Canada’s Implementation of UN Declaration on Indigenous Rights Raises Questions About Oilsands, Resource Extraction

After years of refusal by the Conservative government, Canada is preparing to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — a decision that could herald the beginning of a new era in relations between First Nations and the federal government.

In a mandate letter addressed to Minister of Indigenous and Northern Affairs Carolyn Bennett, Prime Minister Justin Trudeau requested the minister “renew the relationship between Canada and Indigenous Peoples.”

The first item on Bennett’s long list of to-dos is to implement the recommendations of the Truth and Reconciliation Commission, starting first with the implementation of the UN declaration.

Implementing the declaration is a big deal for Canada, one of only four countries to not only abstain from voting on the declaration, but to actually vote against it. (The other three are the U.S., which has signaled its intention to revise its position, and New Zealand and Australia, both of which reversed their positions in 2009.)

The declaration, first adopted by the UN in 2007 after 25 years of consultation and deliberation, is meant to “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

Collision of Resource Extraction and First Nations Rights and Title

The declaration, while signalling positive intention to work with First Nations, only lays out principles so it is unclear how it  will impact real decisions on the ground.

“It’s going to be interesting to see what the federal government chooses to move forward on the quickest,” Robert Janes, litigator and First Nations rights and title expert with JFK Law, told DeSmog Canada.

According to Janes, the declaration in an opportunity for the federal government to shift gears when it comes to engagement with First Nations.

“The UN declaration includes quite a bit of discussion around ensuring there are good self-government mechanisms in place — ensuring, for example, that First Nations are able to make internal decisions free from interference from other governments,” Janes said.

“But also that First Nations are given the necessary resources to implement self-government decisions and that they’re entitled to various social rights around services, education, health and general welfare.”

Addressing these concerns within First Nations communities is where the federal government could “make some very quick gains,” Janes said.

However there are some areas where federal involvement may conflict with provincial jurisdiction. Resource development is an obvious example, Janes added.

Janes, who is currently working with the Beaver Lake Cree in their fight against the cumulative impacts of the Alberta oilsands, said that case is a good example of the province’s influence over resources.

“Where it gets tricky…is with many contentious issues, for example, in resource development: respecting treaty rights within resource development, proper compensation for taking First Nations lands, trying to obtain free and informed consent before First Nations lands are developed and even identifying where First Nations lands are.”

Janes added that resource development is primarily a provincial issue and as such “it will be tricky for the federal government to move on those matters in a way that could possibly satisfy UNDRIP and at the same time deal with that division of power.”

“In any cases ongoing, including Beaver Lake, the federal government is as involved as the provinces in fighting the First Nations,” Janes said. “No doubt it has always offended First Nations that in every fight between the provinces and First Nations the Canadian government has shown up — not in a neutral position — but actively participating in defending the provincial government’s position.”

Implementing the UN declaration may give Ottawa the political cover to step back from these fights and occupy a more neutral position.

Janes added there is still a significant amount of room for the government to step into a more proactive role in defending First Nations rights and title.

“If they actually implemented many of those things in [minister’s] mandate, which will be hard — they’re not easy, and not cheap — but if they really started to address those few things, there are many First Nations who would view that as a fundamental change with the federal government “

Long Way to Go to Repair Relationships with First Nations

While a step in the right direction, Canada will have to go much further to truly repair relations with First Nations, according to Clayton Thomas-Muller, campaigner with 350.org and member of the Mathias Colomb Cree Nation, also known as Pukatawagan, in northern Manitoba.

“I think I share in the cautious optimism regarding the Liberal government’s announcement to ratify UNDRIP. I think it’s a bold step in right direction that carries with it the same spirit of the other symbolic actions the government has taken since it swept into power,” Thomas-Muller said.

Signing the declaration is “the bare minimum standard nation states need to adopt to have strong domestic relations with local indigenous populations,” he added.

However, the Liberal government’s support for oilsands expansion and building of pipelines is concerning, Thomas Muller said, especially where development of the oilsands conflicts with First Nations rights and title and Canada’s international climate commitments.

“There’s also concern about how Trudeau will respect the veto right of First Nations while supporting the expansion of tar sands and the building of pipelines,” Thomas-Muller said, adding that, according to Canadian law, it only takes one First Nation to stop a development project.

“Just because 30 out of 40 First Nations say ‘yes’ to a project doesn’t in any way undermine or take away the sovereign right of the other 10 who oppose it.”

“That’s how collective rights work. Each sovereign First Nation has its own sovereign-to-sovereign relation with the Canadian government that Trudeau has to treat in the exact same way.”

Thomas-Muller said at this point the Liberal government has a lot of work to do “to clarify how they will keep their election promises.”

“Now we get to the hard work where the Liberal government needs to lay out their 10-point methodology for how they aim to repair some of the polarity that exists in the discussion around the Canadian economy and indigenous rights and certainly how this relates to the issue of climate change.”

Clayton Thomas-Muller with Eriel Deranger of the Athabasca Chipewyan First Nation (left) and Melina Laboucan-Massimo of the Lubicon Cree Nation (right). Photo by Zack Embree.