British Columbia recently introduced groundbreaking provincial legislation to implement global standards for upholding the rights of Indigenous Peoples. Those rights are set out in the United Nations Declaration on the Rights of Indigenous Peoples.
At the time, Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs called it such a positive development that he wondered if he might be asleep and dreaming it all up.
I had the honour of being in the legislature when the Bill 41 was introduced and fully share Grand Chief Phillip’s sense of elation, pride and, yes, a certain amount of disbelief. It’s impossible to overstate the importance of this historic achievement — or the exhilaration over how far we’ve come.
The UN Declaration is the most comprehensive international human rights instrument setting out the inherent rights of Indigenous Peoples and the obligations of governments to honour, protect and fulfil those rights. Implementation of the UN Declaration is at the heart of the Truth and Reconciliation Commission’s 94 Calls to Action.
With the introduction of Bill 41, B.C. is on track to become the first government in Canada — and indeed anywhere in the English common-law world — to establish a legislative framework for putting the declaration’s human rights standards into concrete practice. In doing so, B.C. is not only making an important step toward reconciliation, it is setting an example for the rest of Canada and the rest of the world to follow.
Now comes the hard part: maintaining the courage of its convictions and fulfilling the promise of implementation.
Implementation questions linger
In some quarters, any talk of actually upholding the UN Declaration will spur anxiety and opposition. Readers may be familiar with the fact that Bill 41 is based on proposed federal legislation. Romeo Saganash’s private members bill, Bill C-262, died in the Senate in June 2019 after the delaying tactics of a handful of Conservative senators prevented it coming to a final vote.
Concerns over the implications of the UN Declaration have also popped up from time to time in B.C. media.
Speaking to the legislature after the bill was introduced, Cheryl Casimir, of the First Nations Summit, joked: “Did you hear that? The sky didn’t fall.”
I agree wholeheartedly. As someone who has intensively studied the UN Declaration, its content, its history and the work of Indigenous Peoples around the world to bring its provisions to life, I can say without hesitation that the fears and anxiety that have been stirred up around implementation are overblown and unwarranted.
Implementation of the declaration is already well under way, albeit in a patchwork and uncertain way. Courts, human rights tribunals and environmental impact assessment panels have already referenced and applied its provisions.
The importance of Bill 41 is that it provides a framework for the province to now engage more proactively so that implementation can unfold in a more predictable and consistent way. Bill 41 requires the province to develop a co-ordinated action plan “to achieve the objectives of the Declaration” and to report regularly to the legislature on the progress being made.
‘In consultation and co-operation with’
I was heartened to see the measured and cautiously optimistic response to Bill 41 from the Mining Association of B.C. After the introduction of the legislation, Mining Association CEO Michael Goehring told the Vancouver Sun:
“The truth is, the status quo has not engendered confidence in British Columbia’s economic future, nor has it served British Columbians or B.C.’s Indigenous communities.”
In contrast, Goehring said, implementation of the declaration could “enable greater certainty and predictability on the land base.”
The bill also requires that the government implement it “in consultation and co-operation” with Indigenous Peoples. The phrase “in consultation and co-operation” is crucial. The words come directly from the UN Declaration itself and signal the imperative of going beyond mere consultation to instead work together in what the declaration calls “a spirit of partnership and mutual respect.”
Legislative pathways have always been considered essential for domestic implementation of the UN Declaration. As the text of Article 38 states: “States, in consultation and co-operation with Indigenous Peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”
Various UN bodies have called for legislative measures and public policies to implement the rights recognized in the declaration, yet they also recognize that legislation alone is generally not sufficient.
Without a doubt, there is significant work ahead to identify, prioritize and implement the reforms needed to bring B.C. in line with the requirements of international human rights law. Even with the framework provided by the UN Declaration, it will not be quick or easy work to uproot the legacies of colonialism present in provincial law and policy.
While B.C. is about to become the first jurisdiction in the Commonwealth to adopt a legislative framework for implementation of the declaration, it will not be the first to develop an action plan for implementation. The collaborative development of a National Action Plan is already well under way in New Zealand.
The New Zealand government is working with the Maori people to identify key reforms necessary in their national laws and policies and co-develop their National Action Plan. As part of its process, the Human Rights Commission of New Zealand and Maori groups co-invited members of the UN Expert Mechanism on the Rights of Indigenous Peoples to visit and provide advice. The government of British Columbia should follow suit.
While the action plan developed in B.C. must adapt to the specific needs of Indigenous Peoples in the province, it’s important to remain engaged with the ongoing processes of how the declaration is interpreted and applied globally.
Doing so is an opportunity to set positive examples for other countries, to learn from what others are doing and to ensure that domestic interpretation of the declaration not diverge from its international human rights foundations.
Terry Teegee, the Regional Chief of the B.C. Assembly of First Nations, remarked after the introduction of Bill 41 that making history “is not for the faint of heart.” Further, Grand Chief Edward John of the First Nations Summit encouraged the Members B.C.’s Legislative Assembly to “be brave” as “change does require courage.”
Without a doubt, there is hard work ahead, both for the Horgan government and the Indigenous leadership in B.C.
It’s worth noting another historical aspect of Bill 41: it was co-developed between the Horgan government and the B.C. Assembly of First Nations, the First Nations Summit and the Union of B.C. Indian Chiefs.
In other words, a foundation for collaborative development of an action plan has already been established. The very fact that their collaboration has already resulted in the tabling of Bill 41 holds out hope for the progress that can be made by working together.