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Canada and UNDRIP: An Unfulfilled Responsibility

By Mar 24, 2017

Image credits: Government of Canada.

In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 144 states voted in favor, 11 abstained and four voted against. The latter four were Australia, New Zealand, the United States and Canada. Since then, numerous attempts have been made by Canadian parliamentarians to have the country adopt the Declaration directly into Canadian law. Five different private member bills have been introduced in the House of Commons, each one entitled “An Act to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.” The first four were either defeated or were still on the table when the parliamentary session expired. The fifth, Bill C-262, sponsored by New Democratic party (NDP) MP Romeo Saganash, made it through the first reading and is currently in the revision period.

There is no doubt that a change is needed to the constitutional framework that administers the relationship between Canada’s Aboriginal peoples and the country’s governments. UNDRIP provides a strong foundation for increased Aboriginal rights in Canada. It proposes, amongst other things, increased powers of self-determination and a definitive veto against development projects on Aboriginal land.  Article 43 of the Declaration established that “the rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” The reality is that current legislation in Canada is significantly weaker than UNDRIP in some very important ways.

There is no doubt that a change is needed to the constitutional framework that administers the relationship between Canada’s Aboriginal peoples and the country’s governments.

The most important, and enticing, aspect of UNDRIP is its repeated use of “free, prior and informed consent.” Article 32.2 of the Decleration reads: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

In 2005, the United Nations Permanent Forum on Indigenous Issues provided a four-pronged definition of free, prior and informed consent that is now commonly accepted by the United Nations body. It reads: “In relation to development projects affecting indigenous peoples: 1) Indigenous peoples are not coerced, pressured or intimidated in their choices of development; 2) Their consent is sought and freely given prior to the start of development activities; 3) Indigenous Peoples have full information about the scope and impacts of the proposed development activities on their lands, resources and wellbeing; 4) Their choices to give or withhold consent over developments affecting them is respected and upheld.”  Therefore, the Declaration has established that Indigenous peoples have a veto when it comes to development activities on their land and firmly states that their decision must be respected.

In recent years—with the development of Canada’s oil sands and the construction of related pipelines—the issue of Aboriginal consent for projects on their lands has become especially important. In September of 2016, 50 Aboriginal groups in North America signed “The Treaty Alliance Against Tar Sands Expansion,” formally announcing their opposition to new pipeline projects in Canada and the United States. A specific source of opposition is directed towards the Kinder Morgan pipeline project in British Columbia, which was approved by the federal government late last year. Multiple legal challenges have been launched against the government and the National Energy Board for their approval of that pipeline. It is expected that when new projects, like TransCanada’s Keystone XL and Energy East pipelines, are likely approved the Canadian government in the coming years, their constitutionality will be challenged in court.

The Declaration has established that Indigenous peoples have a veto when it comes to development activities on their land and firmly states that their decision must be respected.

Support for UNDRIP in Canada has come from opposition parties in Parliament, Indigenous advocacy groups and the United Nations. In a 2014 report, James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous peoples, signalled a crisis in Canada and suggested that UNDRIP was necessary to address some of the many issues facing Indigenous Canadians. Speaking in the House in April, Saganash said this about Bill C-262: “If this bill is adopted, that would provide the legislative framework for a national reconciliation that is long overdue in this country. This would entail a collaborative process to ensure that federal laws are consistent with the declaration, and a national plan of action.” First Nations National Chief Perry Bellegarde has urged chiefs to explore “all options” when pressing the Canadian government to adopt the Declaration.

At the UN General Assembly in 2007, Canadian Ambassador John Mcnee explained the reasoning for the country’s opposition to the Declaration: “Canada has significant concerns with respect to the wording of the current text, including the provisions on lands, territories and resources; on free, prior and informed consent when used as a veto [and on] on self-government...” After originally opposing the Declaration, the Conservative government endorsed it in 2010, but did not adopt it. In 2012, the Truth and Reconciliation Commission of Canada (TRC), which was tasked with investigating the legacy of residential schools in the country, published an initial report that called on Canada to fully adopt the Declaration. Interestingly, while in opposition, the Liberal party was in favor of a full implementation of UNDRIP. While debating Bill C-641—the fourth of five private member bills calling for an adoption of UNDRIP into Canadian law—then Liberal critic for Indian Affairs and Northern Development, Carolyn Bennett, stated: “There is no doubt that the federal government is responsible for healing relations with the first nations, Inuit and Métis people of Canada, and those relations must be based on the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.” She called on the government to implement the Declaration and later added: “The practical implications of the concept of free, prior and informed consent are not dissimilar to the legal duties already imposed on governments by treaties and now enshrined in our Constitution.”

While in opposition, the Liberal party was in favor of a full implementation of UNDRIP. However, in July, the Minister of Justice announced that it was “unworkable” directly into Canadian law.

After being elected in 2015, the Liberal government signalled their intention to adopt the Declaration directly into Canadian law and officially removed their objector status at the United Nations in May of 2016. However, in July, the Minister of Justice, Jody Wilson-Raybould, announced that while the government supported the Declaration “without reservation,” it was “unworkable” directly into Canadian law. She instead announced that the government would pursue a legislative agenda to achieve the ends of the Declaration.

