Completing the UN Declaration consistency analysis

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Analysis of an initiative’s consistency with the UN Declaration should be reflected throughout the MC and associated materials, as applicable. The analysis is comprised of two broad stages.

First stage of assessment: Potential intersections between the proposal and the UN Declaration

The first stage of your analysis should be broad in scope to identify any potential intersections between your proposed initiative and the UN Declaration. This means considering the subject matter of your proposal and its potential impact on the rights and interests of Indigenous peoples (First Nations, Inuit and Métis), be they direct, indirect, positive or negative. This applies equally to legislative, regulatory, policy or programmatic measures that are intended to apply specifically to Indigenous peoples, as well as those that are not. Broader initiatives may have potential differential impacts on Indigenous peoples that should be surfaced through this analysis.

Research and data

Identifying potential intersections with the UN Declaration requires disaggregated data and information about the realities of the diverse Indigenous peoples in Canada. It is important that your sources include Indigenous voices and perspectives.

At this first stage of the analysis, these perspectives may be obtained from public documents prepared by Indigenous governments and representative organizations, as well as from reports from other consultation processes.

It is important to keep in mind that not all Indigenous nations, groups or communities have the same perspectives or opinions, and they are not mandated to speak on behalf of all Indigenous peoples. To get a complete picture, the sources should be varied and include both quantitative and qualitative information.

It is also important to take an intersectional approach to this first stage of analysis by assessing how different identities overlap or are compounded by one another. For example, searching for Indigenous data disaggregated by different identity factors, including age, gender, socioeconomic status, geography and others, will provide evidence about groups who might be disproportionately affected by the proposed initiative.

This assessment should involve, wherever possible, a review of any past consultation or cooperation with Indigenous peoples on the subject matter. Resolutions and other public statements made or adopted by Indigenous governments, communities, and representative organizations can also be considered to benefit from Indigenous perspectives already expressed. Where appropriate, the perspectives of Indigenous peoples can be supplemented by academic research and other expert reports.

When gathering data and information, it is important to recognize and challenge any unconscious biases that may affect the type, scope and source of data and information collected. We all have assumptions and biases. The Government of Canada’s GBA Plus tools provide useful methodologies for overcoming unconscious biases. For example, you may wish to ask yourself:

• What disaggregated data are available to understand the various dimensions of the issue?
• Am I prioritizing certain factors or data over others?
• Who should be involved in gathering and analyzing data to reflect a diversity of perspectives?

At the first stage of the assessment, you are strongly encouraged to consider engaging with Indigenous peoples to obtain the information that you need. This engagement could occur with representatives of rightsholders, academic experts, grassroots organizations, or others. Consider also whether you should take proactive steps to collect data from historically underrepresented voices, such as Indigenous women, Elders, 2SLGBTQIA+ persons, persons with disabilities, youth and individuals living off reserve.

Proposals that intersect with the rights in the UN Declaration could include, for example, legislation, legislative amendments or regulations that:

• Specifically relate to First Nations, Inuit or Métis
• May directly or indirectly impact the economic, social or cultural rights of Indigenous peoples, for example, education, Indigenous languages and traditional knowledge, health, housing and social services for Indigenous peoples
• May directly or indirectly impact Indigenous peoples’ civil and political rights, including internal elections, governance structures and leadership, equality rights, and labour rights
• May directly or indirectly impact Indigenous peoples’ right to a healthy environment, as well as Indigenous peoples’ relationship with their traditional lands, territories and resources, including Aboriginal or treaty harvesting rights (for example, in relation to wildlife, fish, and others)

There may be some proposals that will not intersect with the rights in the UN Declaration, as they do not have the potential to have a tangible impact on Indigenous rights and interests. In these cases, you are not required to proceed to the second stage of the analysis. An example of a proposal that is unlikely to intersect with the rights in the UN Declaration is a proposal with little substantive content. In such cases, you should record the analysis that supports your decision not to proceed to the second stage.

