Reporting on progress
As specified in section 7 of the Act, this annual report details the progress made towards taking measures to ensure consistency of laws (section 5) and joint development of the Action plan (section 6) during the legislated reporting period, from June 2021 to March 2022. This report also includes proposed next steps regarding measures for the consistency of laws, the development of an action plan by June 2023, and subsequent annual reports on progress.
Early progress June 2021 - March 2022
Informed by what we learned during the development of the UN Declaration Act, the Department of Justice Canada has developed a process of consultation, cooperation and engagement with Indigenous peoples which aims to be broad and inclusive, focussed on First Nations, Inuit and Métis rights holders, including modern treaty signatories and self-governing nations and historic treaty partners, as well as with national and regional Indigenous representative organizations. This process will also include engagement with Indigenous women, youth, Elders, persons with disabilities, 2SLGBTQQIA+ persons, as well as other Indigenous organizations and groups.
As outlined on the Department of Justice Canada’s UN Declaration website, which continues to be updated and enriched in its content, there will be a variety of ways to participate in this process, including opportunities for Indigenous peoples to participate in Indigenous-led consultation sessions and share views and input through virtual consultation and engagement sessions by email, mail-in or online submission tool. In addition, the Government of Canada will be holding multiple virtual sessions to learn more about Indigenous priorities for the action plan and measures to ensure the consistency of federal laws with the UN Declaration.
Early work in implementation has concentrated on how to support Indigenous-led capacity to participate in the co-development of the action plan, including the identification of measures to ensure the consistency of federal laws with the UN Declaration. As part of this collaborative work, approximately $23.6 million in funding was made available to support Indigenous participation in the engagement process, including support for Indigenous-led consultations. A call for proposals was undertaken from December 2021 to April 2022, with a goal to support a broad range of Indigenous rights holders, representative organizations and groups. Funding will help support Indigenous partners in conducting research and analysis and consulting their members and citizens to identify priorities. Two hundred and eight (208) proposals were received, and of these, 147 have been approved. Indigenous-led engagement sessions will take place over the summer and early fall of 2022.
To ensure the voices of diverse Indigenous people are considered in the co-development of the action plan, Indigenous applicants seeking funding to conduct their own consultation processes were asked to implement a GBA Plus assessment to outline how their project proposal would consider intersectional needs of the communities involved. Proposals from several successful applicants included strategies to make sure Indigenous youth, children, Elders, persons with disabilities, women, gender diverse, 2SLGBTQQIA+ persons have the opportunity to participate in dialogue sessions. The following diagram aims to reflect the overall approach:
As part of the overall strategy to ensure the Government of Canada is effectively implementing the UN Declaration, the process will be informed by the following principles:
- The viewpoints, priorities and rights of Indigenous peoples are the starting point for implementing the Act and putting the UN Declaration into action.
- Effective implementation requires a broad, inclusive and distinctions-based and intersectional process with Indigenous peoples that aligns with the Declaration.
- Respect existing relationships, and embody the renewal of nation-to-nation and Inuit-Crown, government-to-government relationships between Canada and First Nations, Inuit and the Métis.
- The process will be collaborative, flexible and transparent, focused on Indigenous rights holders and the institutions that represent them, grounded in community-specific and regional realities, and using different engagement methods and fora.
- The objective is meaningful cooperation towards the implementation of the UN Declaration through consultation and cooperation with First Nation, Inuit and Métis representative institutions and broader engagement with Indigenous peoples.
- Emphasis will be on enhancing relationships with Indigenous peoples, organizations, and groups by establishing respectful relationships with partners early on. This includes building and maintaining trust through flexibility and ensuring transparency throughout the process.
- Recognize that Indigenous governing bodies and national and regional representative organizations will bring the voices of their diverse citizens and members to bear on their own input. At the same time, additional efforts are also required to ensure that Canada obtains the input of diverse Indigenous people, including Indigenous women, youth, Elders, persons with disabilities, 2SLGBTQQIA+ persons, notably in relation to concrete measures to address injustices, combat prejudice and eliminate all forms of violence, including systemic racism and discrimination.
Consultation and cooperation with Indigenous peoples
The Act requires the Government of Canada to work in consultation and cooperation with Indigenous peoples to take all necessary measures to ensure federal laws are consistent with the UN Declaration, to develop and implement an action plan to achieve its objectives and develop annual reports on progress.
While we are still learning and working together on developing appropriate mechanisms for consultation and cooperation, we understand that cooperation is more than consultation and involves a collaborative and inclusive process based on the recognition and implementation of Indigenous rights. The Act’s statutory obligation to consult and cooperate is specific to “Indigenous peoples.” Section 2(1) of the Act defines “Indigenous peoples” by reference to section 35 of the Constitution Act, 1982. This definition, therefore, includes First Nations, Inuit and Métis collectives. The UN Declaration requires that consultation and cooperation occur with the Indigenous peoples “concerned” through their own “representative institutions”. This includes ensuring that Indigenous governments are involved in the implementation of the Act.
Ensuring participation of these diverse perspectives in consultation and cooperation processes has also been highlighted by the United Nations Expert Mechanism on the Rights of Indigenous Peoples as an important component of effective consultation processes, particularly in relation to measures to address racism, prejudice and discrimination.