Ottawa has repeatedly referred to the Canadian Constitution as a major obstacle to the full adoption of UNDRIP. Before going any further, it’s important to fully understand the constitutional laws currently in place that dictate the responsibilities of the Canadian government to the Indigenous peoples of Canada. These can be found in Section 91.24 of the British North America Act (1867) and Sections 25 and 35 of the Canadian Charter of Rights and Freedoms (1982). 91.24 reads that “Indians, and Lands Reserved for Indians” fall under the jurisdiction of the federal government. Section 25 of the Charter explains that the government will not restrict any Aboriginal rights, treaty or otherwise, that were acquired prior to the Royal Proclamation of 1763 or as a result of land claim agreements. Section 35 (1) of the Charter declares that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Historically, the government’s obligations to Aboriginals in Canada were declared in treaties dating back to just before and after confederation. Subsequent governments have argued that Section 35 administers their relationship with Aboriginal peoples in the country, thus making UNDRIP unnecessary. Wilson-Raybould and Bennett, now the Minister of Indigenous and Northern Affairs (INAC), have argued that UNDRIP “breathes life” into Section 35, but does not take precedence over it.

Section 35 includes a duty to consult Indigenous peoples about development on their lands, but does not require Aboriginal consent before decisions can be made. In Delgamuukw v British Columbia (1997), the Supreme Court of Canada established that Aboriginal title could exist on lands occupied before sovereignty but also affirmed that the Crown could infringe on the title in the case of a “legislative objective that is compelling and substantial,” as decided in R. v. Sparrow (1990). In Haida Nation v. British Columbia (2004), it was established that the government had a duty to consult First Nations on lands in which the latter may have claims. This duty lies in the honour of the Crown and its historical obligations to Indigenous peoples. This case suggested that the Crown’s historical obligations did not just include those stated in the treaties, but also those established in the Royal Proclamation regarding unseeded land. In Tsilhqot’in Nation v. British Columbia (2014), the Court, for the first time, declared Aboriginal title to land off-reserve. The Court decided that title existed if it could be proven that the Aboriginal group used the land regularly and exclusively before sovereignty. Aboriginal title includes the right to determine “how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” However, the Crown can override Aboriginal claim to title if it meets the following three criterial: “1) that it discharged its procedural duty to consult and accommodate; 2) that its actions were backed by a compelling and substantial objective; 3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” A current case before the Supreme Court, Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al., is expected to provide further clarification on the duty to consult.

The government must inform Aboriginal communities of projects that might affect them and seriously consider their responses. However, it is completely constitutional for the government to go ahead with a development, even if there is opposition from Indigenous groups.

Under current legislation, the federal and provincial governments must only seek consent from implicated Aboriginal groups when their territory or a natural resource within it is concerned. They must also seek consent with the implicated Aboriginal group when a decision has the potential to infringe on their treaty or constitutional rights. This means that the government must inform Aboriginal communities of projects that might affect them and seriously consider their responses. However, it is completely constitutional for the government to go ahead with a development, even if there is opposition from Indigenous groups, if it meets the criteria set out in Sparrow and Tsilhqot’in. Essentially, the government can infringe on Aboriginal title if they can justify the necessity of doing so. Of course, under UNDRIP, Aboriginal right to land cannot be infringed upon without consent. Article 26.1 of the Declaration establishes that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired,” but includes no provisions for when this right can be infringed upon.

According to Joe Wild, senior assistant deputy minister for treaties and aboriginal government at Indigenous and Norther Affairs Canada, “the basic principle that is lying underneath the UN declaration…is that we should recognize and reconcile the preexisting rights and sovereignty that indigenous nations enjoyed prior to Crown sovereignty being declared.” In the opinion of scholar D.N. Sprague, the “Royal Proclamation of 1763 should be read in conjunction with every subsequent treaty because it affirmed Indigenous rights to lands not ceded and did not provide any authority on the part of the Crown or its settlers to interfere with such land without consent.”

In 1995, the Canadian government recognized an inherent right to Aboriginal self-government existing within Section 35 of the Charter. However, Aboriginal groups do not actually exercise a full right to self-determination; they are still subordinate to the federal government. In the Canadian context, an inherent right to self-government for Indigenous peoples is interpreted solely as the right to be included in consultations, not the right of consent.

For too long, Aboriginal Canadians have been ignored and discriminated against by the federal government. UNDRIP would go a long way towards redressing this unfortunate legacy, as it very explicitly establishes Indigenous right to real, and meaningful, self-determination. Article 3 of UNDRIP reads: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

If the federal government is serious about reconciling the pre-existing rights and sovereignty that Indigenous peoples enjoyed prior to Crown sovereignty being declared, it must move to recognize the inherent Aboriginal right to self-determination, which includes the right to consent, or not, to development projects on their land. A full implementation of UNDRIP into Canadian law would signal a drastic shift in the constitutional arrangements governing this country. However, as recently as December of 2016, Prime Minister Justin Trudeau, in response to a request by Bellegarde to reopen constitutional negotiations regarding Section 35, stated that he had no intention of doing so, calling the issue “Constitutional squabbles.”

The federal government must adopt UNDRIP directly into law to ensure that the country at least meets the international community’s minimal standards. Canada has an obligation to its First peoples that predates the Constitution and must do all it can to respect that if it seriously wants to start repairing centuries of oppression and building a nation-to-nation relationship. If the federal government proves not willing to significantly expand the existing rights framework for the country’s Aboriginal peoples, then it will be hard to argue that they are on any sort of path towards reconciliation.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of the McGill Left Review or its editors.

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