Why the UN’s declaration on Indigenous rights has been slow to implement in Canada

While a decision on Indigenous participation at the United Nations General Assembly was postponed in Geneva [in July 2017] , some groups in Canada point to a number of ways to move forward on the issue at home.

Independent Indigenous participation at the United Nations General Assembly — a critical application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — was thrown into uncertainty [earlier in July 2017] after several member states insisted they should be the ones to decide who is “Indigenous.”

“Those states — India, China, Russia, Indonesia, Bangladesh, to name a few — are deeply concerned about this because they each have a group they don’t want to have an independent voice on the world stage,” Sheryl Lightfoot, a Vancouver-based expert on global Indigenous rights, told OpenCanada from the UN’s annual Expert Mechanism on the Rights of Indigenous Peoples held in Geneva [in July 2017].

Speaking on behalf of a coalition of Canadian Indigenous and human rights groups — including Amnesty International, the B.C. Assembly of First Nations and the Grand Council of the Crees — Grand Chief Wilton Littlechild chided the opposing bloc for not providing any legal justification for their decision.

“There continues to be an erroneous presumption, by some states, that they each can determine which peoples are Indigenous within their respective states,” Littlechild told the session during its final days.

Opposition to Indigenous enhanced participation contradicts several international agreements, including UNDRIP.

“It’s a challenge to the right of self-identification,” said Paul Joffe, an attorney who represented the Grand Council of the Crees (Eeyou Istchee) in Geneva. ”That’s the way it’s been throughout history: you deny someone their status in order to deny them their rights.”

As implementation of UNDRIP faces a backlash at the international level, Canada has also been struggling to find its footing with what it means at home. And while various groups have been asking for movement on the file since its adoption in 2007, wider awareness of the declaration in Canada has only come about with the focus on reconciliation in recent years.

With that in mind, here’s a primer on what you need to know.

After over 20 years of negotiation, the UN adopted the landmark declaration in 2007. The document spells out the minimum individual and collective rights of Indigenous people and covers everything from access to natural resources and land, to self-government and the right to give free, prior and informed consent on any decisions that affect Indigenous lives.

The declaration draws on decades of international human rights law and establishes that the inherent rights of Indigenous peoples are human rights. While the UN declaration doesn’t exist in a legal vacuum — it draws on human rights covenants signed back in the 1970s — it does chart an important Indigenous context for human rights, said Joffe.

When Canada’s Truth and Reconciliation Commission called on all levels of government to implement the declaration in 2014, it sent out a clear message that it should act as a framework for reconciliation with Indigenous people in Canada.

Under the Harper government, Ottawa initially rejected the UN declaration along with Australia, New Zealand and the United States. By 2010, the federal government had endorsed UNDRIP as “aspirational” but failed to implement its recommendations.

While Canadian courts have increasingly used international law to interpret and broaden domestic law — including the Charter of Rights and Freedoms — the Harper government said it feared the declaration would lead to an Indigenous “veto” incompatible with Canada’s Constitution and treaty obligations.

While mention of a “veto” does not appear in the declaration, the controversy swirls around the interpretation of “free, prior and informed consent.”

“The obsession with the veto really misses the forest for the trees,” said Brenda Gunn, a fellow with the Centre for International Governance Innovation and a leading Canadian legal expert who has worked to interpret the UN declaration for government, business and Indigenous peoples.

“The government should never be approaching Indigenous peoples with a yes or no question. It’s actually about building new relationships: having Indigenous peoples involved at the very beginning in any project or process where their rights might be affected and sitting there as true partners in helping guide the decision-making process where their views and concerns are heard, taken into account and addressed.”

When the Trudeau government was elected in late 2015, it vowed to reset its relationship with Indigenous people. The government expressed some initial hesitation in backing the declaration. Publicly, that position has changed: Indigenous Affairs Minister Carolyn Bennett announced at the UN in April that the government was officially retracting Canada’s objections to the parts of the declaration that spelled out the right to free, prior and informed consent.

