Jake Oberg
In 2021, Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDRIP Act”).[1] The act requires that Canada make sure its laws “are consistent with” the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).[2] This act stands out given the fact that Canada was one of the four countries that initially voted against UNDRIP.[3]
What is UNDRIP?
UNDRIP is a United Nations General Assembly resolution passed in 2007 that articulates various rights that indigenous peoples have and duties that states have towards them.[4] As UNDRIP is a General Assembly resolution, it is non-binding on states.[5] An example of a right listed in UNDRIP is the right for indigenous peoples to practice their own cultures.[6] An example of a duty that a state has towards indigenous peoples is a requirement that states obtain the “free, prior, and informed consent” of indigenous peoples for laws that affect them.[7]
Canada’s position has changed over the years with the Canadian Government initially opposing UNDRIP, then supporting UNDRIP as a non-binding document in 2010, and later endorsing UNDRIP at the United Nations Permanent Forum of Indigenous People in 2016 while stating an intent to implement it.[8]
What does the UNDRIP Act require?
The UNDRIP Act requires that the Canadian Government “ensure that the laws of Canada are consistent with the Declaration” and to create an action plan to meet the “objectives” of UNDRIP in consultation with indigenous peoples.[9] The action plan was released in 2023, and implementation of its priorities are still ongoing.[10] An example of a priority is Shared Priority Number 93, stating that the Canadian Government will increase access to federal services in Indigenous languages.[11]
Canadian Courts’ Interpretations of UNDRIP
Canadian courts have differing opinions regarding what the legal effect of the UNDRIP Act is. Some judges such as Judge Feehan of Alberta’s Court of Appeal consider UNDRIP to be nonbinding and a “useful tool.”[12] On the other hand, Québec’s Superior Court[13] in R. c. Montour found the UNDRIP Act has a substantive impact on Canadian law.[14] R. c. Montour is a criminal case involving two Mohawks of Kahnawà:ke being charged with failure to pay excise tax when importing tobacco.[15] The court reasoned that due to Canada’s history with the act (initially rejecting, adopting as a non-binding agreement, and full endorsement) and passing of a domestic law indicates that there was an intent to give UNDRIP the same effect as a binding treaty.[16] The court then replaced the Van der Peet test (a test to determine whether a Aboriginal right exists for a given custom or practice based on whether it was “integral to a distinctive culture”)[17] because “the presumption of conformity with the UNDRIP” required a divergence from stare decisis.[18] The new test requires that (1) there is a right, (2) said right is recognized by indigenous legal systems, and (3) that the matter at issue is an exercise of said right.[19] Applying this test, the court found that there was a recognized right that was being violated and that criminal proceedings against the defendants should be stayed.[20] R. c. Montour is currently being appealed, which will give clarity regarding whether this interpretation of the UNDRIP Act is correct.[21]
Canada’s Supreme Court has not definitively confirmed the UNDRIP Act’s nature, but they have comment on the act in two cases. The Supreme Court described UNDRIP as being “incorporated into the country’s positive law” due to the UNDRIP Act in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families.[22] The exact meaning of this phrase is unclear and does not clarify the nature of the UNDRIP Act.[23] The Supreme Court also addresses the UNDRIP Act in Dickson v. Vuntut Gwitchin First Nation.[24] Here, the Court describes the UNDRIP Act as having “brought” UNDRIP into Canadian law and uses the declaration to support a point it is making about the Canadian Charter of Rights and Freedoms.[25] Interestingly, the dissent of Justices Martin and O’Bonsawin goes further, explicitly stating that the UNDRIP is binding.[26] Given the varying interpretations of the UNDRIP Act, both in the Supreme Court and Canadian courts more generally, the Supreme Court of Canada should clarify the exact consequences of the Act in regards to UNDRIP and whether it is binding or just an interpretive tool.
[1] The United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 [hereinafter UNDRIP Act].
[2] Id. s. 5.
[3] United Nations Declaration on the Rights of Indigenous People, United Nations Dep’t of Econ. & Soc. Affairs, https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples, (last visited Mar. 3, 2025).
[4] G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples [hereinafter UNDRIP] (Sept. 13 2007).
[5] FAQs on the Declaration on the Rights of Indigenous People, United Nations Dep’t of Econ. & Soc. Affairs, https://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf, (last visited Mar. 3, 2025).
[6] UNDRIP, supra note 3, arts. 13.
[7] Id. art. 19.
[8] R. c. Montour, 2023 QCCS 4154, paras. 1182–85; John Borrows et al., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples ix–x (2019).
[9] UNDRIP Act, supra note 1, ss. 5–6.
[10] See United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan 2023–2028, Gov’t of Can. (2023), https://www.justice.gc.ca/eng/declaration/ap-pa/ah/pdf/unda-action-plan-digital-eng.pdf [hereinafter Canada Action Plan].
[11] Id. at 45.
[12] Sarah Niman, Advancing Reconciliation in the Law No Easy Road, CBA Nat’l, https://www.nationalmagazine.ca/en-ca/articles/law/opinion/2024/advancing-reconciliation-in-the-law-no-easy-road (Dec. 20 2024); AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342, paras. 122–23 (Feehan, J., concurring).
[13] It should be noted that the Superior Court of Québec is a “court of original jurisdiction.” Jurisdiction, Superior Court of Québec, https://coursuperieureduquebec.ca/en/about/jurisdiction (last visited Mar. 3, 2025).
[14] R. c. Montour, supra note 8.
[15] Id. paras. 1, 32–36.
[16] Id. para. 1201.
[17] See R. v. Van der Pete, [1996] 2 S.C.R. 507, paras. 46–75.
[18] R. c. Montour, supra note 8, paras. 1212–37.
[19] Id. paras. 1291–339.
[20] Id. para. 1695; for a specific application of the test see id. paras. 1340–411, 1460–96.
[21] Sarah Niman, Advancing Reconciliation in the Law No Easy Road, CBA Nat’l, (Dec. 20 2024), https://www.nationalmagazine.ca/en-ca/articles/law/opinion/2024/advancing-reconciliation-in-the-law-no-easy-road.
[22] Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, para. 4.
[23] See Nigel Bankes & Robert Hamilton, What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish, ABLawg (Feb. 28, 2024), https://ablawg.ca/2024/02/28/what-did-the-court-mean-when-it-said-that-undrip-has-been-incorporated-into-the-countrys-positive-law-appellate-guidance-or-rhetorical-flourish/.
[24] Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10.
[25] Id. para. 117 (“Protecting collective rights and freedoms in this way is also consonant with [UNDRIP]”).
[26] Id. para. 317 (Martin & O’Bansawin, JJ., dissenting). For a more in-depth discussion of both opinions, see Nigel Bankes & Jennifer Koshan, The Dickson Decision, UNDRIP, and the Federal UNDRIP Act, ABLawg (Apr. 18, 2024), https://ablawg.ca/2024/04/18/the-dickson-decision-undrip-and-the-federal-undrip-act/.