Gib van Ert*
This article is an elaboration of points I made on a Twitter thread on 22 November 2018. You can download a PDF of this article.
As I write, Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act,is at second reading in the Senate. What does this bill do? Its full title is An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. Surely, then, the bill ensures harmony between the laws of Canada and the Declaration. Commentators have often assumed so.[1] But a close reading of the bill, informed by longstanding Canadian practice in the implementation of international and internal agreements, raises profound doubts. Despite its talk of harmonizing the laws of Canada and the Declaration, the bill studiously avoids the usual legislative techniques for implementing international or other instruments in domestic law. I argue below that while Bill C-262 gives the impression of being a statute meant to implement the Declaration, it will in fact not give legal effect to the Declaration in federal law, at least not at the date of its enactment.
Throughout this paper I compare Bill C-262’s terms with those of a variety of statutes that serve to implement international or internal agreements in domestic law. There is no relevant difference between how Parliament and the provincial legislatures implement international conventions and how they implement other, non-international agreements such as federal-provincial accords or agreements between the federal government and indigenous peoples. Bill C-262’s subject-matter, however, is neither a convention nor an internal accord; it is a resolution of an international body, namely the UN General Assembly. Formally non-binding international instruments such as this are rarely given statutory force in Canadian law, but there is at least one precedent, namely the UNCITRAL Model Law. As the Supreme Court of Canada explained in Yugraneft Corp. v. Rexx Management Corp. 2010 SCC 19 at para. 11,
The Model Law was developed in 1985 by the United Nations Commission on International Trade Law (“UNCITRAL”). Unlike the New York Convention, which is a treaty, the Model Law is not an international agreement intended for ratification. Rather, it is a codification of international “best practices” intended to serve as an example for domestic legislation….The Model Law has been adopted, subject to some modifications, by every jurisdiction in Canada.
The form of implementation adopted federally,[2] provincially[3] and territorially[4] for the Model Law is the same as what our legislatures use for international conventions and internal agreements. This example precludes the possibility that Bill C-262’s avoidance of standard implementing methods is explained by the Declaration’s international legal status, to which I now turn.
The Declaration in international law
Before examining what effect Bill C-262 would give the Declaration in domestic law, it is helpful to consider its international legal status. This is not straightforward. We can say with confidence that the Declaration is not formally binding on states. It is, in form, a resolution of the United Nations General Assembly,[5] and that body’s resolutions are not laws.[6] The mere fact that the General Assembly has proclaimed the Declaration does not create new legal obligations for Canada or other states.
But that is far from being the end of the matter. While the Declaration is formally non-binding, what matters is its substance. It is clear that some part of its substance, at least, is presently legally binding on Canada and other states, either as a matter of human right treaties or by operation of customary international law.
There is clear overlap between some of the Declaration’s provisions and long-established rules of the UN human rights treaty system. It would be a gross oversimplification, for instance, to deny that article 2 of the Declaration represents international law:
Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.
This article of the Declaration is consistent with, and surely included within, equality and non-discrimination provisions in such binding human rights treaty provisions as article 26 of the International Covenant on Civil and Political Rights 1966[7] and article 2(1) of the Convention on the Elimination of Racial Discrimination 1969.[8] So even if article 2 of the Declaration is not per se binding on states (because the Declaration itself is a formally non-binding instrument), there is no doubt that the substance of article 2 represents a norm to which Canada and other UN treaty parties are legally committed. Other articles of the Declaration also affirm rights enjoyed under UN treaties, such as the right to a nationality (article 6), life, liberty and personal security (article 7(1)), and protection from genocide (article 7(2)).
Even in cases where the Declaration’s provisions do not overlap with existing treaty law, we cannot necessarily dismiss their international legal force. General Assembly resolutions can sometimes be legally significant despite their non-binding form, by codifying or influencing customary international law.[9] To know whether the Declaration, or parts of it, represents customary international law requires a thorough study of contemporary state practice. Some such studies have already been attempted,[10] and more can be expected. One 2012 report concludes that while the Declaration “as a whole cannot yet be considered as a statement of existing customary international law”, nevertheless it “includes key provisions which correspond to existing State obligations under customary international law”.[11] If this is right, then at least parts of the Declaration are legally binding on Canada and other states as a matter of customary international law despite its formally non-binding status. The challenge will be to persuade our courts that the Declaration, or parts of it, have passed into custom and thus becoming binding on Canada.
