p42 s1 bill 76 b076 e.pdf

Ontario — Bills

1ST SESSION, 42ND LEGISLATURE, ONTARIO 68 ELIZABETH II, 2019 Bill 76

An Act to ensure that the laws of Ontario are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples Mr. S. Mamakwa Private Member’s Bill 1st Reading March 6, 2019 2nd Reading 3rd Reading Royal Assent

EXPLANATORY NOTE The Bill enacts the United Nations Declaration on the Rights of Indigenous Peoples Act, 2019 . The Act requires the Government of Ontario to take all measures necessary to ensure that the laws of Ontario are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

Bill 76 2019

An Act to ensure that the laws of Ontario are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

Preamble The Government of Ontario recognizes that the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples should be adopted in the laws of Ontario. In its document entitled Calls to Action, the Truth and Reconciliation Commissio n of Canada is calling u pon provincial governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

The Government of Ontario recognizes that: Indigenous peoples have suffered historic injustices as a result of, among many causes , their colonization and dispossession from their lands, territories and resources. All doctrines, policies and practices based on or advocating superiority of peoples o r individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, moral ly condemnable and socially unjust.

Further, the Government of Ontario believes that it is important for Ontario to reject colonialism and engage in a contemporary approach based on good faith and on principles of justice, democracy, equality, non-discrimination, good governance and respect for human rights.

For these reasons, t he Government of Ontario is committed to taking appropriate measures, including legislative, policy and administrative measures, at the provincial level, in consultation and cooperation with indigenous peoples, to achieve the ends of the United Nations Declaration on the Rights of Indigenous Peoples and to follow up on its effectiveness. Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation Aboriginal and treaty rights 1

(1) For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in

section 35 of the Constitution Act, 1982. Declaration

(2) Nothing in this Act is to be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in Ontario law. Application of United Nations Declaration on the Rights of Indigenous Peoples 2 The United Nations Declaration on the Rights of Indigenous Peoples set out in

Schedule 1 has force of law in Ontario. Consistency 3 The Government of Ontario shall, in consultation and cooperation with indigenous peoples in Ontario, take all measures necessary to ensure that the laws of Ontario are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. Action Plan 4 The Government of Ontario shall, in consultation and cooperation with indigenous peoples in Ontario, develop and implement a provincial plan to achieve the objectives of the United Nations Declaration on the Rights of Indigenous Peoples. Annual Report 5

(1) The Minister of Indigenous Affairs shall prepare an annual report that describes the implementation of the measures referred to in

section 3 and the plan referred to in

section 4.

2 Tabling

(2) The Minister of Indigenous Affairs sha ll table the annual report in the Assembly within 60 days after the first day of April in every year from 2020 to 2037. Commencement 6 This Act comes into force on the day it receives Royal Assent.

Short title 7 The

short title of this Act is the United Nations Declaration on the Rights of Indigenous Peoples Act, 2019.

SCHEDULE 1 UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES Resolution adopted by the General Assembly [without reference to Main Committee (A/61/L.67 and Add. 1)] 61/295.

United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Taking note of the recommendation of the Human Rights Council contained in its resolution 1/2 of 29 June 2006, 1 by which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples, Recalling its resolution 61/178 of 20 Decembe r 2006, by which it decided to defer consideration of and action on the Declaration to allow time for further consultations thereon, and also decided to conclude its consideration before the end of the sixty-first session of the General Assembly, Adopts the United Nations Declaration on the Rights of Indigenous Peoples as contained in the an nex to the present resolution. 107th plenary meeting 13 September 2007 1 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 53 (A/61/53), part one, chap.

II, sect. A.

Annex United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter, Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such, Affirming also that al l peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind, Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally inval id, morally condemnable and socially unjust, Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercisi ng, in particular, their right to development in accordance with their own needs and interests, Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especial ly their rights to their lands, territories and resources, Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States, Welcoming the fact that indigenous peoples are or ganizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,

3 Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs, Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment, Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Recognizing in particular the right of indigenous families and communities to retain shared responsibil ity for the upbringing, training, education and well-being of their children, consistent with the rights of the child, Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character, Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights 2 and the International Covenant on Civil and Political Rights, 2 as well as the Vienna Decl aration and Programme of Action, 3 affirm the fundamental importance of the right to self -determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, 2 See resolution 2200 A (XXI), annex. 3 A/CONF.157/24 (Part I), chap.

III.

