by Rebecca Seward-Langdon On June 21st 2021, Bill C-15, An Act Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), received royal assent, meaning it passed through all the required stages before implementing it into Canadian law. But what does this actually mean? Is that it? Do Indigenous Peoples now have self-determination? What should we be aware of now that Bill C-15 is passed? These are some of the common questions I came across surrounding the new legislation. As organizations and individuals, there are a couple of things we should know and look out for as the government moves forward into the important stages following implementation of Bill C-15. Long history of systemic discrimination and injustice The new legislation is just one step in the long journey towards reconciliation. Indigenous peoples in Canada have faced systemic discrimination and legislative wars for over 150 years. The practices of the Doctrine of Discovery, terra nullius, residential schools, and the Sixties Scoop had major consequences.v These are processes of colonization which resulted in stolen land, families separated, and generational trauma. The effects remain prevalent today. Indigenous rights are still contested by construction on unceded land,vi Missing and Murdered Indigenous Women and Girls (MMIWG),vii unsafe drinking water,viii an overrepresentation of Indigenous children in the welfare system, and an overrepresentation of incarcerated Indigenous peoples—just to name a few. The Truth and Reconciliation’s Calls to Action & UNDRIP
The recognition and action for Indigenous rights is long overdue. The Truth and Reconciliation’s Calls to Action #43 and #44 call on all levels of government to implement UNDRIP, and for the Government of Canada to create a national action plan.
TRC Call to Action #43: Adopt and Implement the United Nations Declaration on the Rights of Indigenous Peoples.
#44: Develop a national action plan, strategies, and other concrete measures to achieve the goals of UNDRIP.
UNDRIP was the first international human rights declaration for Indigenous peoples, created by Indigenous peoples. Bill C-15 is an important legislation because it legally recognizes and defends Indigenous rights in Canadian law. In 2015, former MP Romeo Saganash proposed a private member’s bill, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Although Bill C-262 did not pass, it provided the foundation for Bill C-15, which the Minister of Justice and Attorney General David Lametti introduced in December 2020. Prime Minister Justin Trudeau and various federal departments committed to prioritizing and supporting the advancement of the legislation.
What is Bill C-15?
Functionally, Bill C-15 is a framework. Self-determination will depend on how UNDRIP is implemented through the review and alteration of laws. The Bill provides details on the process of creating a national action plan to implement UNDRIP.xv The Bill states that Canada must “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”.xvi Realistically, we don’t know how robust these measures will be. Nor will we know the extent to which Canada will change its laws. However, we do know that a national action plan will be published no later than two years after implementation.xvii The precise date is unclear. Bill C-15 requires the action plan to include:
(a) measures to
(i) address injustices, combat prejudice and eliminate all forms of violence, racism and discrimination, including systemic racism and discrimination, against Indigenous peoples and Indigenous elders, youth, children, women, men, persons with disabilities and gender-diverse persons and two-spirit persons, and
(ii) promote mutual respect and understanding as well as good relations, including through human rights education; and
(b) measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration.
The government is also required to publish annual reports assessing progress on implementation.xix Since consultation and cooperation with Indigenous peoples are required, Justice Canada indicated that the next step is to engage with Indigenous partners and identify measures to align federal laws with UNDRIP. Prospects of Bill C-15's effectiveness and implementation Indigenous policy analyst Russ Diabo argues that Bill C-15 is not adequate in recognizing Indigenous rights because it doesn’t actually make UNDRIP law.xxi Furthermore, section 2(2) of Bill C-15 recognizes and affirms section 35 of the Constitution Act, 1982, which upholds Doctrine of Discovery law and colonial, top-down relations with Indigenous peoples.xxii On the other hand, Romeo Saganash believes that the reference to section 35 should instead be interpreted as upholding the rights of Indigenous peoples rather than colonial policies and behaviour.xxiii The allotted time to develop an action plan was initially three years, but was reduced to two. Saganash acknowledges that the government knows this process will be lengthy and tricky.xxiv Indigenous perspectives will vary from region to region, nation to nation, groups to groups, and will therefore have a lot to take into consideration. Can Bill C-15 defend Indigenous rights? The bureaucratic process to implement UNDRIP seems to take forever. We won’t be able to read the action plan for another two years, let alone see adjustments to laws. So, what does this mean for Indigenous rights in the meantime? Mi’kmaw lawyer Dr. Pamela Palmater indicates that Canada’s laws and legal systems, including s.35 of the Constitution Act, 1982, do not protect Indigenous peoples.xxv This in and of itself is the very reason that implementing UNDRIP is an urgent matter. Indigenous rights must be recognized. Although UNDRIP itself will not be a legal document, Bill C-15 gives legal recognition of Indigenous rights that will be upheld in the courts because it comes from the federal level. Amplify Indigenous voices While the action plan is underway, it is important to educate ourselves on the prospects of Bill C-15—both good and bad. Debunking common misconceptions about Bill C-15 is a good start. As individuals and organizations, we should use our platforms to amplify and support Indigenous voices, while recognizing that there are diverse perspectives across Indigenous groups in Canada. In the following months and years, it is important that we continue to hold all levels of government, departments, and agencies within governments accountable to this new bill.