If any potential intersections between the proposal and the UN Declaration are identified, you must undertake the second stage of the assessment to assess whether the proposal is inconsistent with the UN Declaration.

Second stage of the assessment: Consistency with the UN Declaration

Once you have identified areas of potential intersection between your proposed initiative and the rights and objectives of the UN Declaration, the next step is to assess whether your initiative furthers the implementation of those rights (has a positive impact) or may be inconsistent with them (has a negative impact).

This stage will require some level of consultation and cooperation with Indigenous peoples, and your assessment should be informed by the perspectives of the representative institutions of the implicated Indigenous peoples.

In collaboration with your LSU, you will need to determine the scope and breadth of consultation required by the UN Declaration Act, and the best way to go about it (see section about Consultation and cooperation with Indigenous peoples). If your department has an Indigenous relations or reconciliation team or equivalent, they may also be a helpful resource. The assessment may need to be adjusted over time in light of further dialogue with Indigenous peoples and their representative institutions.

Officials should also recognize that government assumptions about possible impacts may inadvertently omit or misconstrue the perspectives of Indigenous peoples, and officials should therefore consider ways to reach out to representative institutions, including Indigenous governing bodies. It is also important to note that approaches and mechanisms for consultation and cooperation continue to evolve and develop, and further guidance or materials may be developed over time.

We encourage you to draw on the methodologies outlined in GBA Plus Resources, which explain how to take an intersectional, iterative approach to assessing the effects of a proposal. That being said, the assessment of consistency with the UN Declaration is not a duplication of your GBA Plus. It is a rights-based analysis grounded in the UN Declaration.

Your consistency analysis can also be informed by the findings of your Assessment of Modern Treaty Implications (AMTI). Modern treaties identify rights and responsibilities in clear terms. Treaty rights, including those in modern treaties, are also protected by section 35 of the Constitution Act, 1982. Modern treaty, land claim and self-government agreements and the rights they contain may also intersect with elements of the UN Declaration, and assessments of treaty obligations, rights, responsibilities and law-making powers are likely to help inform a UN Declaration consistency analysis. The preamble of the UN Declaration Act notes that treaties, agreements and arrangements that affirm the rights of Indigenous peoples can contribute to the implementation of the UN Declaration, and article 37 of the UN Declaration affirms Indigenous peoples’ right to the recognition, observance, and enforcement of their treaties and agreements with the State. Considerations identified in the AMTI may inform the scope or content of UN Declaration rights in the context of particular treaty partners.

Consultation and cooperation with Indigenous peoples

Section 5 of the UN Declaration Act requires that the Government of Canada identify measures and take steps to ensure consistency of federal laws with the UN Declaration in consultation and cooperation with Indigenous peoples. This means that, when working on a legislative or regulatory initiative that has potential intersections with the UN Declaration, and the rights set out in it, there is a requirement to consult and cooperate with Indigenous peoples on the proposed initiative for the purposes of ensuring it is consistent with the UN Declaration.

For other types of initiatives (policy, programmatic, administrative or other) that intersect with the UN Declaration, consultation and cooperation with Indigenous peoples is recommended to inform the development of the initiative in a way that furthers the implementation of the UN Declaration. If an initiative, whether it is legislative, regulatory, policy, administrative or programmatic, relates to one of the commitments set out in the UN Declaration Act Action Plan, consultation and cooperation is also required, consistent with section 6 of the UN Declaration Act.

The UN Declaration Act’s statutory obligation to consult and cooperate is specific to “Indigenous peoples.” Section 2(1) of the UN Declaration Act defines “Indigenous peoples” for the purposes of the Act by reference to section 35 of the Constitution Act, 1982. This definition therefore includes First Nations, Inuit and Métis.

The preamble and section 6 of the UN Declaration Act also speak to diversity within Indigenous peoples, referring specifically to women, gender-diverse persons, two-spirit persons, persons with disabilities, elders and youth. Ensuring the consideration of the perspectives of diverse groups in consultation and cooperation processes, particularly in those associated with measures to address racism, prejudice and discrimination, also aligns with the statutory obligations and with the UN Declaration.

