UNDRIP is now part of Canada’s “domestic positive law”. What does this mean?

Thursday, April 4, 2024

Seventeen years after the UN General Assembly passed the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), and eight years after Canada endorsed UNDRIP “without qualification”, the Supreme Court of Canada has finally made its first substantive comments on UNDRIP, in its recent C-92 Reference (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5).

Given the Court’s previous reluctance to substantively comment on UNDRIP, the Court’s statements on UNDRIP in the C-92 Reference came as a surprise. In sweeping terms, the Court announced its opinion that UNDRIP has been “incorporated into the country’s domestic positive law” (para. 15, see also para. 4). What does this mean?

For a bit of additional context, the federal government, in 2021, enacted legislation entitled the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the “UNDRIP Act”). This legislation, at section 5, committed Canada to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration [UNDRIP].” Crucially, at section 4, the legislation also affirmed “the Declaration [UNDRIP] as a universal international human rights instrument with application in Canadian law”.

The wording of the Supreme Court’s opinion in the C-92 Reference raises a number of questions. Is the Court just making an observation about what the UNDRIP Act does? In which case, did the Supreme Court not go any further than the text of the federal legislation? And, along those lines, how does UNDRIP apply to provincial and territorial laws?

In this vein, it is helpful to look at the words of the Supreme Court in context. It is helpful to draw on the French text of the judgement in the C-92 Reference, since the two language versions of the Supreme Court decision are equally valid. The Court said, at para 15:

Looking at the French text can help us resolve some confusion about what is meant by the “country’s domestic positive law”. In French, there are two words that can be translated into the English word “law”: loi and droit. Loi refers to statutory law – law made by some political, law-making body. Note that the other use of “loi” in that second sentence of paragraph 15 is rendered as “Act” in English. The word “droit”, on the other hand, refers to the deeper law that exists and is practiced in a country. Parliament can make loi but would not usually make droit.

So when the Court described UNDRIP in English as being “incorporated into the country’s domestic positive law”, in French, it said that “la Déclaration est intégrée dans le droit positif interne du pays.” This suggests that it was not just making a neutral observation about the UNDRIP Act. It was in fact arguing that the UNDRIP Act had integrated UNDRIP into Canadian law in the deeper sense. In other words, UNDRIP is now part of Canadian law.

What about the question of how it applies to provinces and territories? As a second point, it is also important to note that the Court said that UNDRIP is now incorporated into “the country’s domestic positive law”. In French, this is rendered as “le droit positif interne du pays”. The Court could have said “du Canada” or “du fédérale”, which could have narrowed the application of what they were saying to the federal government. But they chose instead to use the word “du pays”, referring to the geographical entity of Canada.

Taking these two points together, it seems clear that the Court intended to say that UNDRIP is now part of Canadian law writ large – with application to federal, provincial, and territorial law – and went beyond just reiterating what the UNDRIP Act did. 

This interpretation is buttressed by the words of the Court at para 17:

By “legislation of this kind”, the Court appears to be referring to the UNDRIP Act. The Court is saying, therefore, that the UNDRIP Act did not create rights, but rather recognized rights that already existed. It is a codification of pre-existing Indigenous rights.

What the Court appears to be doing in the C-92 Reference, therefore, is interpreting the UNDRIP Act as recognizing UNDRIP as a pre-existing set of rights that must continue to animate Canadian law.

Of course, this interpretation will need to be tested out in court, and this blog post can only offer a modest and preliminary set of observations. However, based on the textual evidence canvassed above, it would appear that the Court intended a robust endorsement of the role of UNDRIP in Canadian law.