By Nigel Bankes
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, was adopted by the House of Commons on May 30, 2018. It is currently in the Senate awaiting further debate on second reading. The Bill is a private member’s bill introduced by NDP MP Romeo Saganash, but in November 2017 the government indicated that it would support adoption of the Bill.
The Bill comprises a nine paragraph preamble, six operative sections (including one section which provides the short title of the Act) and a Schedule which includes the Declaration. I think that the Bill strikes a judicious balance by affording the Declaration some immediate “application” in the laws of Canada, but also creates a process that will, over time, give greater effect to the Declaration within the Canadian legal system - and in doing so, slowly decolonize Canadian law and the Canadian legal mind.
My comments here focus on four sections of the Bill: section 3 which deals with the legal effect of the Declaration and sections 4 through 6 which are process and future oriented.
Section 3 is a declaratory statement as to the legal effect of the Declaration. It proclaims that the Declaration is “hereby affirmed as a universal international human rights instrument with application in Canadian law." This formulation gives rise to two questions. First, does the language “of application in Canadian law” serve to incorporate the Declaration into Canadian law? And second, if the answer to the first question is negative what other legal effect might it have?
As to the first question, my conclusion is that the language “of application in Canadian law” cannot in and of itself transform the Declaration into Canadian law or incorporate it into domestic law. I have three reasons for that conclusion. First, and as the Supreme Court of Canada has recently reaffirmed in the Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at para 51: “Incorporation by reference requires clear language.” Second, Parliament must be taken to be cognizant of the range of terms that have been used in other federal statutes when the goal is to give the force of law to something like an international agreement. Those other terms are much more explicit as to the intended legal effect than the words “of application in Canadian law”. Third, read as a whole, including the preamble and the process-oriented provisions that follow section 3, the intent of the Bill is to establish the Declaration as a standard against which to measure Canadian laws and to bring those laws into conformity with the Declaration over a period of time. It is not the intent of the Bill to make the Declaration law as of the date that the bill itself attains the force of law. Another way to put this point is that if section 3 is read as making the Declaration immediately a part of Canadian law, there would be little need for the conformity analysis (section 4) and the action plan (section 5).
But if the language “of application in Canadian law” does not serve to incorporate the Declaration into Canadian law, what is the legal effect of this language? I think that the best way to answer this question is to first ask what use Canadian courts and tribunals have made of the Declaration up to this point in time. We can then ask how the “of application” language might change or clarify matters.
The Declaration has been referred to in over 50 court cases and about 15 tribunal decisions in Canada. The cases have dealt with a wide variety of issues including adoption, self- government, control of funds, duty to consult, education, medical treatment and discrimination. I think that we can discern two lines of authority in the cases with respect to the use of the Declaration as a relevant normative instrument to be taken into account when interpreting Canadian laws or constitutional doctrine.
On the one hand, there is a line of cases that emphasizes that the Declaration is merely a declaration and not a treaty, and that while Canada might have endorsed the Declaration, in doing so it declared that it was aspirational and not customary law and therefore not something that a court should rely upon. Perhaps the clearest example of this approach is Justice Hinkson’s 2014 decision in Snuneymuxw First Nation v. Board of Education – School District #68, 2014 BCSC 1173. On the other hand, there is another line of cases which has already embraced the Declaration. Justice MacTavish’s early decision in Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 demonstrates the potential warmth of this embrace. In that case Justice MacTavish concluded that it was possible to look at the Declaration for three purposes: (1) to prefer an interpretation of a statute (in that case, the Canadian Human Rights Act) that is more consistent with Canada’s international obligations, (2) to inform the contextual approach to statutory interpretation, and (3) to identify values and principles that should inform the interpretation of the legislation.
In sum, it might be said that a consensus has yet to emerge from the case law as to the normative weight that should be accorded to the Declaration. And with this conclusion as background we can now ask again what might be the legal implications of the term “of application in Canadian law”?
I think that if section 3 is enacted, it will be impossible for a Court or tribunal to take the nihilistic approach of Justice Hinkson and deny outright the normative relevance of the Declaration. Making the Declaration “of application” will allow, and indeed require, a court to use the Declaration for all of the purposes referenced by Justice MacTavish and with respect to both statutes and regulations and constitutional doctrine. Furthermore, since the section references the Declaration as a whole, I do not think that it should be necessary for a Court to inquire as to whether a particular provision of the Declaration represents customary international law. In choosing this language, parliament must be taken to have endorsed the domestic relevance or applicability of the entire text of the Declaration, whatever its status in international law.
We can now turn to sections 4 through 6. As noted above, these sections are much more process oriented and future oriented than is section 3. Both sections 4 and 5 demand that the Government of Canada act “in consultation and cooperation with indigenous peoples”. Section 4 instructs the Government of Canada that “it must”, in consultation and cooperation with indigenous peoples “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration. This obligation applies to both existing laws and regulations, but it must also apply to proposed new laws and regulations. It is effectively an instruction to decolonize Canada’s laws and regulations at the federal level. This will be a major undertaking and considerable thought will need to be given to structuring an appropriate process that does in fact involve “consultation and cooperation” with Indigenous Peoples. What might this look like? Could it perhaps be structured in the form of a law reform commission with commissioners drawn from different backgrounds and with different representational responsibilities (and a multi-year mandate to carry out its task)? Evidently, decisions as to the appropriate structure will themselves require “consultation and cooperation” and indeed co-development as some witnesses put it in testimony to the House Standing Committee during its consideration of Bill C-262.
Section 5 instructs the Government of Canada, again in consultation and cooperation with Indigenous Peoples, to develop and implement a national action plan “to achieve the objectives” of the Declaration. This too will require considerable effort and allocation of resources. Unlike the consistency analysis required by section 4, section 5 is not concerned with the laws of Canada. Instead, it is concerned more generally to ensure that the objectives of the Declaration are being attained. There will be room for debate as to how to elicit the objectives of the Declaration.
Finally, section 6 requires the Minister to submit a report to the House and the Senate on the implementation of the government’s obligations under sections 4 and 5 for each of the next 20 years, specifically the “measures” referred to in section 4 and the action plan referred to in section 5. This is evidently a transparency and accountability measure since tabling in both Houses provides the opportunity for questions and debate.
The emphasis on procedure in sections 4 and 5 and the accountability mechanism referenced in section 6 begs the question as to whether or not the obligations assumed by the Government of Canada and by the Minister in these sections are justiciable. To be clear, I think that section 3 is justiciable and that courts will have to decide what the words “with application in Canadian law” mean. This will inevitably also lead the courts to interpret different provisions of the Declaration. But sections 4 and 5 combined with section 6 stand on a different footing and in my view, at least some of the elements of those sections are likely not justiciable: see Friends of the Earth v Canada, 2008 FC 1183.
In sum, sections 4, 5 and 6 offer the promise of systemic and systematic change. Whether that promise will be realized will depend very much on how the two processes (the consistency analysis and the action plan) develop and the extent to which the necessary resources are made available for implementation. Properly resourced, these processes should make a significant contribution to the actions necessary to achieve reconciliation.
This comment is an abridged version of a blog posted on ABlawg on November 27, 2018 http://ablawg.ca/wp-content/ uploads/2018/11/Blog_NB_Bill_C-262_Legislative_Implementation_ of_UNDRIP_November2018.pdf