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self -determination, exercised in conformity with international law, Convinced that the re cognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith, Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned, Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples, Believing that this Declaration is a further important step forward for the recognition, promotion and p rotection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field, Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human r ights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well - being and integral development as peoples, Recognizing that the situation of indigenous peoples varies from regi on to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration, Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundam ental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights 4 and international human rights law. 4 Resolution 217 A (III).

Article 2 Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 3 Indigenous peoples have the right to self -determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4 Indigenous peoples, in exercising their right t o self-determination, have the right to autonomy or self -government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5 Indigenous peoples have the right to maintain and str engthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social a nd cultural life of the State.

Article 6 Every indigenous individual has the right to a nationality.

Article 7 1 Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. 2 Indigenous peoples have the collective right to live in freedom, peace and security as d istinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 8 1 Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2 States shall provide effective mechanisms for prevention of, and redress for: (

a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (

b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (

c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (

d) Any form of forced assimilation or integration; (

e) Any form of propaganda designed to promote or incite racial or ethnic discrim ination directed against them.

Article 9 Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1 Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2 States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultura l, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12 1 Indigenous peoples have the right to manifest, practise, develop and teach their spir itual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right t o the use and control of their ceremonial objects; and the right to the repatriation of their human remains.

5 2 States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indige nous peoples concerned.

Article 13 1 Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for co mmunities, places and persons. 2 States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the p rovision of

interpretation or by other appropriate means.

Article 14 1 Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2 Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. 3 States shall, in conjunction with indigenous peoples, take effective meas ures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in th eir own culture and provided in their own language.

Article 15 1 Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. 2 States shall take effective measures, in consultation and cooperation with the in digenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 16 1 Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination. 2 States shall take effective measures to ensure that State -owned media duly reflect indi genous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

Article 17 1 Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable internat ional and domestic labour law. 2 States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performin g any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment. 3 Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, int er alia, employment or salary.

Article 18 Indigenous peoples have the right to participate in decision -making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 States shall consult and cooper ate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 20 1 Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditiona l and other economic activities.

6 2 Indigenous peoples deprived of their means of subsistence and development are enti tled to just and fair redress.

Article 21 1 Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitatio n, health and social security. 2 States shall take effective measures and, where appropriate, special measures to en sure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, wome n, youth, children and persons with disabilities.

Article 22 1 Particular attention shall be p aid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration. 2 States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23 Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to developmen t. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes t hrough their own institutions.

Article 24 1 Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services. 2 Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionall y owned or otherwise occupied and used lands, territories, waters and c oastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26 1 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2 Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3 States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right t o participate in this process.

Article 28 1 Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherw ise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their fre e, prior and informed consent. 2 Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories a nd resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 29 1 Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands o r territories and resources.

States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. 2 States shall take effective measures to ensure that no storage or disposal of haz ardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent . 3 States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 30 1 Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a r elevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2 States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 31 1 Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and tra ditional games and visual and performing arts.

They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and tra ditional cultural expressions. 2 In conjunction with in digenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 32 1 Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project aff ecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mine ral, water or other resources. 3 States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 33 1 Indigenous peoples have the right to determine their own identity or membership in accordance with their cus toms and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2 Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34 Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist , juridical systems or customs, in accordance with international human rights standards.

Article 35 Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

Article 36 1 Indigenous peoples, in particular thos e divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2 States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

Article 37 1 Indigenous peoples have th e right to the recognition, ob servance an d enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2 Nothing in this Declaration may be in terpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38 States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Article 39 Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.

Article 40 Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for al l infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

Article 41 The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Wa ys and means of ensuring participation of indigenous peoples on issues affect ing them shall be established.

Article 42 The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43 The rights recognized here in constitute the minimum stand ards for the survival, dignity and well-being of the in digenous peoples of the world.

Article 44 All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

Article 45 Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

Article 46 1 Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act cont rary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sov ereign and independent States. 2 In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected.

The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determin ed by law and in accordance wit h international human rights obligations.

Any such limitations shall be non -discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and f or meeting the just and most compelling requirements of a democratic society. 3 The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

Document details

Collection	Ontario — Bills
Citation	p42 s1 bill 76 b076 e.pdf
Type	bill
Volume / chapter	p42 s1 bill 76 b076 e.pdf
Language	en
Format	json
Source	PROVINCIAL
Identifier	e3cb962a219dd0aa5340bb917e8f4d033376f227

Source file is stored in the law ingest library (json).