First opposed, then endorsed. It’s now pledged, but called “unworkable.”
In Canada the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is not ratified, nor from a legal perspective even really understood.
The history of Canada’s relationship with Indigenous rights has been a sordid one. But all that was supposed to change with the nation’s latecomer adoption of the declaration. After years of federal Conservative inaction on the file, Justin Trudeau took to the campaign trail with a promise to restore Canada’s relationship with Indigenous peoples.
The doctrine of ‘free, prior and informed consent‘ is a touchstone element of the declaration and one that will have a potentially massive impact on how megaprojects — like pipelines, the Alberta oilsands, and Site C dam — are proposed and approved in traditional Indigenous territory.
Yet onlookers say the declaration’s implementation is now hung on an NDP private member’s bill in the House of Commons and while there is broad support for its implementation, the actual meaning of UNDRIP for Canada is unclear and, as a technically non-binding document, may mean less than many think it should.
Interpretation of UNDRIP Strongly Contested
This past week the private member’s bill C-262 — first tabled by NDP MP Romeo Saganash back in April 2016 — was debated following its second reading in the House of Commons.
The bill requires the federal government to “take all measures necessary to ensure that the laws of Canada are consistent” with UNDRIP and develop a national action plan to do so in “consultation and cooperation” with Indigenous peoples.
The concise bill received full support from the federal Liberals only two weeks prior to the second reading. That catapulted it very much into the realm of possibility.
Yet the actual interpretation of UNDRIP is strongly contested.
The declaration itself is a document that lays out the basic rights Indigenous peoples that should be afforded around the world. It outlines specific obligations on the part of nations in how they relate to Indigenous peoples and their land, and contains some clauses that fly in the face of Canada’s historic treatment of First Nations, Métis, and Inuit.
The federal Liberals have seemingly contradicted themselves on multiple occasions about what UNDRIP means while some Indigenous scholars have an altogether different take on what the declaration truly means for Indigenous sovereignty and nationhood.
“When they say they’re going to support Bill C-262, I just view it as a PR stunt,” said Russ Diabo, a Kahnawake Mohawk policy advisor, in an interview with DeSmog Canada.
The federal government isn’t prepared to fully face the implications of UNDRIP, Diabo said, and how it could challenge Canada’s current legal frameworks.
“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.” https://t.co/rqeaRx2c8Q
— DeSmog Canada (@DeSmogCanada) December 12, 2017
UNDRIP: Opposed, Endorsed, Pledged, Unworkable, Supported
When UNDRIP was first adopted by the UN General Assembly in 2007, there were only four opposing votes to the 46-article declaration: the United States, Australia, New Zealand and — you guessed it — Canada.
In 2010, the Conservative government under Harper endorsed UNDRIP, describing it as an “aspirational document,” but remained a permanent objector of the declaration. Despite the endorsement, the principles of UNDRIP were never applied in Canada in any tangible way.
The Liberal Party pledged to change that. In its 2015 election platform, the party clearly stated that it would “enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.”
In May 2016, Minister Carolyn Bennett officially announced Canada’s removal of its permanent objector status to UNDRIP, committing to “fully adopting this and working to implement it within the laws of Canada, which is our charter.”
But only two months later, Minister of Justice Jody Wilson-Raybould described the adoption of UNDRIP as “unworkable” and “a political distraction.”
Near the end of 2016, when questioned about the recently approved Kinder Morgan Trans Mountain pipeline, Prime Minister Trudeau stated that Indigenous opponents “don’t have a veto,” directly contradiction previous promises that under his government ‘no would mean no’ for Indigenous peoples when it came to resource extraction and energy infrastructure projects.
Other have suggested Trudeau’s position also contradicts the key provision in UNDRIP of the need for governments to obtain “free, prior and informed consent” from Indigenous peoples prior to development.
UNDRIP Technically Non-Binding, Up to Canada To Define
In the recent House of Commons debate about Bill C-262, MP Romeo Saganash thanked the federal Liberals for “finally accepting that this should be a framework for reconciliation in this country.”