In short, the Declaration’s current status in international law is complex. Canadian courts that are asked to consider provisions of the Declaration should not rush to the conclusion that they have no international legal effect merely because the instrument in which they are found is formally non-binding. Some of the Declaration’s provisions are uncontroversial elements of international human rights law, and others may now represent customary international law. Yet other provisions may be new ideas, or new developments upon earlier notions, that do not (as yet) represent binding international legal norms. Domestic litigants who seek to rely on the Declaration’s provisions as statements of international law will first have to persuade the court that they enjoy that status. In some cases, at least, they will be able to do so—even if the Declaration remains unimplemented in Canadian law.
Alternatively, litigants may invite courts to look to the Declaration, whether implemented or not, as a relevant and persuasive consideration in domestic adjudication whatever its international legal status. Our courts do consider non-binding international instruments in some cases.[12] Unlike judicial consideration of treaties and custom, which are governed by clear reception rules, resort to non-binding instruments tends to be unstructured. There is no interpretive presumption that domestic law conforms to non-binding instruments such as the Declaration,[13] and their interpretive weight seems generally low, though with some exceptions.[14] The relevant and persuasive approach to international instruments gives unpredictable results, and is clearly inappropriate in respect of binding legal norms such as treaties Canada has concluded and customary rules applicable to all states. But this approach can be apt for non-binding instruments such as the Declaration, and the particular constitutional environment into which the Declaration fits may justify giving it greater weight in domestic law than is usually given to non-binding international instruments.[15]
What effect does Bill C-262 give to the Declaration in Canadian law?
I have tried to show above that the Declaration may have significant legal effects in Canadian law whether implemented by legislation or not. It is indisputable, however, that the Declaration will have greater legal force in Canada if implemented. This brings me back to Bill C-262. There is no doubt that Parliament has the power to implement the Declaration in federal (though not provincial)[16] law if it is minded to do so. The question is whether Parliament is exercising that power by enacting Bill C-262. I will review each of the bill’s six sections to consider what effect they have on the Declaration’s status in Canadian law. My conclusion is that the bill does not do what many people have suggested or assumed. It does not implement the Declaration in Canadian law.
The bill is short, if one excludes its schedule (which appends the Declaration). It begins with a preamble which includes the following recitals (my emphasis):
Whereas the Parliament of Canada recognizes that the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples should be enshrined in the laws of Canada;
…
Whereas, in its document entitled Calls to Action, the Truth and Reconciliation Commission of Canada is calling upon the federal government and other governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation;
…
Whereas Canada is committed to taking appropriate measures — including legislative, policy and administrative measures — at the national and international level, in consultation and cooperation with indigenous peoples, to achieve the ends of the United Nations Declaration on the Rights of Indigenous Peoples and to follow up on its effectiveness…
The underscored passages all suggest that this bill is intended to implement the Declaration by legislation. Notably, however, each passage is a bit hedged. To say that the Declaration’s “principles…should be enshrined” in federal law (les principes établis dans la Déclaration…devraient être inscrits) is somewhat removed from saying that the Declaration itself should be. Furthermore, “enshrined” is not a legislative term of art, so its legal effect is not immediately apparent. The next-quoted passage notes that the Truth and Reconciliation Commission of Canada has called on Canadian governments to “fully adopt and implement” the Declaration. In contrast to “enshrined”, the word “implement” is a term of art. Our statute books are full of enactments named the [XYZ] Implementation Act which expressly give the force of law to international instruments and other agreements, or amend domestic law in other ways to conform to the instrument being implemented.[17] But this recital does not speak of Parliament’s intent to implement the Declaration; rather, it notes the TRC’s demand that governments (not legislatures) fully adopt and implement the Declaration. The last-quoted recital speaks of Canada’s commitment to take “appropriate measures—including legislative…to achieve the ends of” the Declaration. Talk of legislative measures to achieve the Declaration’s ends (les mesures…législatives…afin d’atteindre les objectifs énoncés dans la Déclaration) sounds like a layperson’s rendering of what legislative drafters call implementation. But here again that term is avoided. Why not simply say that Canada is committed to implementing the Declaration in federal law? Also of note in this recital is its reference to the need for “consultation and cooperation with indigenous peoples” when taking appropriate measures to achieve the Declaration’s ends. The implication may be that such consultation and cooperation has not yet occurred, and therefore the present bill will not itself implement the Declaration. Sections 5 and 6 of the bill, discussed below, are consistent with this interpretation.