Given the diverse range of circumstances in which the need for consultation and cooperation will apply, the Indian Residential School History and Dialogue Centre has noted that “[a] kaleidoscopic approach to the development of measures, with different mechanisms and processes that can be adapted and utilized in different circumstances, is what is needed.” In practice, this means the greater the potential impact on the rights of Indigenous peoples, the greater the intensity of consultation and cooperation required, up to and including co-development.
Embracing co-development in implementing the Act
Co-development is a joint, consensus-based process premised on a solemn and equal partnership, and a commitment to engage in meaningful collaboration towards a common shared objective. It should embody the commitment to nation-to-nation, Inuit-Crown and government-to-government relationships, while also taking into account Canada’s constitutional system of responsible government. It should respect and support the right to self-determination.
The statutory obligation to develop and implement an action plan ultimately rests on the Government of Canada. While recognizing that federal decision-making and approval processes will apply, it is equally important to recognize that Indigenous peoples have their own respective decision-making and governance processes.
Co-development emphasizes that the voices and perspectives of those whose rights are impacted is key to addressing the historical and ongoing imbalance of power in decision-making.
Addressing these disparities is the driving force behind the inclusive intersectional approach to consultation and cooperation to be undertaken. It reflects a commitment to engage in meaningful collaboration towards a common objective between partners. To support co-development of the action plan with Indigenous partners, the emerging guiding principles include, but are not limited to:
- Rights-based approach: The process must respect the rights of Indigenous peoples, including the Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act 1982 and those affirmed in the UN Declaration.
- Consensus-based approach: Seeking to achieve consensus means working in good faith to identify solutions that everyone actively supports. A consensus-based approach means that all cross-cutting potential elements of the action plan are jointly determined and developed by Indigenous partners and the Government of Canada, including through the following:
- Supporting proposals with explanation, including disclosure of other approaches identified or considered, where possible
- Providing written explanations
- Fair consideration of counter proposals or specific revisions
- Provision of reasonable timeframes
- Willingness to adapt positions/mandate/timelines based on needs of partners
- Being cognizant of the capacity of Indigenous partners, appropriate resources being allocated to the process of co-development
- Cultural competency and familiarity with Indigenous laws/legal orders on the part of federal representatives
- Transparency and openness: The process must be guided by transparency and openness between partners and the Government of Canada.
- Political engagement and direction: Partners and the Government of Canada will seek engagement from their respective political leadership in dialogue about their respective goals and objectives and jointly determine as early as their respective processes allow what may or may not be achievable within the scope of a given initiative.
- Acting in good faith and upholding the honour of the Crown: Partners and Canada must act in good faith and Canada must uphold the honour of the Crown. This means in particular that the scope and substantive content of the action plan should not be pre-determined by the Government of Canada, and that partners and the Government of Canada will engage in meaningful discussions, including sharing adequate and relevant information.
Action plan
The goal of the action plan is to achieve the objectives of the UN Declaration in consultation and cooperation with First Nations, Inuit and the Métis. These actions need to be beyond aspirational, they must be actionable and measureable.
Phase one of engagement with Indigenous peoples got underway in Fall 2021. Priorities identified through Indigenous-led consultations will provide an important foundation for a draft action plan, which is targeted for release in Fall 2022.
Phase two of engagement will focus on validating the measures in the draft action plan.
The Act requires the action plan to include the following measures:
- to address injustices, combat prejudice and eliminate all forms of violence, racism and discrimination against Indigenous peoples, including youth, children, Elders, persons with disabilities, women, men and gender-diverse and Two-Spirit persons
- to promote mutual respect and understanding, as well as good relations, including through human rights education
- related to the monitoring, oversight, follow up, recourse or remedy or other accountability with respect to the implementation of the UN Declaration
- for monitoring the implementation of the plan itself and for reviewing and amending the plan
The action plan can also include other measures to achieve the objectives of the UN Declaration related to, among other things:
- Self-determination and self-government
- Land, territories and resources
- Education
- Economic development
- Social, cultural and linguistic rights
- Participation in decision-making, including free, prior and informed consent
- Rejection of all forms of colonialism and advancement of relations with Indigenous peoples that are based on good faith and on the principles of justice, democracy, equality, non-discrimination, good governance and respect for human rights
- Sustainable development and responding to growing concerns relating to climate change and its impacts on Indigenous peoples
This collaborative work will complement other initiatives underway across Canada with Indigenous partners to help close socio-economic gaps, to transfer responsibility for the design, delivery and management of services to Indigenous partners, advance reconciliation and renew relationships based on the affirmation of rights, respect, co-operation and partnership.
Consistency of laws
“We need a better way forward – where the human rights of Indigenous peoples will finally be fully respected and upheld – and discriminatory laws and policies will never again be imposed on our families and communities.”
– Stephanie Scott, Executive Director of the National Centre for Truth and Reconciliation
The Act requires the Government of Canada to take all necessary measures to ensure that federal laws are consistent with the standards set out in the UN Declaration, while also respecting Aboriginal and treaty rights recognized and affirmed by the Constitution. The Act also affirms that the UN Declaration can be used to interpret and apply all Canadian laws, including the Constitution.
