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Bill 76, United Nations Declaration on the Rights of Indigenous Peoples Act, 2019

Mamakwa, Sol

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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

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.

its document entitled Calls to Action, the Truth and Reconciliation Commission

of Canada is calling upon 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

or individuals on the basis of national origin or racial, religious, ethnic or

cultural differences are racist, scientifically false, legally invalid, morally

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, the 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) 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

The

United Nations Declaration on the Rights of Indigenous Peoples set out in

Schedule 1 has force of law in Ontario.

Consistency

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

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

(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.

Tabling

(2) The

Minister of Indigenous Affairs shall table the annual report in the Assembly

within 60 days after the first day of April in every year from 2020 to 2037.

Commencement

This Act comes into force on the day it receives Royal Assent.

Short

title

The

short title of this Act is the United Nations

Declaration on the Rights of Indigenous Peoples Act, 2019 .

Schedule

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 December

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 annex 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 all 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 invalid, 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 exercising, 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, especially 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

organizing 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,

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 responsibility 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 Declaration 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 recognition 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 protection 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 rights

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 region 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 fundamental 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 to 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 strengthen 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 and

cultural life of the State.

Article 6

Every

indigenous individual has the right to a nationality.

Article 7

Indigenous individuals have the rights to life, physical and mental integrity,

liberty and security of person.

Indigenous peoples have the collective right to live in freedom, peace and

security as distinct 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

Indigenous peoples and individuals have the right not to be subjected to forced

assimilation or destruction of their culture.

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 discrimination

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

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.

States shall provide redress through effective mechanisms, which may include

restitution, developed in conjunction with indigenous peoples, with respect to

their cultural, intellectual, religious and spiritual property taken without

their free, prior and informed consent or in violation of their laws,

traditions and customs.

Article 12

Indigenous peoples have the right to manifest, practise, develop and teach

their spiritual and religious traditions, customs and ceremonies; the right to

maintain, protect, and have access in privacy to their religious and cultural

sites; the right to the use and control of their ceremonial objects; and the

right to the repatriation of their human remains.

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 indigenous peoples

concerned.

Article 13

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 communities, places and persons.

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

provision of

interpretation or by other appropriate means.

Article 14

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.

Indigenous individuals, particularly children, have the right to all levels and

forms of education of the State without discrimination.

States shall, in conjunction with indigenous peoples, take effective measures,

in order for indigenous individuals, particularly children, including those

living outside their communities, to have access, when possible, to an

education in their own culture and provided in their own language.

Article 15

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.

States shall take effective measures, in consultation and cooperation with the

indigenous 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

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.

States shall take effective measures to ensure that State-owned media duly

reflect indigenous cultural diversity. States, without prejudice to ensuring

full freedom of expression, should encourage privately owned media to

adequately reflect indigenous cultural diversity.

Article 17

Indigenous individuals and peoples have the right to enjoy fully all rights

established under applicable international and domestic labour law.

States shall in consultation and cooperation with indigenous peoples take specific

measures to protect indigenous children from economic exploitation and from

performing 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.

Indigenous individuals have the right not to be subjected to any discriminatory

conditions of labour and, inter 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 cooperate 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

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 traditional and other economic activities.

Indigenous peoples deprived of their means of subsistence and development are

entitled to just and fair redress.

Article 21

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, sanitation,

health and social security.

States shall take effective measures and, where appropriate, special measures

to ensure continuing improvement of their economic and social conditions.

Particular attention shall be paid to the rights and special needs of

indigenous elders, women, youth, children and persons with disabilities.

Article 22

Particular attention shall be paid to the rights and special needs of

indigenous elders, women, youth, children and persons with disabilities in the

implementation of this Declaration.

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 development. 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 through their own institutions.

Article 24

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.

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 traditionally owned or otherwise occupied and used

lands, territories, waters and coastal seas and other resources and to uphold

their responsibilities to future generations in this regard.

Article 26

Indigenous peoples have the right to the lands, territories and resources which

they have traditionally owned, occupied or otherwise used or acquired.

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.

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 to participate in this process.

Article 28

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 otherwise occupied or used, and which have been

confiscated, taken, occupied, used or damaged without their free, prior and

informed consent.

Unless otherwise freely agreed upon by the peoples concerned, compensation

shall take the form of lands, territories and resources equal in quality, size

and legal status or of monetary compensation or other appropriate redress.

Article 29

Indigenous peoples have the right to the conservation and protection of the

environment and the productive capacity of their lands or territories and

resources. States shall establish and implement assistance programmes for

indigenous peoples for such conservation and protection, without

discrimination.

States shall take effective measures to ensure that no storage or disposal of

hazardous materials shall take place in the lands or territories of indigenous

peoples without their free, prior and informed consent.

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

Military activities shall not take place in the lands or territories of

indigenous peoples, unless justified by a relevant public interest or otherwise

freely agreed with or requested by the indigenous peoples concerned.

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

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 traditional 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 traditional cultural

expressions.

In conjunction with indigenous peoples, States shall take effective measures to

recognize and protect the exercise of these rights.

Article 32

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.

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 affecting

their lands or territories and other resources, particularly in connection with

the development, utilization or exploitation of mineral, water or other

resources.

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

Indigenous peoples have the right to determine their own identity or membership

in accordance with their customs and traditions. This does not impair the right

of indigenous individuals to obtain citizenship of the States in which they

live.

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

Indigenous peoples, in particular those 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.

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

Indigenous peoples have the right to the recognition, observance and

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.

Nothing in this Declaration may be interpreted 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 all 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. Ways and means of ensuring

participation of indigenous peoples on issues affecting 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 herein constitute the minimum standards for the survival,

dignity and well-being of the indigenous 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

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 contrary 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 sovereign and independent States.

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 determined by law and in accordance with 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 for meeting the just and most compelling

requirements of a democratic society.

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.

Date Bill stage Event Outcome Committee

March 21, 2019

Second Reading

Ordered referred to Standing Committee

Standing Committee on General Government

March 21, 2019

Second Reading

Vote

Carried on division

March 21, 2019

Second Reading

Debated

March 6, 2019

First Reading

Vote

Carried

Debates and Progress

First Reading

March 6, 2019

Committee

Second Reading

March 21, 2019

Mr. Sol Mamakwa, Mrs. Nina Tangri, Ms. Andrea Horwath, Ms. Christine Hogarth, Mr. John Fraser, Mrs. Gila Martow, Mr. Guy Bourgouin

March 21, 2019

March 21, 2019

Carried on recorded division. Referred to the Standing Committee on General Government.

Committee

Standing Committee on General Government

Third Reading

Royal Assent

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