Reconciliation

Mondial Fall 2021: UNDRIP: Will it be beneficial to Indigenous Peoples in Canada

By Bill Pearce

The United Nations Declaration of the Rights on Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on September 13th 2007 with 144 states in favour and 4 votes against (Australia, Canada, New Zealand, and the United States). In November 2010, the Harper government endorsed the Declaration on the understanding it was an aspirational document that was not legally binding and without effect on customary law. In 2016 Minister Carolyn Bennett announced Canada was a full supporter of the Declaration without qualification. Bill C-15, being the ‘Act Respecting UNDRIP’, became law on June 21st, 2021.

Bill C-15 adopts the model created by British Columbia when it passed legislation on the same subject on November 28th 2019. In both cases the legislation affirms the application of the Declaration to the laws of Canada and BC by providing a requirement for the respective governments to take all measures necessary to ensure laws are consistent with the Declaration, with obligations to prepare Action Plans, and to make annual reports to the Legislative Assembly of BC and to Parliament on the progress made to implement the measures in the respective Action Plans, a process which is expected to take many years to establish.

While the respective governments have assured the public the Declaration doesn’t create any new rights and merely serves to provide a process to ensure laws are consistent with existing rights, a closer look shows that the implications are not as benign as the respective governments would like us to believe.

There are two areas of particular concern. One relates to the duty to consult and the need to obtain from Indigenous peoples their ‘free, prior, and informed consent (FPIC) before implementing legislative or administrative measures that may affect them (Art. 19) or before approving any project affecting their lands, territories or other resources (Article 32 para.2). Article 19 will require FPIC to apply to the legislative process.

The Supreme Court of Canada has ruled in the Haida case that the duty to consult requires meaningful consultation but that does not give Indigenous peoples a right to veto any project affecting their traditional territory. Virtually every square inch of land in Canada is claimed to be the traditional territory of one or more First Nations. If it turns out that FPIC means what it says it could have enormous implications and a chilling effect on any proposed resource development in the country.

The second area of concern relates to Article 3 which provides that Indigenous people have the right to self-determination by virtue of which they have the right to “freely determine their political status and freely pursue their economic, social and cultural development.” Until recently this right was not accepted by Canadian governments.

The October 1996 Report of the Royal Commission on Aboriginal Peoples provides the source of this right to self-governance, postulating that the right of self-determination is inherent, exercised for centuries before the arrival of European settlers and was affirmed by Canada when our Constitution was amended in 1982 to include our affirmation of “existing aboriginal and treaty rights” in §35. What is important about Canada’s affirmation in s4 of Bill C-15 is that UNDRIP has application in Canadian law in that it effectively forecloses any arguments that §35 of the Constitution Act does not enshrine the right of self-determination.

To better understand what this self-government might look like, it is instructive to look at a recent treaty that was entered into with the Tla’amin First Nation. It provides a land base of 8322 hectares of land including the timber and mineral rights and right to the marine resources in the area. It also acknowledges the Tla’amin right to make their own laws respecting the land and resources and, for the most part, on reserve activities of their people.

And to enforce the laws their government is empowered to create offences and sanctions and laws respecting the qualification, training and powers of enforcement officers who will enforce the laws with prosecutions to be heard by the Provincial Court. All of this is to be done by a people who have had no experience in any of these fields except to a limited degree in municipal matters. The point being it will take a very long time for this First Nation to develop a civil service with the level of training and competence of non-Indigenous governments.

Thus, if down the road after the Tla’amin FN assume jurisdiction over education and protection of children it turns out years later that their children who were in need of protection were not being protected and their children were not beginning to meet provincial educational standards there is no mechanism which permits the federal or provincial government to take back its former jurisdiction over such matters and leaves little practical mechanisms

in place for the parents or representatives of such children to remedy the deficiency.

Who is going to pay for this new experiment in self-governance? Article 39 of the Declaration states Indigenous peoples have “the right to have access to financial and technical assistance from States…for the enjoyment of the rights contained in this Declaration”.

I have identified a number of potential problems with the implementation of UNDRIP. At this stage, it is difficult to forecast the success or otherwise of this project. If Indigenous governments fail to deliver on education and protection of children the experiment in self-governance will be a failure and Indigenous children, in particular, will pay the price. We all pray that won’t happen but if it does a solution will not be possible absent a change in our Constitution.

I believe most Canadians are supportive of reconciliation, but if it turns out that adherence to UNDRIP principles is impeding economic developments or is not achieving its purposes or it is perceived as being too expensive to operate, or a combination of the foregoing, it could create a backlash and worsen relationships. Again, getting things back on track will be a difficult task. The application of UNDRIP to our laws will require both sides to work together more than ever to make this grand project a success.

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