This means that new laws and regulations or updates to, and the review of, existing laws and regulations that impact the rights of Indigenous peoples should contribute to achieving the objectives of the UN Declaration, both in terms of substance, and the process through which legislation is developed or amended. Identifying and developing the measures to help ensure federal laws are consistent with the UN Declaration is part of the consultation and cooperation process that is underway. While that process is underway, the Government is moving forward collaboratively on initiatives that contribute to the implementation of the Act.
The Department of Justice Canada has developed interim guidance to help officials consider the intersection between proposed legislative and regulatory initiatives and the UN Declaration in order to inform consultation and cooperation processes, and to help ensure consistency with the UN Declaration. This guidance is helping to inform many initiatives underway, including the co-development of distinctions-based Indigenous health legislation, First Nations Police Services legislation, and the Indigenous Justice Strategy, among others.
Discussions with Indigenous partners have started, as part of the consultation and cooperation process on the implementation of the Act, on potential protocols, measures and mechanisms that could be implemented across the federal government to help ensure the consistency of federal laws and regulations with the UN Declaration.
Future reports will reflect the advancement of work on measures to ensure consistency of laws. The next progress report will seek to outline in more detail legislative initiatives introduced in Parliament during the reporting period, and associated efforts to ensure consistency with the UN Declaration in consultation and cooperation with Indigenous peoples.
Non-Derogation Clause
The UN Declaration Act and related interim guidance is also informing the Department of Justice Canada’s approach to exploring the potential for including a non-derogation clause (NDC) in the federal Interpretation Act in order to reaffirm that all federal legislation should be interpreted as upholding Aboriginal and treaty rights, recognized and affirmed by section 35 of the Constitution Act, 1982. Building on earlier work, in December 2020, the Minister of Justice announced the launch of a consultation and engagement process with Indigenous peoples regarding a possible amendment to the federal Interpretation Act to add a NDC and possible repeal of most NDCs in existing legislation. Initial meetings with Indigenous partners held over the course of February and March 2021 revealed considerable support for the proposal. However, opinions varied on the exact wording of the NDC and on whether to repeal all, or most, of the existing NDCs in federal legislation.
After the Act came into force, the NDC engagement process resumed from February to May 2022, building on the work undertaken earlier in 2021. In addition to NDC-specific bilateral meetings, the NDC initiative was also raised with Indigenous partners as part of the UN Declaration Act engagement process. The Act itself contains a NDC that could possibly be amended by this legislative initiative. In order for the NDC engagement process to be as broad and inclusive as possible, information was posted on the Department of Justice Canada’s website About the Act. This includes background information on the initiative, a list of NDCs in federal legislation and options for a NDC and repeal options. The website also includes an invitation to submit feedback.
Raising awareness
Ensuring a whole-of-government approach requires that government officials have a consistent understanding of and are able to apply the Act and the UN Declaration in their work. This requires training, information sharing, interdepartmental coordination and the development and provision of policy development tools and legal advice. The Department of Justice Canada continues to provide training to legal counsel who work throughout the federal government and also offers presentations to other government departments on the UN Declaration Act and the UN Declaration. This training aims to raise awareness of Indigenous rights, the application of the UN Declaration and issues related to First Nations, Inuit and the Métis in Canada. The training responds to the Truth and Reconciliation Calls to Action #57.
Other federal government departments are also providing training to their employees. For example, Employment and Social Development Canada’s, Indigenous Employees’ Circle held a training event in January 2022, inviting Professor Brenda Gunn to speak about the UN Declaration. Government digital platforms and legal and interdepartmental networks are being used to share tools, resources and training.
The Department of Justice Canada has developed and is posting informative materials on the UN Declaration webpage and on Government social media channels to help raise awareness of the UN Declaration and the importance of the Act.
Implementation and beyond
Consultation and cooperation with Indigenous peoples will continue following release of the action plan in June 2023, to continue to inform measures to align federal laws with the UN Declaration, and to ensure that Government of Canada’s efforts to implement measures in the action plan continue to benefit from the involvement of Indigenous peoples in monitoring and reporting on progress.
Monitoring progress on achieving consistency of laws and the implementation of specific actions or measures in the forthcoming action plan will be critical in the coming years. Working with Indigenous peoples to determine what is measured and how, what the outcomes or results should be, and whether there are additional indicators that can illustrate whether advancements in rights are being made, will be central to the development of subsequent progress reports in the years ahead.
Featured content
- Statement on the 15th anniversary of the United Nations Declaration on the Rights of Indigenous Peoples - September 13, 2022
- Watch the video: The United Nations Declaration on the Rights of Indigenous Peoples explained
- Annual Report 2022
- Statement – June 21, 2022
- Engagement and resource kit
- Fact Sheet - The United Nations Declaration on the Rights of Indigenous Peoples Act
- Declaration themes
- Backgrounders
- Watch the video: Voices on the UN Declaration on the Rights of Indigenous Peoples
- The Declaration in action
- Bill C-15: What we learned report
- Date modified: