The United Nations Declaration on the Rights of Indigenous Peoples and the Division of Powers: Considering Federal and Provincial Authority in Implementation

Abstract

With the federal and some provincial governments committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, questions have largely shifted from whether the Declaration should be implemented to the mechanics of implementation. This paper enters into this discussion by analyzing the impact of the constitutional division of powers on implementation efforts. In this, it seeks to provide some clarity about what the federal and provincial governments can hope to achieve in respect of implementation in light of the ambit of their respective constitutional authority. This will provide some insight, it is hoped, into what can reasonably be expected of implementation at the federal and provincial levels. Three preliminary questions give shape to this inquiry: why is there a need for both federal and provincial implementing legislation? What can legislation from each level of government hope to achieve? What will happen if federal and provincial implementation legislation conflict? Part 1 provides a brief account of the legal parameters of UNDRIP implementation. Part 2 addresses issues raised by implementation in a federal state. Part 3 considers the scope of federal and provincial jurisdiction in detail. Parts 4 and 5 look at potential conflicts that may arise; the former considers scenarios in which the federal government seeks to exercise its jurisdiction to impose implementation standards on reluctant provinces, while the latter considers a scenario wherein a province pursues implementation at odds with federal legislation.

Keywords: UNDRIP, implementation, Aboriginal Rights, division of powers