UNDRIP needs more than intent

British Columbia was the first, in 2019, to enshrine the United Nations Declaration on the Rights of Indigenous Peoples into law with its Declaration on the Rights of Indigenous Peoples Act, or DRIPA. Then, in December 2020, the federal government tabled Bill C-15, in which it commits to setting up a framework to implement UNDRIP. Neither government, however, have yet produced an action plan.

In no other area would this be more important during a pandemic than in health care, particularly at a time when trust among Indigenous people in our system has hit an all-time low.

The death of Joyce Echaquan in a Quebec hospital, after filming staff abusing her verbally, has prompted governments across Canada to redouble their efforts to end systemic biases and anti-Indigenous racism in health care.

“Racism is not an accident,” federal Health Minister Patty Hajdu said in October. “The system is not broken. It was created this way. And the people in the system are incentivized to stay the same.”

Her remarks came in response to the tragedy and on the heels of an urgent cross-country meeting with 400 participants from governments and health systems to chart a path to ending systemic biases and racism, and to encourage them to declare commitments publicly by early 2021.

As Hajdu noted, Echaquan’s death was hardly an isolated incident. In British Columbia, Mary Ellen Turpel-Lafond, an Indigenous lawyer, judge and law professor, was tasked with reporting on alleged incidents of Indigenous-specific racism in the province’s health care system. Her November 2020 report, In Plain Sight, gives voice to thousands of individuals who have experienced or witnessed systemic biases and racism against Indigenous people.

Among them, there was a woman who, feeling nauseous after surgery started dry heaving, was told by a nurse she was suffering from withdrawal “from all the alcohol you people drink.” Another incident involved a mother who called emergency after her 11-year-old epileptic daughter had a seizure. She was asked, repeatedly by one doctor and several nurses, whether the child had consumed drugs or alcohol. There was also the story of a man who, presumed to be drunk, was discharged from hospital, only to walk home alone without getting his head injury looked after. He now says he avoids hospitals at all costs because “I feel unsafe and feel like they won’t bother treating me.”

UNDRIP lists fundamental human rights for Indigenous peoples, such as the right to self-determination, to maintain their institutions and not be forced into assimilation. Also expressed in the Declaration is the right to health: “Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health,” reads art. 24(2). They also have the right, following the principles of UNDRIP, to maintain traditional health practices and ought to be able to exercise all their rights free from any discrimination.

None of this should be controversial. Yet legislation to implement UNDRIP often leads to animated debates about how, specifically, our governments should address anti-Indigenous racism. How do we ensure shared decision-making processes are fair to everyone? What kind of funding is necessary, and where should it come from, given that health care is primarily an area of provincial jurisdiction whereas Indigenous affairs is primarily federal?

A national reckoning

Experts familiar with the subject say it will take more than a UN Declaration to meaningfully address racism against Indigenous people. “My issue with UNDRIP, C-15 and DRIPA,” says Sharon Singh of Bennett Jones LLP in British Columbia is “what does this act get you that the government could not already do?” Singh co-authored a comprehensive review of DRIPA. Keith Bergner of Lawson Lundell LLP voices a similar sentiment about C-15 and what it might mean for Canada. The bill requires an action plan that must include measures to combat prejudice and eliminate all forms of violence and discrimination. “It would be open to the federal government to formulate measures in an action plan to address anti-Indigenous racism generally,” Bergner says. “However, it is also open to the federal government to take such steps now, without passing legislation and/or outlining such measures in an action plan.”

Turpel-Lafond, whose review began shortly after disturbing stories of anti-Indigenous racism had surfaced in the media, has a different take. Many people assumed the incidents prompted the review, she says. But “the structural and systemic shift that made it possible to do it effectively was DRIPA.” UNDRIP, she adds, is “a new lens, like putting on a new pair of glasses, you suddenly see things differently."

For starters, there was an unprecedented level of cooperation from everyone in the health system. “Other provinces will say to me, ‘we’d like to look at racism in our system,’ and I’ll have to say it’s likely that you need tools and if you don’t have these tools, it will probably end up in a bunch of court fights. Doctors won’t share files, and hospitals won’t share files, and you won’t have the conditions to do the work if you can’t shift fundamentally your lens,” she says.

Singh agrees that DRIPA can serve as a lens that fundamentally changes how the government tries to align actions with its commitment to implement UNDRIP. But she worries that “without more teeth to it, it’s insufficient.”

Slow, painful process

Writing in the Globe and Mail in January 2021, Mary Ellen Turpel-Lafond said her review had been accepted by the provincial government, which “initiated serious efforts to address racism, improve access and quality of care, and ensure there is cultural safety for Indigenous people.”

But the broad consensus on the rights contained in UNDRIP does not end the debate on how best to implement the Declaration through legislation. As Kevin O’Callaghan and Madison Grist of Fasken in Vancouver pointed out in 2019, there are questions about how shared decision-making will work -- something that MLA Ellis Ross, former Chief Councillor for the Haisla Nation Council, has raised.

“It’s going to be a slow and painful process,” Singh cautions. “We have to give [the government] due credit that it’s been trying to get it right. But it will get it wrong because the processes have not yet been ingrained. But the intent is there.”