Consultation and cooperation pursuant to the UN Declaration Act should begin as early as possible in the legislative or policy development process and can continue up to the point of “adoption” or “implementation,” bearing in mind relevant limitations and factors that may apply at various points in the process, such as Cabinet confidence or parliamentary privilege, discussed below.

Two important implications flow from this. First, consultation and cooperation is an ongoing process and is not confined to a single stage. Second, depending on when during the legislative or policy development process consultation and cooperation occur, there may be different tools and mechanisms available to help fulfill the statutory obligation.

The scope and depth of consultation and cooperation that may be required by section 5 of the UN Declaration Act will vary for each initiative. As summarized below, the degree of the potential impact on Indigenous peoples’ rights will inform how much you need to consult and cooperate, and what form the consultation and cooperation should take:

• Broad, general initiatives with little direct, indirect or particularized impact on Indigenous peoples:
  • Consider potential links between the initiative and the UN Declaration
  • Identify any concerns that have been raised by Indigenous peoples
  • Consider whether there may be differential impacts on Indigenous peoples or their rights, including any regional or distinctions-specific impacts
  • If there appear to be no or very few impacts, consider with Indigenous peoples whether the Parliamentary or other processes may be a sufficient opportunity for consultation and cooperation
• General initiatives that include particular impacts on Indigenous peoples, or intersect with Indigenous rights or the UN Declaration
  • If there are particular impacts or a direct intersection with rights, consultation and cooperation applies, the intensity of which should be proportionate to the impacts
  • Links should be identified, and consultation and cooperation measures described in relevant materials
• Initiatives specifically addressing Indigenous peoples or Indigenous rights or those with some impacts potentially inconsistent with the UN Declaration
  • The greater the impact, or the greater the risk of inconsistency, the greater the intensity of consultation and cooperation required, up to and including co-development
  • Consideration of linkages and planning for consultation and cooperation must occur as early as possible in the policy development process and inform the process throughout
  • Refer to the Inuit-Crown Co-development Principles as needed (Note that co-development principles are also in development with the Assembly of First Nations and Métis National Council)

Initiatives will fall somewhere along a spectrum. The greater the potential impact, or the greater the risk of inconsistency, the greater the degree of consultation and cooperation required, up to and including co-development. At the highest end of the spectrum, in accordance with Articles 18 and 19 of the UN Declaration, “consultation and cooperation” should also be understood as needing to be undertaken with representative institutions chosen by Indigenous peoples “in order to obtain their free, prior and informed consent prior to adopting and implementing legislative or administrative measures that may affect them.”

Your departmental consultation and engagement unit or Indigenous consultation unit, or your departmental focal point on the UN Declaration Act, as applicable, can help you identify your department’s existing relationships and networks with Indigenous rightsholders and their representative organizations, and identify good practices for ethical and culturally competent engagement.

In some cases, it may be appropriate to use or adapt existing tools and mechanisms to consult and cooperate. In others, it may be necessary to design and build new tools and approaches. They may also have knowledge of other consultation and cooperation processes that are planned or ongoing. Your LSU will also be able to assist in advising on potential legal risks in relation to section 5 of the UN Declaration Act.

By way of very general guidance, meaningful processes of consultation and cooperation will:

• Provide opportunities for First Nations, Inuit and Métis to be involved early in the process, including through their representative organizations in the design of the consultation and cooperation process
• Be consistent with the honour of the Crown by demonstrating integrity, good faith, fairness, responsiveness and respect in dealings with First Nations, Inuit and Métis
• Consider the ability of diverse Indigenous groups to participate in consultation, including whether capacity funding may need to be provided to enable participation of those who might not otherwise be able to do so
• Allow sufficient time to consider the information provided and respond
• Consider options for leveraging and coordinating federal processes to avoid consultation fatigue
• Provide opportunities for First Nations, Inuit and Métis to participate in the cooperative development of proposals and options, and potentially in decision-making processes;
• Make good faith efforts to be as transparent as possible about federal processes, including any constraints regarding timing or sharing of information, and to attempt to understand and address them and respond to them in a meaningful way

