Indigenous Rights

Environment and Climate Change Canada (ECCC) has released a discussion paper entitled Facilitating Projects on Crown and Public Land in Canada’s Greenhouse Gas Offset Credit System (the Paper). The purpose of the Paper is to gather feedback on preliminary considerations for projects in Canada’s Greenhouse Gas (GHG) Offset Credit System (Offset System) on provincial Crown land or public land administered by territorial governments (Crown or public land). These considerations include (i) respecting Indigenous rights, (ii) acknowledging the role of provinces and territories in authorizing project activities, and (iii) demonstrating entitlement for offset credits issued for GHG emission reductions. These considerations were formed based on feedback from a 2022 discussion paper entitled Carbon Pollution Pricing: Considerations for facilitating Indigenous participation in the Federal Greenhouse Gas Offset System and ongoing engagement activities. Earlier this year, ECCC published a protocol for improved forest management (IFM) on private land (see our earlier bulletin here). ECCC continues to indicate that it will be initiating the development of a protocol on IFM on public land later this year. This bulletin briefly summarizes the three key considerations outlined in the Paper: 1. Aligning with the principle of recognizing and upholding Indigenous rights Requirements for offset projects will be guided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the right of Indigenous peoples to free, prior, and informed consent (FPIC). ECCC is proposing that projects on Crown or public land must have, as a matter of policy, the consent of Indigenous peoples holding asserted or established Aboriginal or Treaty rights in the project area before they can be registered in the federal Offset System. Consent must be documented and must reflect support of the rights-holding group in their preferred approach. Depending on the Indigenous nation or community, this could take the form of a Band Council Resolution, Memorandum of…

Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act (the Act), received Royal Assent on June 21, 2021. The Act affirms the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a universal international human rights instrument applicable in Canadian law and seeks to provide a framework for its implementation in Canada. This bulletin provides an overview of the implications and key aspects of the Act. Implications of the Act. The Act is widely seen as the first step in the domestic implementation of UNDRIP in Canada and follows similar legislation adopted by British Columbia in 2019. The Act does not itself implement UNDRIP into Canadian law but provides a pathway for its adoption and application, commensurate with Canadian law and the framework for recognizing the rights of Indigenous peoples provided under Canada’s Constitution. It is not yet clear to what extent Canadian law will be made consistent with certain provisions of UNDRIP, specifically the right of Indigenous peoples to free, prior, and informed consent (FPIC) for actions that may affect their rights, resources, and traditional territories. It is, however, probable that the use of UNDRIP as a tool for the interpretation of rights and statutes is likely to increase, in light of the Act, as laws are amended and adopted, in order to ensure or improve consistency with UNDRIP. Rights of Indigenous peoples. Section 2(2) provides that the Act upholds, and does not abrogate or derogate from, the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982. Consistency with UNDRIP. Section 5 provides that the Government of Canada must take all measures to ensure that the laws of Canada are consistent with UNDRIP. Action Plan. Section 6 provides that the Minister designated by the Governor in Council pursuant to section 3 (the Minister), must prepare…

ECCC Publishes Paper on Facilitating GHG Offset Projects on Crown and Public Land

Canada’s UNDRIP Law Receives Royal Assent