The reader may reasonably object that preambles are not always drafted to the same standards as a law’s effective provisions, and that to parse these recitals in too lawyerly a way is uncharitable or worse. There is some force in that. But the hedges and ambiguities I have pointed out in the preamble are found in the rest of the text, too. The entire bill is studious in its avoidance of legislative drafting mechanisms that would give the Declaration the force of law.
Section 1 of the bill gives it the following short title: the United Nations Declaration on the Rights of Indigenous Peoples Act. That may seem innocuous, but it is not. The title could have been the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act. That title would send an unmistakable signal to the courts that Parliament intended by this enactment to implement the Declaration in our law. Parliament routinely names its laws in just this way.[18] Far from innocuous, the absence of the word “Implementation” in s. 1 is telling. Not decisive, but telling.
Next come two interpretive provisions. Section 2(1) provides “[f]or greater certainty” that nothing in the bill is to be construed as diminishing or extinguishing Aboriginal rights recognized and affirmed in s. 35 of the Constitution Act, 1982. More importantly for our purposes, s. 2(2) provides, “Nothing in this Act is to be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law”. This provision seems to preserve the possibility that the Declaration may become effective in Canadian law by means other than the bill itself. This might happen, for instance, if the Declaration (or parts of it) come to be regarded as customary international law, in which case it would (barring legislative pre-emption) be incorporated by the common law.[19] It is also possible (and perhaps more likely) that Canadian courts might give effect to the Declaration by other means. I have argued elsewhere that the honour of the Crown doctrine could give legal effect to Canada’s adherence to the Declaration by means of a sort of constitutional estoppel.[20] If Bill C-262 is not implementing legislation, s. 2(2) will serve the potentially important role of not prohibiting courts from giving legal effect to the Declaration outside the bill’s provisions. The inclusion of s. 2(2) in the bill is therefore further reason to believe it is not a law to implement the Declaration.
Sections 3 and 4 are the heart of the bill’s provisions about the legal status of the Declaration in domestic law. Section 3 provides that the Declaration “is hereby affirmed as a universal international human rights instrument with application in Canadian law”. That seems clear, but it is not. The word “affirmed” is another instance of a non-standard term. When Parliament wishes to express its approval of an international agreement, or some other agreement, it does so with the word “approved” (approuvé).[21] It is uncontroversial that such approval provisions are insufficient to implement instruments in domestic law,[22] so even if the bill did use the term “approved” it would not give the Declaration force of law. It seems unlikely that Parliament’s affirmation of the Declaration could give it the force of law when its approval could not. Also of note is that the French text of s. 3 omits the Declaration’s affirmation.[23] This is further reason to conclude that “affirmed” is doing little work here. Section 3 also describes the Declaration as an instrument “with application in Canadian law”. Again, this phrase is not a term of art. Legislative drafters do not use it, and courts cannot be expected to know what it means. The phrase is non-standard in two ways: first in its use of the term “application”, second in its reference to “Canadian law” rather than the laws of Canada (the only laws over which Parliament has jurisdiction). Whatever this description of the Declaration may mean, it probably does not implement the Declaration in federal law. In saying this I am not denying the possibility that s. 3 is true. We may soon find out that the Declaration does have indeed application in Canadian law, as an interpretive device or in the other ways I have already mentioned. My point is simply that if the Declaration has application in Canadian law, that is not because s. 3 has enacted it. Section 3 is descriptive when it could have been prescriptive.