Depending on the nature, breadth and scope of impacts of the proposal, you may need to consult and cooperate with Indigenous peoples through their governments and representative organizations, as well as with organizations representing diversity within Indigenous peoples. In addition to national representative organizations, you should consider consultation and cooperation with:

• Indigenous governments, rightsholders and their representative organizations
• Indigenous peoples with historic treaties or modern treaties, agreements and other constructive arrangements (including consultation protocols) with the Government of Canada
• Non-status First Nations individuals and those living off reserv;
• Indigenous Elders, youth, children, persons with disabilities, women, gender diverse, Two Spirit and Indigenous LGBTQI+ persons

There may be circumstances when compelling factors, such as imminent risks to public health, safety, critical infrastructure, or compliance with court decisions, mean that certain initiatives will need to proceed on an expedited basis. In such circumstances, careful consideration must be given to how best to achieve the objectives of the UN Declaration Act while responding to urgent pressures, the pandemic response being a recent example. Strategies in such situations could include:

• Early reach out to First Nations, Inuit and Métis leaders with relevant experience and knowledge, who can help identify the significance of potential impacts on the rights of Indigenous peoples and provide initial guidance on how the government might proceed
• Compiling and reviewing pre-existing input and information from reports, recommendations and previous processes relevant to the issue at hand
• Identifying opportunities at later stages of the process, for example, as part of implementing legislative changes, for the participation of impacted Indigenous peoples
• Considering how the parliamentary process could be an opportunity for Indigenous peoples to participate, and for considering consistency with the UN Declaration

The constitutional duty to consult

The statutory obligation to consult and cooperate in section 5 of the UN Declaration Act is distinct from the constitutional duty to consult and accommodate that flows from section 35 of the Constitution Act, 1982 (hereafter “the constitutional duty to consult”). While the two obligations have some similarities, they also have important differences. First, unlike the constitutional duty to consult, the UN Declaration Act does not limit the consultation and cooperation requirement to potential adverse impacts. Second, the UN Declaration Act obligation to consult and cooperate applies to the legislative process, whereas the duty to consult does not.^{Footnote 1} Third, since the UN Declaration contains a broad range of rights, including both individual and collective rights, the statutory obligation applies in a broader range of circumstances than the constitutional duty to consult, which applies where potential or established section 35 rights are at issue.

Sometimes, both the constitutional duty to consult and the statutory obligation to consult and cooperate will apply concurrently, but may impose different standards of consultation. For specific advice on how to fulfill the statutory obligation, and to understand the interaction with the constitutional duty to consult, where applicable, you are encouraged to reach out to your LSU.

It can be important for Indigenous partners to know, from the outset, whether they are being consulted on an initiative pursuant to the constitutional duty to consult or another basis, such as section 5 of the UN Declaration Act. The constitutional duty to consult imposes reciprocal obligations on First Nation, Inuit and Métis rightsholders, and they may wish to prioritize consultation requests made pursuant to section 35.

Cabinet confidentiality

Cabinet is responsible for deciding the policy of the Government of Canada. This function relies on the constitutional convention of Cabinet confidentiality, which protects, among other things, the expression of ministers’ individual views in arriving at a collective decision. Information tied to this decision-making process may be a confidence of the King’s Privy Council, often known as “Cabinet confidences.”

A variety of laws and policies apply to prevent Crown servants from disclosing Cabinet confidences. Certain information related to the development of an initiative that requires Cabinet approval will therefore be classified and viewable only by authorized federal officials. In this context, officials must carefully manage expectations and take care not to make statements to partners that may adversely impact or interfere with Cabinet’s decision-making role.