But behind closed doors, many have questioned whether the government is genuine in its commitment to the declaration. In May, Quebec MP Romeo Saganash revealed an email exchange in which Indigenous Affairs deputy minister Hélène Laurendeau told her senior advisor that the government “may not consult specifically on UNDRIP.”

Saganash berated the Liberal government as a “double-headed beast speaking lies out of one mouth and their sleazy intentions out of the other.”

But Lightfoot said the internal dissent should come as no surprise. “The civil service wants to maintain status quo. To them, any sort of big change sounds like a threat. And what UNDRIP does is ask for a whole lot of change. Essentially, it’s asking for a decolonization of the entire system. So there’s some pushback obviously,” she said.

That’s a big problem for the Trudeau government, said Joffe, which after nine years of conservative rule, is facing a bureaucracy instilled with the culture of the former government.

“The bureaucracy is the same bureaucracy. It might change gradually, but it’s one that gives the same Harper perspectives to a large degree,” he said. “They resist government policy.”

Reconciliation with Indigenous people is not something that can be wrapped up in a generation, let alone a single term of government. Without a legislative framework for collaboration, any change in government could bring everything to a halt.

That’s why, in April, Saganash introduced Bill C-262, legislation that is meant to harmonize the UNDRIP with Canadian law. Parliament hasn’t voted on the bill, and earlier this month Trudeau avoided giving it his full support, citing concerns that adopting the declaration word for word would ignore existing Canadian law.

“Indigenous organizations want to hold their nose to the fire a little bit because it’s a lot of talk and not a lot of action,” said Lightfoot. “In law and policy, not much has changed. The speeches are very nice. Thank you. The meetings are very nice. Thank you. But there needs to be movement on a national action plan.”

Gunn is pushing for more radical action through the courts, where she said over 25 years of decisions have limited the scope of section 35 of the 1982 Constitution Act. That’s the part that provides protection to Indigenous treaty rights, including rights to natural resources, land and self-government.

“Implementing the UN declaration is not about fitting the square peg of the UN declaration and all the rights into the existing round hole of section 35 — carving it away to fit in,” she said. “It can’t just be about maintaining the status quo.”

“It has to be about starting a new relationship and actually carving space out within the existing legal landscape to recognize indigenous rights understood according to their own legal traditions.”

For Gunn, implementing the UN declaration will require setting aside some of the earlier court decisions and dreaming much bigger. In a recent report, Gunn and her co-authors lay out what that dream might look like under an UNDRIP framework. By braiding international, Canadian and Indigenous legal systems, Gunn argues that we have a chance to “reset the current relationship between Indigenous peoples and the Crown, moving it toward a nation-to-nation relationship.”

Radically reinterpreting existing law isn’t without precedent. In 2013, the Supreme Court struck down several prostitution laws, and in 2015 the judges overturned laws that prohibited physician-assisted death.

“We’re at a really exciting time now where we have political will to start implementing the UN declaration,” said Gunn.

As the UN session wrapped up in Geneva [earlier in July 2017], enhanced Indigenous participation was left in limbo — closed door negotiations are expected to continue at UN headquarters in New York, with a “non-resolution” expected to go to the General Assembly in September.

“That is very disappointing for those that wanted action on this now,” said Lightfoot, who said enhanced participation won’t likely have a chance of passing at the General Assembly for a couple of years. “The upside is that the bloc of states was not able to diminish existing Indigenous rights in the process.”

Speaking on behalf of the coalition of Indigenous and human rights groups, Kenneth Deer challenged the Canadian government to live up to its promises and raised the curtain on the agenda for next year’s session in Geneva.

“Major development projects continue to be approved without meeting the global criteria for sustainable development or the standard of free, prior and informed consent,” said Deer.

Until that next meeting, Indigenous groups continue to draw on UNDRIP to negotiate reconciliation here in Canada.

This article was first published in July 2017 with OpenCanada.org