Unravelling Canada’s UN Indigenous action plan| Nick Leeson and Mariana Gallegos Dupuis

By Nick Leeson and Mariana Gallegos Dupuis

Law360 Canada (August 2, 2023, 9:46 AM EDT) --
Nick Leeson
Nick Leeson
Mariana Gallegos Dupuis
Mariana Gallegos Dupuis
The National Action Plan, the latest initiative on United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) implementation by the federal government, pledges to begin the process of incorporating UNDRIP into Canadian law. However, the plan is presently seen less as a blueprint for change and more as a source of increasing concern due to its vague language, broad oversights and a perceived lack of commitment to genuine reform.

The excitement that greeted the UNDRIP Act (UNDA) when it became law on June 21, 2021, has significantly waned with the introduction of the inaugural National Action Plan on June 21, 2023. The plan was meant to serve as a beacon for how to build a more equitable future. Instead, combing through the 181 “action items” that make up the plan leaves the reader with the distinct fear that implementing UNDRIP could become just another list of broken promises without systemic change.

This moment demands a deep breath and a thoughtful appraisal of the plan’s implications for Crown-Indigenous relations.

Dissecting National Action Plan

The action plan consists of five chapters, each devoted to specific topics: shared priorities and individual chapters for First Nations, Inuit, Métis and Indigenous Modern Treaty Partner priorities.

However, many measures within each chapter lack the necessary details to show how they will be achieved. For example, the plan pledges to fully implement Joyce’s Principle and to protect Indigenous women, girls and 2SLGBTQ+ people from coerced sterilization, but these measures depend on collaboration with provincial and territorial governments, an aspect not discussed in the plan. The plan’s implementation of UNDRIP only applies to federal laws.

The action plan risks merely echoing earlier failed promises without adding new steps toward essential goals. A glaring example of this is the plan’s reiteration of past promises to address insufficient access to safe water on reserves. These promises have been included as “actions,” but they are trapped in old rhetoric, with the plan lacking fresh, decisive steps or commitments toward this vital goal.

Yet, amidst these shortcomings, there are glimmers of hope. The action plan proposes two new Indigenous-led institutions with at least the potential to catalyze change.

1. Action Plan Advisory Committee (APAC): Comprised of First Nations, Inuit and Métis experts selected by their representative governments and institutions, the APAC would serve as counsel for UNDRIP implementation, if properly instituted.

However, its exact mandate and role remain shrouded in mystery. The plan stipulates that the APAC will “provide support and advice, upon request, related to the implementation of shared priorities included in this plan.” This, and calling it an “advisory” body, hints at a peripheral decision-making role. No additional information is provided.

It is paramount that Indigenous Peoples fill this void and seize the opportunity to amplify their voice for a more equitable decision-making role in UNDRIP’s implementation.

2. Independent Indigenous rights monitoring body: This mechanism is introduced under the banner of oversight and accountability in implementing UNDRIP, but its proposed powers and authorities are unclear. The stated purpose is to resolve disputes and address rights infringements. But aside from stating that the body will be adequately funded and accessible for Indigenous peoples, few details are provided.

Similar to the above, Indigenous peoples are calling for more detailed information and advocating for this body’s increased independence, capacity and powers.

During the brief “validation period” for the co-development of the action plan, many Indigenous governments appealed to Ottawa for an Indigenous-led intergovernmental forum to secure accountability for UNDRIP's execution in Canada. However, the action plan merely skims over an intergovernmental forum as a prospective future direction, offering no concrete commitment.

Vagueness, ambiguity of ‘actions’ in action plan

The language of the action plan may seem commendable at first glance, promising measures that can address injustices, promote respect and provide accountability for implementing UNDRIP. Yet, many of these promises are general and unspecific, offering no clear path forward. How and when will these goals be met? Which reforms will be made, and through what mechanisms? Regrettably, the plan neither specifies the funding allocated for these initiatives nor provides a timeline for their accomplishment, resulting in a lack of accountability and measurable goals.

Reflection of past missteps?

The government’s commitment to continuing existing actions, while seemingly positive, is revealed to be more of a shuffle than a leap forward. The “action items” often pledge to carry forward existing endeavours, like working on a new fiscal relationship with First Nation partners or advancing self-determination. Regrettably, there is no clarity on the funding earmarked for these efforts, nor a timeline to meet these goals. The resulting uncertainty casts a dark shadow over the plan’s potential impact on Indigenous communities.

To what degree is right to free, prior, informed consent (FPIC) defined in action plan?

The action plan fails to define how FPIC will function in Canada, which is deeply concerning considering that this is perhaps the most powerful element of how UNDRIP guarantees respect for the sovereignty and self-determination of Indigenous peoples. The plan merely pledges to upgrade the existing framework of consultation and accommodation to align with UNDRIP, but offers no roadmap to this goal. Absent details, there is a substantial risk that Canada will dilute its commitment under UNDRIP to guarantee Indigenous peoples the right to FPIC by effectively repackaging the duty to consult and accommodate.

Although the plan briefly promises to establish a “permanent Indigenous advisory committee to guide the federal approach to consultation,” it lacks detail on the scope and role of this committee. Sustained advocacy to crystallize the distinction between FPIC and the duty to consult and accommodate will be necessary.

Accountability, next steps

The National Action Plan is teetering on the edge of becoming another forgotten document, unless we press for comprehensive actions, unwavering commitments and absolute transparency. While the plan’s ambiguity may offer an opportunity for sustained Indigenous advocacy to shape the strength of UNDRIP's implementation, it also presents a risk of Canada simply repackaging old, failed strategies under a new label. Left to its own devices, the Crown will not decolonize itself. The success of UNDRIP’s implementation hinges on Indigenous advocacy to translate the plan’s abstract promises into concrete, actionable steps and iron-clad commitments.

Continuous feedback, progressive improvement and genuine accountability will be key in morphing the action plan into a living document that evolves in partnership with Indigenous peoples. Although the present National Action Plan doesn’t quite measure up to the groundbreaking tool it was expected to be, it can act as a crucial catalyst towards fostering a Canada where Indigenous rights, traditions and cultures are not merely acknowledged, but flourish. This potential, however, can only be unlocked by converting the plan’s ambiguous rhetoric into well-defined, clear and measurable steps and firm commitments that demand accountability from the federal government. As we look ahead, the enduring strength of continued Indigenous advocacy will be the deciding factor in embedding UNDRIP firmly into the bedrock of Canadian federal law.

Nick Leeson is a senior counsel with Woodward & Company LLP, a law firm located in Victoria, B.C. and Whitehorse, Yukon. His practice is based out of British Columbia, from where he represents Indigenous clients and interests from coast-to-coast-to-coast. Mariana Gallegos Dupuis is an articling student with Woodward & Company LLP. Her practice is based out of British Columbia, where she practises law for Indigenous clients.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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