Section 4 reads, “The Government of Canada, in consultation and cooperation with indigenous peoples in Canada, must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples”. This is a fascinating (and beguiling) provision. What does it mean for Parliament to require the federal government to ensure that federal laws are consistent with the Declaration? While majority governments can usually control Parliament, or at least the House of Commons, the separation of powers remains a fundamental feature of our constitutional arrangements. Practically speaking, even a government that wanted to comply with s. 4 would find it impossible to do so if either the Senate or the Commons resisted in any particular instance. Leaving aside this practical difficulty, what exactly is s. 4 demanding of the federal government? If enacted, would s. 4 require the government to audit existing federal laws for consistency with the Declaration? Would it require the government to introduce bills to remedy such inconsistencies? Here again we run up against a separation of powers problem: s. 4 raises the spectre of legislative constraint upon what initiatives the executive may introduce in Parliament.[24]
This is not the place to explore these questions. I return to my theme: whatever s. 4 means, it does not mean that the Declaration is implemented in federal law. This is another place in the bill where what is not said speaks volumes. Implementing laws frequently say, in plain language, that their purpose is to implement some instrument (whether international or internal) in law,[25] or to give such an instrument the force of law.[26] Neither s. 4 nor any other provision of the bill does this. Furthermore, implementing laws frequently include a provision directing the courts on what to do in the event of an inconsistency between the instrument being enacted and existing law. For instance, s. 5(1) of the Canada-Russia Income Tax Agreement Act, 1996[27] provides, “Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the [Canada-Russia Double Taxation] Agreement and the provisions of any other law, the provisions of this Part and the Agreement prevail to the extent of the inconsistency.” Similarly, the Anishinabek Nation Education Agreement Act[28] expressly gives force of law to the education agreement in s. 5(1), and provides at s. 3(1), “In the event of an inconsistency or conflict between the Agreement and the provisions of any Act of Parliament, or of any regulation made under an Act of Parliament, the Agreement prevails to the extent of the conflict or inconsistency.” Many more examples could be cited. Such provisions are not necessary to implement international or other agreements, but they are fairly common. My point is that a simple, well-established and effective way of ensuring consistency between federal laws and the Declaration would be to enact a provision giving the Declaration prevalence over other federal laws in the event of inconsistency. Bill C-262 pointedly neglects to do this.[29] Instead, it enacts the unfamiliar and possibly even unconstitutional provision that is s. 4.
Section 5 of Bill C-262 requires the federal government, in consultation and cooperation with indigenous peoples, to “develop and implement a national action plan to achieve the objectives of” the Declaration. Section 6 requires the Minister of Indian Affairs and Northern Development to submit annual reports to each House of Parliament for a period of twenty years “on the implementation of the measures referred to in section 4 and the plan referred to in section 5”. Together these provisions appear to contemplate a slow march towards consistency between the Declaration and Canadian law.[30] Rather than the bill itself giving statutory force to the Declaration at the date of enactment, these provisions create a statutory duty on the federal government to develop and implement a “plan to achieve the objectives of” the Declaration over twenty years, and to report to Parliament annually on its progress. This delayed enforcement scheme is not the usual means by which Parliament and the provincial legislatures implement international and other agreements, but it may be broadly described as a sort of implementation. A statutory precedent for the bill’s delayed enforcement scheme is the Kelowna Accord Implementation Act, which denied the Accord immediate legal effect but created a statutory duty in the federal government to “immediately take all measures necessary to implement” its terms (s. 2), and established a four-year annual reporting scheme (s. 3).[31] Another (partial) statutory precedent is the James Bay and Northern Quebec Native Claims Settlement Act,[32] s. 10 of which imposes a twenty-year reporting scheme similar to s. 6 of the bill. But there is an important difference between that Act and Bill C-262: unlike the bill, the James Bay enactment includes the usual provision approving the underlying agreement and declaring it to have the force of law (s. 3(1)).
