding, promoting, preserving and respecting the human rights of Indigenous peoples in Canada.

So far, to engage Canadians we’ve developed a website with comprehensive information about the UN Declaration, the Act and the Action Plan, supported by videos, translations of the UN Declaration in 14 Indigenous languages, and educational videos, including a video that we developed with Indigenous youth.

In the spirit of the UN Declaration, Justice Canada is looking forward to working in consultation and cooperation with First Nations, Inuit and Métis on the development of further public awareness material.

1.2. Consistency of Laws - Overall Implementation

Q. What progress is being made on implementing s.5 of the UN Declaration Act to ensure consistency between federal laws and the Declaration?

A. Section 5 of the Act calls on all government departments to work with Indigenous peoples towards ensuring that federal laws that impact the rights of Indigenous peoples are consistent with the UN Declaration.

Implementation of legislative measures related to consistency with the Declaration is already underway or, in some cases, nearing completion. This includes:

Discussions between lead federal departments and Indigenous peoples on other federal laws are also underway. An example is the work that Immigration, Refugees and Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA) are doing to consider potential amendments to various laws to help align them with the UN Declaration’s provision on Indigenous cross-border mobility. This work was also called for in measure 52 of the Shared Priorities chapter of the Action Plan.

2. Action Plan

2.1. Action Plan Development

Q. How was it developed? Who was consulted?

A. In December 2021, Justice Canada launched a broad, two-phased, inclusive and distinctions-based consultation and cooperation process with Indigenous peoples to advance the implementation of the UN Declaration Act. The consultation and cooperation process focused on working in partnership with First Nations, Inuit and Métis to better understand their priorities in order to shape the action plan and to begin to identify potential measures for aligning federal laws with the Declaration.

The process included cooperation with:

Canada released an initial consultation draft of the Action Plan in March 2023, after which there was intensive work with First Nations, Inuit, Métis and Modern Treaty partners to significantly enhance each of the chapters, including through co-development of language where possible.

This cooperative effort led to the finalization of the Action Plan in June 2023.

Q. Were all measures submitted by Indigenous partners included in the Action Plan?

A. The Action Plan’s 181 measures reflect, at a high-level, around 80% of the proposed measures submitted through more than 150 submissions from Indigenous partners.

If pressed on what measures weren’t included:

Measures not reflected include those that were solely within provincial jurisdiction, sought constitutional change or required additional time and consideration by implicated government departments to determine feasibility. Many other proposed measures had considerable overlap in the priorities they sought to address and are thus all reflected in one measure related to that respective priority.

2.2. About the Action Plan

Q. What is the overall purpose that the Action Plan sets out to achieve?

A. The overall objective of the Action Plan is to set out a federal roadmap for achieving the human rights objectives of the UN Declaration, in consultation and cooperation with Indigenous peoples.

The Action Plan’s measures address a wide range of priorities, including measures required pursuant to the Act to:

Other measures seek to advance self-determination and self-government; participation in decision-making; economic, health and social rights; cultural, religious and language rights; and education.

Q. Is the Action Plan a legal document?

A. The Action Plan reflects Canada’s firm commitment to take specific measures to advance implementation of the UN Declaration. While, it is not a legally binding document, its development in consultation and cooperation with Indigenous peoples was required under the UN Declaration Act within two years of the Act’s coming into force.

Q. What are the assurances that action plan measures will be implemented in a timely and effective way?

A. The Action Plan reflects the ambition of Canada and Indigenous peoples to make concrete progress in advancing and upholding Indigenous rights over the next five years.

As my colleagues and I have stated, many of the measures set out in the Action Plan are already underway or in planning stages, including in the areas of Indigenous justice, Indigenous languages, child and family services, Indigenous Guardians and Indigenous-Led Area Based Conservation, Indigenous health and education, training and awareness-raising across the federal public service, awareness raising to Canadians, and so much more.

The Government of Canada will work with First Nations, Inuit and Métis to prioritize and sequence implementation of the remaining Action Plan measures, working to balance the need for timely implementation with the need to consult and cooperate with Indigenous peoples, which requires a significant investment of time and resources for all. The Annual Report is a key tool to demonstrate accountability and provides a reflection of steps taken to date.

Q. Can the Action Plan be amended? How will new measures be added? Can Indigenous organizations or individuals submit ideas?

A. The Action Plan (measure 21) indicates Justice Canada will work with Indigenous peoples to co-develop and implement a process to review and update the Action Plan every five years, and a process for making amendments to the Action Plan. The Government of Canada will continue working with Indigenous peoples, including rights holders and their governing bodies and representative organizations, on options for reviewing and amending the Action Plan.

