| || ||Kala Pendakur |
Northern and Aboriginal Policy
Canada is moving through some significant changes in its relationship with Aboriginal people. And as we approach Aboriginal Awareness Week (May 24 to 27), we wanted to take a moment to place a spotlight on two recent and important decisions.
First, last month, in a 9-0 decision, the Supreme Court of Canada ruled that the term “Indians” includes non-status Indians and Métis. This came in response to the Daniels v. Canada case, launched in 1999, which sought three declarations1:
- that Métis and non-status Indians are “Indians” under S.91(24) of the Constitution Act;
- that the federal Crown owes a fiduciary duty to Métis and non-status Indians;
- that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests, and needs as Aboriginal peoples.2
Previously, Métis and non-status Indians were stuck in a “jurisdictional wasteland” between the federal and provincial governments. This decision has now extended the federal government’s responsibilities to include approximately 600,000 Métis and non-status Indians in Canada.3 The possible impacts of this decision will need to be studied further; but, as a starting point, it may serve as an opening for Métis and non-status individuals and groups to pursue land claims and seek access to additional government programs and services.4 Moreover, while the case does not impact who in Canada has “status” as a registered Indian, Claire Truesdale of JFK Law Corporation did note that it could be useful in future court cases “as Canada can no longer deny that it also has responsibility for Métis and non-status Indians and may be asked to justify why those groups are excluded from the benefits of status.”5
Notably, Supreme Court Justice Rosalie Abella stated that, as we look further into Canada’s history with Indigenous peoples, inequities are being increasingly revealed, but that “this case represents another chapter in the pursuit of reconciliation and redress in that relationship.”6
The second major decision involves the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted by the UN in 2007. Now, nearly 10 years later, Canada has officially decided to adopt the Declaration. Twenty-five years in the making, the declaration is an important instrument that asserts the collective rights of Indigenous peoples around the globe. Moreover, Canada’s Indigenous Affairs Minister, Carolyn Bennett, noted during her statement to the UN on May 10 that adoption is an important step toward reconciliation.7
UNDRIP, as it stands, is not a legally binding document, and how Canada works to implement it—as either an aspirational or a legal document—could have significant impacts on Canadian law.8 For instance, before UNDRIP was officially adopted, lawyers across Canada debated what the principle of “free, prior, and informed consent” (FPIC) would really mean. The principle, which refers to the rights of Indigenous peoples to provide or withhold their consent in decision-making processes that affect them and their lands—including in such areas as education, natural resource management, economic development, and health care—is mentioned in six articles of UNDRIP. The legal implications associated with the word “consent” in FPIC could have significant implications, as illustrated by statements from experts.9 Others pointed out that the current government has the opportunity to make it clear that FPIC can be integrated in our domestic laws in a fashion that works with our federal framework and constitution.10
These two decisions will have a significant impact on the future of Canada and its relationships with Aboriginal people from coast to coast to coast. How UNDRIP and the Daniels case will affect policy for industry and government is still to be seen. However, moving forward, all parties will need to pay close attention and take thoughtful and prudent approaches. Perhaps even more importantly, open dialogues among all parties (e.g., Indigenous individuals, government, industry) will be vital to ensuring progress.
If you would like to learn more about the possible implications of UNDRIP in Canada, watch our webinar “Understanding the Implications of the United Nations Declaration on the Rights of Indigenous Peoples in Canada,” presented by Tom Isaac, a nationally recognized authority in the area of Aboriginal law.