Within these constraints, a variety of tools and approaches can contribute to effective consultation and cooperation with First Nations, Inuit and Métis. Consideration may be given to entering into non-disclosure or confidentiality agreements, though such agreements must be used with caution and generally only prior to the stage of developing materials protected by Cabinet confidence. Some of these tools and approaches may require prior Cabinet approval, particularly where there is a desire for flexible and robust engagement with Indigenous partners or in preparation for the parliamentary process. For instance, advanced authorization is required to share a consultation draft of a potential bill. In seeking approvals, one useful way to provide flexibility is to focus on the problems to be solved and the goals to be achieved, such as, what is the policy, and to avoid drafting instructions in the form of draft legislative text or being too specific on the drafting solutions, how to implement the policy. Proposals and drafting instructions in this form can provide officials involved in the drafting process with some flexibility to address issues and views that may be raised by Indigenous partners. Consultation with the LSU and relevant Cabinet and Parliamentary Affairs units is advisable.

Parliamentary privilege

Parliamentary privilege refers to the rights and immunities associated with ensuring the House of Commons, as an institution, and its members, as representatives of the electorate, can fulfill their functions. In the context of legislation, it is important to consider the risk of breaching parliamentary privilege during the period between when a bill has been placed on notice and its introduction in Parliament. Once a bill has been placed on notice, it is the sole right of Members of Parliament to have access to the final text of the bill before anyone else. If details of the bill become public during the period between notice and introduction a question of privilege could be raised. If the Speaker finds a “prima facie” breach of privilege, it would be up to the House to determine the consequences, which could go so far as finding the relevant Minister in contempt of Parliament.

Previous rulings have upheld the right of the Government to hold consultations while developing legislation. However, it is important to ensure that any documents resembling a bill are clearly marked as a draft for consultation, and that any conversations or consultations conclude prior to the bill being placed on notice. Groups being consulted during the development of potential legislation should be made clearly aware of the need to ensure that no details related to the bill are publicly disclosed during that period. Cabinet and Parliamentary Affairs units should be consulted on a case by case basis.

Records

Make sure to document the design of the process, including who was consulted, how, when, at what stage, and on what questions, as well as the results of your consultation and cooperation process. These records can be important to support decision making or in the event of a legal challenge. They can also inform communication with Indigenous peoples, the public and parliamentarians on the process followed. Your department or unit may also wish to consult those records next time it is drafting an MC, for good practices and lessons learned and therefore recommend that completed checklists and related records be provided to the relevant Cabinet Affairs unit. To respect and continue to strengthen relationships with those consulted, the outcomes and products developed as a result of such processes could be shared with those who were consulted, bearing in mind cabinet confidence, parliamentary privilege, solicitor-client privilege and other relevant considerations.

Justification of potential inconsistencies

Your consistency analysis is meant to be an iterative process, leading you to modify the aspects of your initiative that are potentially inconsistent with the UN Declaration until no potential inconsistencies remain, if possible.

The UN Declaration is a broad and general instrument, and disagreements on its interpretation and application are bound to occur. If parties to a consultation and cooperation process disagree on the outcome of a consultation and cooperation process or a consistency analysis, you should ensure that you internally document your conclusions and the supporting rationale. In collaboration with your LSU, you may wish to identify sources consulted or summarize any legal advice obtained that support your conclusion on consistency.

When putting forward a proposal that contains potential inconsistencies with the UN Declaration, you should explain in your MC and in other briefing materials to decision makers why it is not possible to further amend your proposal, relying on the considerations in Article 46(2) of the UN Declaration, which states:

“In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”

In particular, if you cannot bring the proposal into alignment with the UN Declaration, you should point out how respect for human rights motivated that conclusion. For example, if there is a tension between two rights in the UN Declaration, difficult decisions may need to be made about balancing those rights in the legislative or regulatory proposal.

If the proposal is not consistent with the UN Declaration, decision makers may decide to not authorize it or move ahead with it.

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