Q. Is there a deadline to complete all the Action Plan measures?

A. The Action Plan contains a wide range of measures which will need to be implemented over a range of timelines (short, medium and longer-term).

We are hoping to work with Indigenous peoples to prioritize measures which reflect key building blocks which will help unlock progress in other areas.

Lead departments will also need to work in consultation and cooperation with Indigenous peoples to develop implementation plans with reasonable timelines.

Annual progress reports will support transparency and accountability in monitoring the implementation of measures in the plan and reporting on progress.

2.3. Action Plan Overall Implementation

Q. How many government departments are listed in the Action Plan and who is responsible for implementation?

A. All federal departments and agencies have a role to play in implementing the UN Declaration and UN Declaration Act. There are 28 departments and agencies specifically designated as having a lead or supporting role in the Action Plan.

Justice Canada has the lead role in coordinating the implementation of the UN Declaration Act and Action Plan.

Q. How much will it cost to implement all of the Action Plan measures?

A. Since 2015, the federal government has made significant investments to respond to the unique histories, experiences and priorities of First Nations, Inuit and Métis.

Over the past 9 years, investments in Indigenous priorities have risen by 156%, from $11 billion annually to $29 billion annually (source: Budget 2023 – Investment in Indigenous Priorities – pages 122 and 124). These significant investments already provide a solid basis for implementation of the Action Plan going forward.

In addition, government departments and agencies will work in consultation and cooperation with Indigenous peoples to develop implementation plans for new measures, through which we will be able compile the information needed to support potential future funding proposals.

Q. Why include an Action Plan measure if the funding is not yet secured or identified? How will the country’s current fiscal situation impact on implementation?

A. The federal government is committed to the full and effective implementation of the Action Plan over the coming years. Funding to implement measures may come from pre-existing funding streams or, where needed, through future budget allocations.

If pressed on budget constraints/whether there will be any new funding for UNDA implementation in Budget 2024:

I’m not in a position to speculate on future funding. I can, however, say that all federal departments will be working to ensure we align our existing resources to Action Plan implementation and look forward to working with Indigenous peoples to ensure we’re maximizing the efficient use of the very significant investments in Indigenous priorities made over the past several years.

Q. Where has there actually been demonstrable progress on implementing Action Plan measures?

A. For some measures, implementation is already well underway or nearing completion.

For example, Bill S-13 was introduced in the Senate on June 8, 2023, and completed third reading on December 14, 2023. If passed, Bill S-13 would address Shared Priority Action Plan Measure 2 (first bullet) in adding a non-derogation clause in the Interpretation Act. This clause would explain that all federal laws should be interpreted as upholding the section 35 Constitutional rights of Indigenous peoples, unless Parliament has said otherwise in the law.

The Government of Canada has also made progress on Shared Priority 28 by developing, in consultation and cooperation with First Nations, Inuit and Métis, and in collaboration with provinces and territories, an Indigenous Justice Strategy to address systemic discrimination and the overrepresentation of Indigenous peoples in the justice system. To compliment Indigenous-led engagement, Justice Canada has also led engagements with a diverse representation of Indigenous voices across Canada through two waves. The outcome of the first wave of virtual dialogue sessions are captured in a What We Learned Report on the Justice Canada website. The outcomes of the second wave of in-person regional dialogue sessions, as well as broader virtual gatherings will be captured in a second What We Learned Report to be published in early 2024.

The release of the strategy is planned for 2024. The specific contents of the strategy are still to be determined. To date, Indigenous partners have emphasized that this strategy must address issues that span across the justice system continuum, from prevention to re-integration. This includes crime prevention, restorative and Indigenous justice approaches, revitalization of Indigenous justice systems and legal traditions, self-determination in the administration of justice and Criminal Code reforms.

The Action Plan also builds on a number of existing initiatives from across government that, while advancing their own goals, align with and contribute to achieving the objectives of the UN Declaration. Examples include the Indigenous Languages Act and its ongoing implementation; the First Nations, Inuit and Métis Children, Families and Youth Act, the Urban, Rural and Northern Indigenous Housing Strategy and the Canada’s Anti-Racism Strategy.

That said, and keeping in mind the ambitious and generational nature of this work, different action plan measures are at different stages of implementation and will proceed at different rates.

If pressed on progress made on C-38 and C-53

As Justice Canada is not the lead on these bills, I invite my colleagues Deputy Minister Gideon and Assistant Deputy Minister White to provide further details on these initiatives.

