The UNDA action plan has been published. Here are three sticking points to control progress

The federal government has published an action plan on how it will implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The release of its United Nations Declaration on the Rights of Indigenous Peoples (UNDA) on Wednesday was timed to coincide with National Indigenous Peoples Day, two years after the legislation received royal assent.

UNDA, which contains articles outlining a wide range of collective and individual indigenous rights, will have implications for all federal departments. There are also more than 700 federal laws in Canada and all of them will be affected by the implementation of UNDRIP, a Justice Canada official said at a technical briefing on Wednesday.

Much of the document commits to a way forward, including developing mechanisms for accountability. But much remains to be clarified as to how these actions will manifest themselves in policy and what influence they will have on resource projects, modern treaties and the dismantling of the Indigenous Law. That is why Federal Attorney General David Lametti calls UNDA a perennial and flawed roadmap for implementing UNDRIP into Canadian law and policy.

Here are three sticking points to consider in the UNDA action plan.

What is the definition of free, prior and informed consent?

Free, prior and informed consent is one of the core doctrines of UNDRIP, which allows nations to give or withhold permission to develop on their territories. However, it is an ambiguous concept when the sovereignty of a nation-state, such as the Crown, cannot be interrupted.

There is no mention of First Nations having veto power over natural resource projects in the UNDA action plan, keeping pace with what Ottawa has said in the past. Without a veto, it is unclear how free, prior and informed consent will be defined in the future when industry and provinces are involved.

Ottawa is not in a position to define free, prior and informed consent, a Natural Resources Canada official said National Observer of Canada. However, industry and indigenous partners are interested in a definition.

The federal government has published an action plan on how it will implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Here are three things to keep in mind moving forward. #UNDRIP #UNDA #Reconciliation

Ottawa is in a position to bring all stakeholders together to develop expectations around free, prior and informed consent for project development, they explained.

The concept also extends beyond natural resources, including participation in decision-making processes and modern treaty rights. The official notes will not be a one-size-fits-all definition.

Natural Resources Canada is committed to creating a process that will help define the parameters of free, prior and informed consent, the Justice Minister said at a news conference on Wednesday.

“I think you can expect a framework in the future,” Lametti added.

Provinces without a UNDRIP law remain a big question mark

BC is the only province that has enshrined UNDRIP in law and has developed its own action plan with DRIPA. The rest of the provinces continues to be a big question mark.

The UNDA action plan addresses only federal legislation, including industry regulated by the federal government.

Government officials say they hope the feds can unite the provinces and territories over time, citing UNDA as “generational work”.

Screenshot of a diagram within the UNDA action plan describing the implementation of UNDRIP. Photo courtesy of the Department of Justice

In 2020When the federal government introduced UNDRIP legislation, six provinces objected: Ontario, Quebec, Alberta, Saskatchewan, Manitoba, and New Brunswick.

With the UNDA action plan released, Lametti hopes the provinces will work with Ottawa to adopt UNDA principles, “either formally or informally,” in the future.

“We are leading by example here,” he added.

This is a significant sticking point given that the largest Crown landowners are the provinces, meaning they have the majority of jurisdictional power over natural resource development.

How will Indigenous Peoples and their communities be involved in the economic participation of natural resource projects?

UNDA includes sections on how to increase this participation.

However, it is unclear what actions the feds will take and what that involvement would look like.

Natural Resources Canada is developing a national benefit-sharing framework that will include measures such as increasing indigenous capacity to participate in projects, as well as increasing access to affordable capital, according to documents obtained through a freedom of information request.

Additionally, $25 million has been earmarked to engage and build indigenous capacity to support participation in the critical minerals sector.

Matteo Cimellaro / National Observer of Canada / Local Journalism Initiative

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