Bill C-262 closes by reproducing the Declaration in full as its sole schedule. Re Vancouver Island Railwayis authority that simple “ratification” or “confirmation” of a scheduled agreement, without more, is equivocal in terms of the required legislative intention to give the agreement statutory force.[33] The same must be true here.
The bill's unforeseeable consequences
Bill C-262 claims at various points to ensure harmony between the laws of Canada and the Declaration, to enshrine the Declaration’s principles in the laws of Canada, and to affirm the Declaration as an instrument with application in Canadian law. But it does not do any of those things in the conventional ways established by legislative practice and recognized as effective by Canadian courts. In fact, the bill seems to go out of its way to avoid the simple, familiar legislative drafting techniques that, if employed, would avoid all doubt about Parliament’s intention to give legal effect to the Declaration. In second reading of the bill in the House of Commons, the Parliamentary Secretary to the Minister of Indigenous Services, Don Rusnak, observed that the bill “will not, on its own, operationalize the United Nations declaration in Canadian law”.[34] The term “operationalize” is yet another non-standard term (why not say “implement”?), but the gist of his comment must be right.
What effect, then, would Bill C-262 have on the use of the Declaration by litigants and adjudicators? What new use, if any, will parties and judges be able to make of the Declaration in consequence of the bill’s enactment? It is difficult to say. Some courts may find that the Declaration is implemented by the bill despite the reasons I have given for rejecting that conclusion, though I think that unlikely. Other courts may hesitate to treat the Declaration as law, but feel encouraged by the bill’s passage to consider the Declaration more willingly in their decision-making than they might otherwise do. This response to the bill would be a far cry from true implementation, but might nudge our law in that direction. Another possibility is judicial exasperation with the bill, and perhaps also with the Declaration it ineffectively engages. Ironically, this response might take our law in a direction opposite to where its proponents seem to be aiming. The bill’s drafting and approach are so beyond our usual legislative lexicon that its effects on Canadian law are matters for speculation when they ought to be straightforward.
The United Nations Declaration on the Rights of Indigenous Peoples is a major development in international thinking about indigenous rights. It cannot be blithely dismissed by courts and litigants despite its formally non-binding character and its current lack of legislative implementation. Writing in 2016, I expressed the view that “Recognition of the Declaration through judicial action could reshape Canadian Aboriginal law”.[35] But what recognition of the Declaration will judges give it if Bill C-262 is enacted? If they conclude, as I think they must, that the bill does not in fact give legislative effect to the Declaration in our law, will they hesitate to give judicial effect to it, too? The risk of that outcome cannot be ignored. Proponents of the Declaration need to consider whether Bill C-262 is really taking them where they want to go.
27 November 2018
*Partner, Miller Thomson LLP (Ottawa and Vancouver). Email: gvanert@millerthomson.com. I am indebted to Prof. Dwight Newman and Benjamim Oliphant for their comments on drafts of this article.
[1] E.g., a 2016 editorial in the Globe and Mail observed, “If Mr. Saganash's Bill C-262 is passed, a UN declaration that appears to considerably expand the scope of aboriginal rights would have the force of law in Canada”: “The UN declaration on indigenous rights: scary, exciting or just a muddle?” The Globe and Mail, 15 May 2016. A CBC News article said the bill “would force the government's hand to implement all provisions of the declaration”: John Paul Tasker, “Liberal government backs bill that demands full implementation of UN Indigenous rights declaration”, CBC News, 21 November 2017. An interview with lawyer Tom Isaac included an exchange in which the bill is said to “require all Canadian laws to be harmonized with UNDRIP”, to which Mr. Isaac replied in part, “It says every Canadian law will be interpreted in a manner consistent with UNDRIP”: Nelson Bennett, “Expert sees long road ahead in settling Aboriginal law” Business in Vancouver, 8 November 2018.
[2] Commercial Arbitration Act RSC 1985 c 17 (2nd Supp).