Q. How will provinces and territories be encouraged to collaborate on implementation?

A. Since the Action Plan is responsive to Indigenous priorities, it necessarily contains measures in areas of shared responsibility, like health, public safety and the administration of justice. Measures that specifically reference the need for provincial and territorial collaboration include space for this collaboration to occur as part of implementation.

The Government of Canada will continue to look for every opportunity to collaborate with provinces and territories to help advance implementation of these measures, including through existing federal-provincial-territorial tables.

For example, Justice Canada, along with the AFN, ITK and MNC, have provided information and updates to the FPT Ministers of Justice and Public Safety table since the Act was adopted in June 2021. The UN Declaration was also an important part of the recent discussion at the Indigenous-FPT Roundtable on MMIWG and 2SLGBTQI+ people held in Ottawa on February 7-8, 2024.

3. Annual Reporting

3.1. 2023 Annual Report

Q. If implementation of the UN Declaration Act is a “whole-of-Government” initiative, why are all departments and agencies not listed in the 2023 Annual Report?

A. The 2023 Annual Report includes updates on UNDA-related legislative initiatives advanced in 2022-23 by 14 federal departments. It also lists 32 federal departments and agencies with initiatives or programs aligned with the Declaration already underway.

As new priorities emerge, and as departments and agencies continue to develop their capacity to be responsive to these priorities, the departments and agencies listed in the Annual Report will increase over time.

Q. Why are items listed in UN Declaration Act Action Plan different than those listed in the 2023 UN Declaration Annual Report?

A. The Action Plan and the Annual Report complement each other. The Annual Report reflects back, while the Action Plan charts the actions to be taken moving forward. Together, they represent the Government of Canada’s commitment to implementing the UN Declaration.

3.2. Upcoming 2024 Annual Report

Q. When will the next Annual Report be released and what will it contain?

A. The next Annual Report will likely be tabled in Parliament in June or July 2024. Work is currently underway to develop an outline and reporting tools for the 2024 Annual Report in partnership with other government departments and Indigenous peoples. As part of the reporting process, Justice has developed a digital reporting tool that seeks implementation updates from departments. This information will be rolled up and form part of the Annual Report.

As the 2024 Annual Report will be the first following the release of the Action Plan, we will be working to track progress in a transparent manner which is also reflective of Indigenous peoples’ perspectives with a view to building trust with Indigenous partners that Canada is taking this accountability mechanism seriously.

Background:

The UN Declaration Act requires that the Annual Report be prepared, in consultation and cooperation with Indigenous peoples, within 90 days of the end of the fiscal year, and that it must be tabled on any of the first 15 days that the House is sitting after completion. This date will likely occur in the Summer of 2024.

Q. How are Indigenous peoples involved in the development of the 2024 Annual Report?

A. As Indigenous partners are integral to developing key indicators of success, Justice is creating a technical working group that will consist of Indigenous partners and representatives from key federal departments and agencies. Participants will include Indigenous representatives who have provided input on the previous two Annual Reports and on the Action Plan, including those who have expressed a keen interest and/or technical experience in the development of performance measurement tools, metrics, logic models and evaluation.

4. Consultation and Cooperation

4.1. Nature of the Obligation

Q. What does consultation and cooperation mean? How will you know when you have satisfied this obligation?

A. The key word is cooperation, which implies partnership. Canada understands consultation and cooperation to mean working in good faith together on a basis of equality towards a shared objective, through joint or collaborative processes.

The UN Declaration (notably Articles 18 and 19) underscores Indigenous peoples’ right to participate in decision making on matters that affect them.

Based on international commentary and our own experiences in Canada, we understand this to mean that Indigenous peoples should be able to meaningfully influence and inform the development and implementation initiatives which impact on their rights and interests. The intensity of cooperation may vary based on the degree of the potential impact of proposed measures or decisions on Indigenous peoples’ rights and interests.

Where the impacts on Indigenous peoples are very significant, we can look to co-development principles that have been or are being developed with First Nations, Inuit and Métis representative organizations as an important guide to what cooperation should look like.

The Action Plan itself also recognizes the need to do more work with Indigenous peoples to build a shared understanding of effective mechanisms for working together cooperatively going forward (see Shared Priority measures 66-68).

Q. How do you determine which Indigenous groups to consult and cooperate with to implement the UN Declaration Act?

A. The UN Declaration Act directs us to consult and cooperate with “Indigenous peoples” as defined in the Act, which in turn refers to s. 35 of the Constitution Act, 1982.