But there are still great disagreements about what legal ramifications of implementing such a “framework” will be. In international law, declarations, such as UNDRIP, are non-binding.
Robert James, principal lawyer at JFK Law in British Columbia and expert on Aboriginal law, said the eventual implementation of UNDRIP in Canadian law could impact how federal statutes are interpreted and applied, and how some elements of common law, such as duty to consult, are applied.
“One of the side effects of this is it may take what’s primarily a political document used to advance moral and political positions and really put it in the hands of the Western court to say, ‘well actually, here’s what UNDRIP really says,’” James told DeSmog Canada in an interview.
“A lot of people out there on both sides may not actually like what a court says UNDRIP means when push comes to shove.”
Tension over Indigenous Sovereignty
As to be expected, a main tension is about Indigenous sovereignty and self-determination.
James points out that Article 46 — the very last of the declaration — states that nothing in UNDRIP may be interpreted 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.”
Canada is one of those “sovereign and independent states.”
Critical components of the declaration could be interpreted as having the ability to “dismember or impair” Canada as a nation, meaning Article 46 could have significant consequence for how fully UNDRIP is implemented and embraced.
Disputes over access to land, natural resources and water, for example, lie at the heart of many recent clashes between Indigenous peoples and Ottawa. And as the Mi’kmaq blockade in New Brunswick demonstrated, Indigenous peoples are often criminalized for exercising sovereignty over traditional lands.
Patricia Doyle-Bedwell, a Mi’kmaq lawyer and professor at Dalhousie University said the power of UNDRIP lies in its ability to strengthen Indigenous rights to protect land and water.
“That’s what that is about. We’re not going to have anything if we don’t have our land,” she told DeSmog Canada.
“We have the right to our survival, our dignity, our way of being as Indigenous people.”
How Does UNDRIP Fit In With Constitutionally Protected Aboriginal Rights?
In 1982 Canada amended its constitution to — for the first time — enshrine the rights of Canada’s indigenous peoples.
The amendment, Section 35, states simply: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
The creation of Section 35 represented a turning point in Canada’s history and a monumental victory Canada’s Indigenous peoples fought very hard for. Yet the wording of the section has been criticized for its vagueness which doesn’t define what those rights are.
So in May 2016, when Minister Bennett told the UN, “By adopting and implementing the declaration, we are excited that we are breathing life into Section 35 and recognizing it as a full box of rights for Indigenous Peoples in Canada,” concerns emerged that Canada might restrict UNDRIP under the confines of the constitution.
“Bennett is trying to contain international laws and principles and standards into Canadian domestic constitutional law and court cases,” Diabo, the Kahnawake Mohawk policy advisor, told DeSmog Canada. “That’s the problem that I have.”
Diabo said the original negotiations between Indigenous nations and Canada about the constitution weren’t a success, leaving plenty of “unfinished business.”
Former national chief of the Assembly of First Nations, Ovide Mercredi, recently called for the completion of those negotiations and the need for Canada to actually honour and fulfill its existing treaties with Indigenous peoples.
What Lies Ahead for UNDRIP?
Bill C-262 will be debated again in February 2018. A March will decide if the bill will move past second reading to committee. Given full support from the federal Liberals, it appears likely that will happen.
As that March vote approaches, the declaration will be put under increasing scrutiny. Past debate has been used to raise questions about the merits of the document and what uncertainties remain surrounding its legal implementation.
During the Dec. 5 debate in the House of Commons, Conservative MP and opposition critic for Indigenous and Northern Affairs, Cathy McLeod asked: “What is the difference between ‘free, prior, and informed consent’ and ‘consult and accommodate,’ which is what we have in law right now?”
She continued, “certainly there is no question that the declaration proposes that change in our law and we need to simply know what that is going to mean because it is important.”
As of right now, there aren’t any clear answers to that question.
For many Indigenous experts, the potential success of Bill C-262 and UNDRIP itself depends on the federal government’s perspective on Indigenous sovereignty and self-determination.
“To implement UNDRIP…we have to go back to nation-to-nation relationships,” Doyle-Bedwell said. “This idea that we have to fit it into these boxes will not advance our reconciliation.”