Why full recognition of UNDRIP in Canada would be a game changer

By Supriya Tandan December 7, 20177 December 2017

Bill-C262 a, small, four-page bill with the power to fundamentally change the relationship between Indigenous Peoples and the Canadian government was debated for an hour in the House of Commons on Tuesday. The main goal of the NDP-sponsored bill (with Liberal-support) is to establish a national action plan to guide the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law. It’s the seventh attempt in nine years to do so, but this time the bill has the support of the government. The implementation would be in-keeping with Prime Minister Trudeau’s recent announcement before the United Nations that his government would remove Canada’s objector status to UNDRIP, and add its signature to the document.

UNDRIP is a human rights instrument adopted by the United Nations and is the work of over 20 years of negotiations between Indigenous Peoples and States. In a keynote address at the Constitutional Law Symposium, Professor John Borrows, the Canada Research Chair in Indigenous Law Chair at the University of Victoria Law School, argued that by implementing UNDRIP in Canadian law, the country could re-define the standard for recognizing aboriginal governance structures under s. 35 of the Constitution Act, 1982. By moving passed R. v Van der Peet, which recognizes only those aboriginal rights that existed at the time of contact, and using UNDRIP instead, Canada could “reject constitutional distinctions between pre- and post- contact assertions of sovereignty.” Professor Borrows concluded his lecture by saying that UNDRIP has the power to inspire a revitalization of both indigenous law and Canadian law.

Previous Canadian governments hailed the Declaration as an aspirational document. Still, they qualified their support, along with the governments of Australia, New Zealand and the United States, citing concerns over certain provisions of the Declaration. Specifically, they balked at articles 19 and 32 of the Declaration, which require free, prior and informed consent (FPIC) on any projects affecting Aboriginal lands and territories. The Harper government and others before it were concerned that this could constitute a veto over vital projects. However, as Lorraine Land, a partner at Olthuis Kleer Townshend writes, this concern was likely misplaced:

Efforts to use an FPIC frame to address Indigenous Peoples’ rights in Canada have elicited howls of protest, however. Opponents say it is impractical for Canada to abide by this international human rights instrument. Canadian law on Aboriginal consultation, they say, is incompatible with the Declaration and FPIC. Indigenous Peoples cannot “demand a veto” on development, they maintain. These objections relate more to the politics of FPIC (and its perceived constraint on development, particularly in the oil and gas sector), and ignore the reality that FPIC now exists as the international benchmark regarding obligations to Indigenous Peoples. On a practical level, FPIC is now clearly the standard that must be met in order to provide the legal, moral, and social support for projects to go ahead.

Romeo Saganash, NDP Member of Parliament for Abitibi - Baie James - Nunavik – Eeyou, a key drafter of the Declaration and author of Bill C-262 argues that discussion of the veto distracts from the main intent of FPIC and UNDRIP. He writes:

The Supreme Court of Canada has not defined what ‘veto’ means in the context of Indigenous Peoples’ rights and related Crown obligations. The Court did not use the term in the landmark 2014 Tsilhqot’in Nation decision that addressed Indigenous consent in detail. Neither is it in the Declaration. ”Veto” implies an absolute power, with no balancing of rights. Article 46 of the Declaration addresses the need to balance the specific collective and inherent rights of Indigenous Peoples with the human rights of all peoples. In contrast to ”veto,” the term ”consent,” in the Indigenous context, has been extensively elaborated in Canadian and international human rights law. And Canada cannot selectively ignore the rulings of its highest court; to do so is inconsistent with the principles of justice, equality, rule of law, and respect for human rights.

Recent Supreme Court of Canada cases including those relating to the Ktunaxa, Peel Watershed Chippewas of the Thames First Nation, and Tsilhqot'in Nation decisions demonstrate how governments have struggled to uphold the honour of the Crown and fulfill s. 35’s duty to consult. Bill C-262, by creating an action plan, timetables and progress reports may help in doing that. Commenting on the ability power of UNDRIP to influence duty to consult provisions, the Indigenous Bar Association wrote that “the Declaration is much more than a refinement of section 35 of the Constitution. It has the potential to be transformative of the relationship between Indigenous Peoples and Canada.”

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