This definition therefore includes First Nations, Inuit and Métis as rights-bearing collectives, as defined by themselves, recognized through treaties and other constructive arrangements and informed by guidance provided by Canadian courts.

That said, there is no one-size-fits-all approach and different contexts and circumstances are likely to require different processes and arrangements.

Depending on the measure, the federal government will work in consultation and cooperation with First Nations, Inuit and Métis rights holders, governments and/or their representative organizations to advance implementation priorities within the Action Plan.

At the same time, consistent with the Canadian Charter, gender-based+ analysis and Article 22 of the UN Declaration, Canada must remain mindful of the need to consider the perspectives of Indigenous women and girls, elders, youth, persons with disabilities, gender diverse people and others whose voices may not always be heard.

4.2. Mechanisms for Cooperation with Indigenous Peoples

Q. How are you working with Indigenous peoples to advance implementation of the Action Plan?

A. Canada is looking forward to working with First Nations, Inuit and Métis through a range of tables and processes, including the distinction-based Permanent Bilateral Mechanisms (PBM), as well as Modern Treaty & Self-Government partner tables, where UN Declaration Act and Action Plan Working Groups have already been formalized or will be established in order to advance implementation work.

Justice Canada and all federal departments will also continue to build upon relationships created over the course of the Action Plan’s development with key Indigenous rights holders and their regional representative organizations as well as with Indigenous diversity groups, including women, youth, Elders, 2LSGBTQ+ and urban/off reserve organizations to advance measures during its implementation.

4.3. Link to the Right to Participation in Decision-Making

Q. What is the right to participate in decision-making and how is it being advanced?

A. Participation in decision-making is a key component of the UN Declaration and is linked to the right to self-determination.

Participation in decision-making is already implemented in many ways in Canada, from the duty to consult, to negotiated arrangements set out in treaties, self-government agreements and consultation protocols, to legislative frameworks designed to include Indigenous peoples in specific processes (e.g. impact assessment) and the development of distinctions-based co-development principles through Permanent Bilateral Mechanisms.

The Action Plan, including Shared Priorities measures 32, 66 and 68, provides a road map of work that will be undertaken in consultation and cooperation with Indigenous peoples to move beyond the status quo and enhance the participation of Indigenous peoples in decision-making.

Q. How does Canada see the concept of Free, Prior and Informed Consent as used in the UN Declaration?

A. References to “free, prior and informed consent” (FPIC) are found throughout the Declaration. They emphasize the importance of recognizing and upholding the rights of Indigenous peoples and ensuring that there is effective and meaningful participation of Indigenous peoples in decisions that affect them, their communities and territories.

More specifically, FPIC describes processes that are free from manipulation or coercion, informed by adequate and timely information, and occur sufficiently prior to a decision so that Indigenous rights and interests can be incorporated or addressed effectively as part of the decision-making process - all as part of meaningfully aiming to secure the consent of affected Indigenous peoples.

FPIC is about working together in partnership and respect. In many ways, it reflects the ideals behind the relationship with Indigenous peoples, by striving to achieve consensus as parties work together in good faith on decisions that impact Indigenous rights and interests. Despite what some have suggested, it is not about having a veto over government decision-making.

It is important to understand FPIC in context: different initiatives will have different impacts on Indigenous peoples’ rights. FPIC may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making.

There are many examples where collaboration, co-management or co-ownership are already taking place across the country. These types of approaches increase the credibility of the institutions and help to ensure the legitimacy of the decisions they make, which in turn helps to reduce litigation. Implementing the Declaration means building on these examples, looking for other ways in which we can work collaboratively on key issues, ensuring that decision-making processes include the space (including the time and information required) for Indigenous peoples who stand to be affected to participate in and influence the process.

4.4. Funding to Support Implementation

Q. What funding will be available to support consultation and cooperation with Indigenous peoples during implementation?

A. Budget 2022 provided $37 million in funding over five-years to support Indigenous peoples’ participation in Action Plan implementation. For 2023-24 and 2024-2025, $11 million in grants and contributions will be made available each fiscal year to support the core capacity of Indigenous governments, representative organizations and groups to contribute meaningfully to the implementation of the UN Declaration Act and Action Plan.

This funding will be distributed via grants to key partners and through an open Call for Proposals process that closed on January 30, 2024.

The remaining $15 million in funding is expected to be available to support Indigenous peoples’ participation in Action Plan implementation through to 2027/28.

Individual government departments may also make funding available to support consultation and cooperation with Indigenous partners during the implementation of measures under their respective leads.