Truth and Reconciliation, Constitution Act 1982, s 35, United Nations Declaration on the Rights of Indigenous Peoples, Indigenous Rights, Aboriginal Rights
In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this has been a problem with s 35 interpretation to date.
To galvanize a more robust approach to s 35, the TRC called on governments throughout Canada to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. On June 21, 2021, the federal government took an important step towards its commitment to implement the TRC Calls to Action and the UN Declaration by passing into law, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. By providing comprehensive details about the nature and content of Indigenous rights and states’ obligations in relation to them, the UN Declaration and the UN Declaration Act hold much potential to breathe new life into s 35 to achieve the robust interpretation and implementation the TRC envisioned.
Part 1 of the paper explain how the UN Declaration applies to Canadian law, and how the federal UN Declaration Act affirms the Declaration’s status in Canadian law, as well as commits the federal government to future substantive implementation of the Declaration, including the review of existing laws and policies to ensure conformity with the Declaration. Crucially, the UN Declaration Act affirms the Declaration’s use by courts to interpret domestic law. This has already been happening, but the affirmation in the Act removes any lingering doubt that previously dogged courts’ application of the UN Declaration to Canadian law. The UN Declaration benefits from the presumption of conformity with international law, under the framework recently developed by the SCC in Quebec (Attorney General) v 9147-0732 Québec inc., because it is an instrument which both the Canadian executive and Parliament have affirmed their commitment to.
Part 2 argues that in the case of s 35 of the Constitution Act, 1982, the UN Declaration, now buoyed by the UN Declaration Act, holds significant promise to address long-standing problems in the SCC’s approach to s 35 by filling the sparse s 35 ‘box’ with a detailed elaboration of Indigenous individual and collective rights, and concomitant government obligations. It also supplies key context, values and principles and specific provisions to overcome the long-lasting impacts the doctrine of discovery has had on our law, as well as situate Indigenous collective rights as universal fundamental human rights that all Indigenous groups in Canada are entitled to.
Naiomi Metallic, "Breathing Life into Our Living Tree and Strengthening our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act" in Richard Alpert, Wade Wright, Kate Berger, & Michael Pal, eds, Rewriting the Canadian Constitution [forthcoming].