[3] E.g., International Commercial Arbitration Act, 2017 SO 2017 c 2 Sch 5 (Ontario); International Commercial Arbitration Act RSNS 1989 c 234 (Nova Scotia).
[4] E.g., International Commercial Arbitration Act RSY 2002 c 123.
[5] UN GA Res 61/295 (13 September 2007).
[6] P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. (2009) at §2-012.
[7] [1976] CanTS no 47.
[8] [1970] CanTS no 28.
[9] Often-cited examples are the Universal Declaration of Human Rights, UN GA Res 217 A (III) (1948), the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, UN GA Res 2625 (1970), and the Charter of Economic Rights and Duties of States, UN GA Res 3281 (XXIX) (1974).
[10] See, e.g., the Final Report of the International Law Association’s Sofia Conference (2012) on the Rights of Indigenous Peoples (available online at http://www.ila-hq.org/index.php/committees) and J. Hohmann and M. Weller, eds., The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford University Press, 2018).
[11] ILA Final Report, above note 8, at 29.
[12] See, e.g., the Supreme Court of Canada’s consideration of General Assembly resolutions in Pushpanathan v. Canada (Minister of Citizenship and Immigration)[1998] 1 SCR 982 at paras. 116–19, R. v. Ewanchuk [1999] 1 SCR 330 at para. 72, R. v. Sharpe [2001] 1 SCR 45 at para. 178. Other examples include: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1 at paras. 66-7 (General Comment 20 of the UN Human Rights Committee); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) [2004] 1 SCR 76 at paras. 33, 186-8 (various works of UN treaty monitoring bodies); Divito v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 47 at paras. 26-7 (General Comment 27 of the UN Human Rights Committee); Amaratunga v. Northwest Atlantic Fisheries Organization 2013 SCC 66 at para. 62 (General Comment 32 of the UN Human Rights Committee); Kazemi Estate v. Islamic Republic of Iran 2014 SCC 62 at paras. 146-8, 225-6 (reports of the UN Committee Against Torture).
[13] Dell Computer Corp v. Union des consommateurs 2007 SCC 34 at paras. 45-6.
[14] See, for instance, our courts’ use of the UNHCR Refugee Handbook in refugee proceedings: Canada (Attorney General) v. Ward [1993] 2 SCR 689 at 713–14; Chan v. Canada (Minister of Employment and Immigration) [1995] 3 SCR 593; Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982; Hinzman v. Canada (Citizenship and Immigration) 2007 FCA 17 at para. 23.
[15] See my argument to this effect in G. van Ert, “Three good reasons why UNDRIP can’t be law—and one good reason why it can” (2017) 75:1 The Advocate 29-36.
[16] Parliament’s power to implement treaties is limited to its legislative jurisdiction: Attorney-General for Canada v. Attorney-General for Ontario (Labour Conventions case) [1937] AC 326.
[17] Some international law examples are: Chemical Weapons Convention Implementation Act SC 1995, c 25; World Trade Organization Agreement Implementation Act SC 1994 c 47; North American Free Trade Agreement Implementation Act SC 1993 c 44; Anti-Personnel Mines Convention Implementation Act SC 1997 c 33; Civil International Space Station Agreement Implementation Act SC 1999 c 35; Canada-Chile Free Trade Agreement Implementation Act SC 1997 c 14; International Conventions Implementation Act RSA 2000 c I-6; Intercountry Adoption (Hague Convention) Implementation Act SS 1995 c I-10.01. Examples of laws implementing non-international agreements include: Canada–Newfoundland and Labrador Atlantic Accord Implementation Act SC 1987 c 3; Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act SC 1988 c 28; Musqueam Reconciliation, Settlement and Benefits Agreement Implementation Act SBC 2008 c 6; Internal Trade Agreement Implementation Act SNS 1995-96 c 8; etc.
[18] See note 17, above.
[19] R v. Hape 2007 SCC 26 at paras. 37-9. See also: The Ship “North” v. The King (1906) 37 SCR 385; Re Foreign Legations [1943] SCR 208; Re Armed Forces [1943] SCR 483; Saint John (Municipality of) v. Fraser-BraceOverseas Corp. [1958] SCR 263; etc.
