Why a UN declaration on Indigenous rights has struggled to become Canadian law

For nearly a decade, Canada refused to endorse the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The country, under former prime minister Stephen Harper, was one of four in the world to hold back — 144 other nations accepted it.

The UN declaration, which was eventually adopted by the Trudeau government in 2016, is still considered controversial in Canada. The main point of concern is a clause that calls for “free, prior and informed consent” of Indigenous communities in matters that impact them — pipeline projects, for example.

During the recent federal election campaign, the Liberals, Greens and NDP promised to enshrine UNDRIP into Canadian law, a move that would demand greater accountability from the country.

While the debate carries on federally, British Columbia is set to become the first province to make it law. The legislation sets a framework to align provincial laws with the standards of the UN declaration.

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Angela Mashford-Pringle, who works at the Waakebiness-Bryce Institute for Indigenous Health at the University of Toronto, told Global News she’s cautiously hopeful about UNDRIP becoming Canadian law.

“Even if it is enacted, I’m concerned that it could be just another lip service or way to pander to Indigenous Peoples,” Mashford-Pringle said.

She noted that Canada would still have to come to terms with issues such as systemic racism and the Indian Act.

But others are more optimistic about the impact UNDRIP could have on Canada’s relationships with Indigenous Peoples.

Canada’s complex history with UNDRIP

Brenda Gunn, an associate professor at the University of Manitoba, told Global News there hasn’t necessarily been ill intent in Canada when it comes to UNDRIP.

“Many people support Indigenous Peoples’ fundamental human rights — the principle and the idea,” Gunn said.

“What is far more challenging for people, including governments, are the changes necessary in how we make decisions.”

The Harper government supported the declaration in principle but took issue with its provisions around land claims and the degree of free and informed consent needed in resource development, among others.

Gunn said the conflict between principle and action is also evident in how UNDRIP has been handled by the Trudeau government.

Trudeau pledged during the 2015 election campaign that he would endorse the declaration. In May 2016, the Trudeau government officially adopted it, promising to implement it within Canada’s laws.

Not long after that, Trudeau approved a contentious expansion of the Trans Mountain pipeline and noted that Indigenous nations impacted by the decision don’t have veto power.

Misconceptions about the declaration

Part of the reason why UNDRIP hasn’t had widespread support in Canada, according to Gunn, is the misconceptions surrounding it.

For starters, Gunn said many don’t understand that UNDRIP is not a treaty — meaning countries don’t decide whether to sign on to it.

“The UN declaration became international law in 2007 when the majority of the General Assembly voted in favour of the declaration,” Gunn said.

“Once it passed in 2007, it became part of international law and thus was relevant in Canada,” she explained.

That means those who suggest the declaration isn’t applicable in Canada aren’t correct, Gunn said.

UNDRIP also reaffirms what the Supreme Court of Canada has already said — that governments must consult Indigenous groups prior to making decisions that might impact their lives.

The declaration is also in line with Section 35 of the Canadian Constitution, which states: “The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.”

Section 35 also says: “For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.”

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Lori Campbell, director of the Waterloo Indigenous Student Centre at St. Paul’s University College, added there is a fear that entrenching UNDRIP into Canadian law will take away rights from others.

“UNDRIP doesn’t take away human rights standards that the average citizens receive,” she told Global News. “It’s not an either-or situation.”

Campbell noted that giving Indigenous communities vetoes in matters that affect them won’t “grind the economy to a halt” but will require dialogue.

“Veto power doesn’t shut things down,” she said. “It may mean, at times, that an alternate route or way of moving forward has to be considered.”

Attempts to entrench UNDRIP into law

Despite the pledge, the Trudeau government did not introduce legislation on UNDRIP during its first mandate.

Instead, a private member’s bill was introduced by NDP MP Romeo Saganash. Bill C-262, which sought to “ensure that the laws of Canada are in harmony” with the declaration, passed in the House of Commons in May 2018.

However, the bill sat unhandled in the Senate after that. In June, when Parliament rose before the election, the bill effectively died.

Perry Bellegarde, national chief of the Assembly of First Nations, took aim at Conservative senators in June, saying “outrageous, shameful and undemocratic procedural tactics” killed the bill.

However, Tory senators such as Sen. Don Plett denied these allegations.

“It took the UN 24 years to pass UNDRIP and Senator Sinclair expects the Senate APPA committee to deal with it in less than 24 days,” Plett tweeted in June amid criticism.

Campbell noted that had Trudeau’s majority government pushed for the UNDRIP law, it would have been more likely to materialize. She added that such a move would be in line with the prime minister’s pledge to move toward reconciliation.

“It’s about Indigenous Canadians receiving the same basic human rights as everybody else in Canada,” she said.