It's a really important question. I think there is a lot of confusion about how this operates. I don't think many people are under the assumption that Bill C-15 would elevate UNDRIP to the extent where it would create new actionable grounds.
However, what you're speaking to is the interpretation in clause 4 that recognizes that UNDRIP.... As a declaration, it's not a binding treaty under international law, as I'm sure you're aware. The purpose of this clause would be to say that, for Canada, this declaration is now considered to be an international human rights instrument with application in Canada. That means it becomes an interpretive tool under the presumption of conformity. When a charter challenge is brought or when some action or judicial review is brought before the courts, this would allow the courts to use UNDRIP as an interpretive tool. The presumption of conformity is a well-established legal principle that says the courts will work to interpret our legislation in a way that conforms with international law that is binding on Canada.
What does that do? One of the main concerns is article 32 of UNDRIP. If we now have UNDRIP elevated to an interpretive tool, and article 32 requires that governments consult in order to obtain free, prior and informed consent before approving projects that can have adverse effects on indigenous rights, how does this fit into the legal test?
I wish we had more time. These are obviously complex issues. I don't know that I'll be able to boil it down too quickly, but the Coles Notes version is essentially that it's not that large of an effect. The existing jurisprudence we have with respect to the duty to consult, and that most people refer to in the Haida Nation case, still stands. Whether or not there is an existing claim, what the content of the duty to consult might be based off of an unresolved claim—all of that jurisprudence is still relevant. In fact, even the jurisprudence that deals with the test for justification for an infringement of a section 35 right will still remain relevant right up until the step for justification, where the reverse onus turns to the government to justify any infringement.
For example, if you have a proposed project and you have—