tansi ninôtemik,
This month marks the 17th anniversary of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), an international human rights instrument developed over 25 years of negotiations between UN members and Indigenous groups across the globe. Designed to protect the collective rights of Indigenous peoples worldwide,[1] UNDRIP sets “minimum standards for the survival, dignity, and well-being of the Indigenous peoples.”[2] However, for countries like Canada, whose history is deeply rooted in colonialism, the adoption of UNDRIP has been met with hesitation, skepticism, and unhurried progress.
Given the dark history of colonialism, it was unsurprising that it was one of only four countries – out of 159 – to refuse to sign UNDRIP initially.[3] The central issue was the recognition of Indigenous autonomy and self-determination, fearing the undermining of state sovereignty. For Canada, this is particularly problematic in the context of land disputes and natural resource extraction.[4]
Canada began shifting its stance in March of 2010, cautiously expressing intentions “to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”[5] Yet, it took more than a decade for the government to formally incorporate UNDRIP into Canadian law with Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples, in 2021.[6] This significant delay reflects the ongoing hesitation and ambivalence towards Indigenous rights in Canada.
Despite the Bill’s mandate “that the Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP,”[7] skepticism remains. Before the Bill, the courts maintained that UNDRIP was a non-binding international Declaration, merely an “interpretive aid” and had little to no influence on Indigenous rights and title claims.[8] Even now, many fear that Bill C-15 is merely symbolic, especially given the legal team for the Attorney General stating that UNDRIP cannot “displace the Constitution or clear statutory language.”[9]
This position raises concerns that the Bill may not lead to substantive legal change in protecting Indigenous rights, especially in critical areas such as land claims. Albertan lawyer, Orlagh O’Kelly, said: “It’s disappointing… to see kind of an impoverished interpretation of what the new legislation implementing UNDRIP means in practice… People had high hopes for Bill C-15. Those who were cynical about it would say more or less, ‘I told you so.’”[10]
Critics argue that Bill C-15 fits a familiar pattern: Canada has a history of passing laws that appear to be landmark steps towards reconciliation, only to deliver little change in the direction of ending assimilation and colonization efforts. Centuries of broken treaties and rights violations have taught many Indigenous people to be wary of laws that promise change.[11]
Bill C-15, like UNDRIP itself, did not come about without resistance from all sides of the table. However, many remain cautiously hopeful that this could be the impetus for change. Only time will tell whether Canada is truly committed to ending the assimilation and colonial policies that have defined its history. At least for now, there continues to be a glaring gap between the Canadian government’s endorsement of UNDRIP and its actions toward meaningful reconciliation. As other countries continue to honour the implementation of UNDRIP, Canada continues to fall behind in keeping with international human rights standards. Canada must confront its past and take bolder steps towards upholding the rights of Indigenous peoples, or it will remain bound by the shame of its inaction.
[12]
Ekosi and until next time,
The ReconciliACTION Team
Citations
[1] This distinction is important because the Constitutions and Charters of many countries focus solely on individual rights and liberties rather than collective rights.
[2] United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, 61st Session, UN Doc A/RES/61/295 Article 43.
[3] The four non-signatories were Australia, New Zealand, the United States, and Canada. There were eleven abstentions (see United Nations, “United Nations Declaration on the Rights of Indigenous Peoples” (accessed 18 September 2024) online: <https://www.un.org/development/desa/indigenouspeoples/declaration-on-%20the-rights-of-indigenous-peoples.html>).
[4] Erin Hanson, UN Declaration on the Rights of Indigenous Peoples, Indigenous Foundations, online: <indigenousfoundations.arts.ubc.ca>.
[5] Ibid.
[6] Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2nd Ses, 43rd Parl., 2021.
[7] Ibid at Summary.
[8] Chambaud v Dene Tha’ First Nation, 2022 FC 970 (Memorandum of Fact and Law of the Respondent, The Attorney General of Canada, Court No. T-1714-21), at para 37, online: <https://www.aptnnews.ca/wp-content/uploads/2022/05/Memo-of-Argument-T-1714-2126.pdf>, at para 37; see also Supra note 4.
[9] Ibid.
[10] Brett Forester, “Feds call UNDRIP an ‘interpretive aid only’ in election delay legal battle for First Nation in Alberta” (3 May 2022) online: <https://www.aptnnews.ca/national-news/feds-call-undrip-interpretive-aid-only-alberta-first-nation-election/>.
[11] Karine Duhamel, “The United Nations Declaration on the Rights of Indigenous Peoples: the struggle to recognize Indigenous rights in Canadian law” (8 September 2022) online: <https://humanrights.ca/story/the-united-nations-declaration-on-the-rights-of-indigenous-peoples>; see also André Bear, “Whether or not you support Bill C-15, Canada passing it would be an important time in our history” (4 May 2021) online: <https://www.cbc.ca/news/canada/saskatchewan/opinion-andre-bear-bill-c-15-1.6009060>.
[12] “This is what we fought for: An open letter in support of #UNDRIP” (10 February 2021) Kairos Canada, online: <kairoscanada.org> .
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