[20] See note 15, above.
[21] E.g.: Canada-Israel Free Trade Agreement Implementation Act SC 1996 c 33 s 8; World Trade Organization Agreement Implementation Act SC 1994 c 47 s 8; North American Free Trade Agreement Implementation Act SC 1993 c 44 s 10; Canada–Ukraine Free Trade Agreement Implementation Act SC 2017 c 8 s 9; Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act SC 2017 c 6 s 9; Déline Final Self-Government Agreement Act SC 2015 c 24 s 4(1); Anishinabek Nation Education Agreement Act SC 2017 c 32 s 5(1); etc.
[22] British Columbia (Attorney General) v. Canada (Attorney General); Re An Act Respecting the Vancouver Island Railway [1994] 2 SCR 41 at 109-10; Fraser v. Janes Family Foods Ltd. 2012 FCA 99 at para. 22.
[23] “La Déclaration des Nations Unies sur les droits des peuples autochtones adoptée par l’Assemblée générale des Nations Unies le 13 septembre 2007 par sa résolution 61/295 et dont le texte est reproduit à l’annexe constitue un instrument universel garantissant les droits internationaux de la personne et trouve application au Canada.”
[24] See Mikisew Cree First Nation v. Canada (Governor General in Council) 2018 SCC 40 at para. 122 (quoting Reference Re Canada Assistance Plan (B.C.)[1991] 2 SCR 525 at 560: “[a] restraint…in the introduction of legislation is a fetter on the sovereignty of Parliament itself”); see also para. 34.
[25] E.g.: Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act SC 2017 c 6 s 7; World Trade Organization Agreement Implementation Act SC 1994, c 47 s3; Canada-Israel Free Trade Agreement Implementation Act SC 1996 c 33s 4; etc. See also the Civil International Space Station Agreement Implementation Act SC 1999 c 35s 3, which uses the more unusual (but still clear) formulation, “The purpose of this Act is to fulfil Canada’s obligations under the Agreement”.
[26] E.g.: Tax Conventions Implementation Act, 2013 SC 2013 c 27 ss 9 and 12; Income Tax Conventions Implementation Act, 1995 SC 1995 c 37 ss 14, 10 and 16; Intercountry Adoption (Hague Convention) Implementation Act SS 1995 c I-10.01 s 3; Maanulth First Nations Final Agreement Act SC 2009 c 18 s 4(1); Anishinabek Nation Education Agreement Act SC 2017 c 32 s 5(1); etc.
[27] Being Part I of the Income Tax Conventions Implementation Act 1996 SC 1997 c 27.
[28] SC 2017 c 32.
[29] In his April 2018 written brief to the House of Commons Standing Committee on Indigenous and Northern Affairs (http://www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR9762671/br-external/NewmanDwight-e.pdf), Prof. Dwight Newman pointed to compelling policy reasons for not giving the Declaration prevalence over existing laws without further study. I am not disregarding this concern. I simply note that if the bill truly seeks to implement the Declaration, a provision giving it prevalence over conflicting laws is an available and effective means of doing so.
[30] As Prof. Newman pointed out (above, note 29), this slow march is hard to reconcile with s. 2(2)’s stipulation that nothing in the bill be construed as delaying the application of the Declaration in Canadian law. But the use of the non-standard term “application” here, consistently with s. 3, seems to point to the interpretation I advance above, i.e., that s. 2(2) is intended to preserve the possibility that the courts give effect to the Declaration through the common law or constitutional interpretation rather than by means of the bill itself.
[31] Kelowna Accord Implementation Act SC 2008 c 23.
[32] James Bay and Northern Quebec Native Claims Settlement Act SC 1976-77 c 32.
[33] British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41 at 109-10.
[34] Hansard, 42nd Parliament, 1st Session, Number 245 (5 December 2017) at 1835.
[35] van Ert, note 15, above, at 29.
