Advancing reconciliation in the law no easy road
The UNDRIP Act has yet to transform Canadian law. Those who have gone to court over violations have encountered lacklustre ambivalence, ambiguity and flat-out denial their rights are even enforceable
The gap between a right and a remedy for its violation reveals a significant barrier to the UNDRIP Act’s success in advancing reconciliation in the law.
Former Justice Minister David Lametti told the Canadian Bar Association in a 2022 interview that he believed the recently passed United Nations Declaration on the Rights of Indigenous Peoples Act would impact law in the same way as the constitutional Canadian Charter of Rights and Freedoms.
He touted the Act as Canada’s legal framework for reconciliation, echoing conclusions from the Truth and Reconciliation Commission and the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The legislation requires Canada to align all federal laws with the UNDRIP, an international human rights treaty. Lawmakers tried to weave the UNDRIP into Canada’s legal order for years, but it wasn’t until 2021 that Parliament got a federal bill across the finish line.
Since its enactment, the UNDRIP Act has not transformed the law anywhere nearly as much as the Charter: Only a handful of federal laws purported to align with the declaration in the last months of 2024. Judicial treatment of the Act runs the gamut from referring to it as a mere aspiration to affirming it as a quasi-constitutional legal mandate.
The problem lies in the answer to the fundamental legal question: What is a right without a remedy? Canada has not provided any actual remedy for violating the UNDRIP Act despite repeated and widespread guidance from Indigenous advocates to do so. Instead, Canada’s UNDRIP Action Plan contains 181 measures to work towards eventually bringing federal laws into harmony with Indigenous Peoples’ inherent rights. None of the measures provide a reliable timeline, enforcement mechanism, or funding commitment. So far, Canada has even refused to amend the Interpretation Act to ensure courts interpret federal laws to uphold the declaration—the UNDRIP Act’s stated purpose.
There can be no meaningful reconciliation without an UNDRIP adjudicative body or other enforcement mechanism. First Nations, Métis, and Inuit people need the assurance that if a government law or policy conflicts with or violates one of their inherent rights, recourse is available. Otherwise, this legislation is another empty promise—the antithesis of reconciliation.
Contrast this with the Charter: When Canada repatriated the Constitution and enacted the Charter in 1982, Canadians could apply to any court with authority to order a remedy if the government (or an arm of it) violated their Charter-protected rights. As part of Canada’s constitution, the Charter changed the law forever because it allows Canadians, including vulnerable members of marginalized groups, to claim that a government law or policy is unconstitutional if it violates a fundamental right. If a court agrees, its judges can apply several remedies, including striking down the offending law and ordering the government to compensate victims.
Since 2021, individuals or communities that have gone to court over UNDRIP rights violations have been met with lacklustre ambivalence, ambiguity, and sometimes even flat-out denial that their UNDRIP rights are even enforceable.
When Lametti waxed poetic about a changing legal landscape under the UNDRIP Act, he described how every law would pass through an UNDRIP lens analysis, but he did not commit to a binding enforcement mechanism. When the Charter was enacted, Canada suspended its enforcement mechanisms for a few years to give the legislature and judiciary sufficient time to prepare for the new constitutional framework. With the UNDRIP Act, enforcement remains elusive.
Interpreting it through case law is a mixed bag, with no court decision affirming that the UNDRIP contains standalone, justiciable rights.
The Supreme Court of Canada’s Dickson ruling in early 2024 comes closest to stating that the UNDRIP Act is “a shield” protecting against Indigenous rights violations, but only when interpreted alongside the Constitution Act, 1982’s Section 35 and the Charter’s Section 25.
Alberta’s Court of Appeal stated that the UNDRIP is more of a “useful tool” helping foster reconciliation.
BC’s Superior Court said the UNDRIP Act provides “an opening for courts to incrementally start considering the principles and rights set out in UNDRIP, when appropriately raised in proceedings.”
One case making its way through the Court of Appeal of Quebec may give the legislation the legal teeth it needs to enact meaningful change by revising the test for determining a constitutionally protected Indigenous right. R v Montour involves criminal charges for bringing tobacco into Canada and avoiding taxes. In answering these charges, the Indigenous accused argued they held a right to trade tobacco and pointed to the UNDRIP Act to affirm their right and defend against the criminal charges.
The Quebec Superior Court acquitted the accused and leaned heavily on the UNDRIP in its reasoning, providing the kind of judicial guidance that proponents imagined when the UNDRIP Act was debated and enacted. It overturned long-held aboriginal rights law (known as the Van der Peet test) to set a new test for affirming Indigenous rights based on the UNDRIP. The ruling has been appealed, but no hearing date has been announced.
As 2024 turns into 2025, the gap between an Indigenous right and a remedy for its violation continues to widen. Canada’s narrow focus on its Action Plan enables it to dodge responsibility for its role in advancing reconciliation instead of responding to Indigenous advocates’ repeated and firm guidance to create an enforcement mechanism. This tunnel vision leads only one direction and casts serious doubt on its willingness to enact the meaningful change reconciliation requires.
