Is the UN Declaration dead or more to the point – has it ever been alive?

“The United Nations Declaration on the Rights of Indigenous Peoples” (UNDRIP) is an international instrument adopted by the United Nations on September 13, 2007, to enshrine the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” All four countries initially opposed (Canada, United States, Australia and New Zealand) now support it. No state in the world is formally opposed.

“No fewer than nine UNDRIP articles concern rights that relate to Indigenous peoples’ lands, waters, territories or resources1”. The entrenched position of all levels of Canadian government is this land is our land and not yours. The federal government’s view is that UNDRIP can only be implemented under Section 35 of the Constitution Act, 1982 – that is, strictly under Canadian law while avoiding Indigenous laws and traditions as much as possible even though they are recognized under the Canadian legal system2. The nine provinces opposed to UNDRIP for the most part do not agree with the UNDRIP concept of “Free, Prior and Informed Consent” or believe existing legal frameworks are sufficient.

Is it any wonder that governments and industry rely so heavily on courts – established to enforce colonial legal concepts and rights and to issue injunctions to override legally recognized treaty rights – to allow industry unfettered access to Indigenous lands again and again and again. The refusal of the Supreme Court of Canada to hear the appeal by the Tsleil-Waututh and Squamish First Nations, and The Ts’elxwéyeqw and Coldwater Indian Band against the approval of Trans Mountain pipeline cleared the way for construction despite Indigenous protests. With no explanation from the court, the decision appears to uphold the crown’s colonial extinguishment of Indigenous title in favour of the crown’s “ownership” of natural resources even on Indigenous-owned land. Ditto for the Wet’suwet’en opposition to Coastal GasLink.

Economic development for governments and profits for business drive their investment strategies for the natural resource industry. Indigenous nations in this scenario are an impediment who slow down their respective agendas and so Indigenous people must be “managed” at best or “disenfranchised” at worst. Indigenous people are told that Section 35 of the Constitution Act already states “The existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed”. “You can rely on the Canadian court system for redress”. What happens when they do? 3

Ouch!

The central – and so far intractable – problem behind the ongoing conflicts between governments and Indigenous people is the Indigenous relationship to their land. As noted in a previous Indigenous Watchdog post Wet’suwet’en and Coastal Gas Link (Feb. 24, 2020) the conflict between the Wet’suwet’en hereditary chiefs and Coastal GasLink and the governments of Canada and BC rests on two fundamental issues:

  • Recognition of sovereignty: what constitutes an independent sovereign nation?
  • Recognition of legal jurisdiction: whose laws prevail?

Governments founded on colonial concepts such as Doctrine of Discovery and terra nullius (land belonging to no one) need to discount and de-legitimize Indigenous sovereignty to maintain illegitimate “ownership” of the land – and even more important, the economic benefits. Is it any wonder that “Nation-to-Nation” treaties between the Crown and Indigenous groups – including BC where no treaties were ever signed nor the land ever ceded – have been continuously broken and Indigenous people marginalized further and further, all in the pursuit of creating wealth for the Canadian people. In that context, First Nations peoples receive significantly less government funding for programs and services per capita ($8,400) when compared with Canadians who receive $18,178 per capita in federal, provincial and municipal spending. 4

UNDRIP’s “Free, Prior and Informed Consent” and Section 35’s “Duty to Consult” are most often contested when governments want to proceed with large infrastructure projects – oil pipelines, mining, logging, hydro-electric etc. – on “crown” land even when legally recognized as Indigenous. No wonder their reluctance to recognize and affirm Indigenous laws and legal traditions whose definition of “ownership” is alien to the notion of private property to be developed regardless of its impact on the environment. How often have governments used COVID-19 as a pretext to abandon environmental monitoring and reporting and/or the “Duty to Consult” Indigenous communities in BC, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Newfoundland and Labrador. 5

No wonder that governments and business decry what they perceive as an “Indigenous veto” over natural resource projects as if the national economy will collapse and foreign investment dollars will flee the country. In reality, Natural Resources contribute only 10.1% of Canada’s GDP and only 3 provinces have a GDP contribution to the provincial economy of more than 25%: Newfoundland and Labrador, Saskatchewan and Alberta – all opposed to UNDRIP. The Northwest Territories and Nunavut the other two with GDP contributions over 20% are both in favor of UNDRIP and both have majority Indigenous populations: NWT = 50.7% and Nunavut = 85.9% as per the 2016 census. The other reality is that numerous Indigenous leaders including Murray Sinclair, former Chief Commissioner of the TRC insist that no veto exists6

If the veto really means negotiation and redress what are governments and business really afraid of? Where do the federal, provincial and territory governments stand on “fully adopting and implementing the United Nations Declaration”? Aside from the nationally recognized and accepted and unanimous agreement on eliminating the socio-economic gaps in health, justice, education, jobs, there are two ways to answer this question.

First, what is the current status of the 10 TRC Calls to Action that deal specifically with the United Nations Declaration and/or that also address Indigenous laws and Indigenous and Treaty Rights. More than 5 years after the Truth and Reconciliation Commission issued their Summary Report and 94 Calls to Action on June 2, 2015, ALL 10 are either “Not Started” or “Stalled”:

UNDRIP related TRC Calls to Action
NOT STARTED
C2A # 26Review and amend respective Statutes of Limitation
C2A # 42Recognize and implement Aboriginal Justice Systems
C2A # 44Develop national action plan and strategies to achieve UNDRIP goals
C2A # 45 Develop a Royal Proclamation and Covenant of Reconciliation
C2A # 47Repudiate Doctrine of Discovery and terra nullius
C2A # 51Publish legal opinions on Aboriginal and Treaty Rights
C2A # 52 Adopt “acceptance & burden of proof principles on Aboriginal title claims
STALLED
C2A # 43Adopt and implement UNDRIP as framework for reconciliation
C2A # 46Develop & sign a Covenant of Reconciliation to advance reconciliation
C2A # 92Call upon the corporate sector to adopt UNDRIP as a reconciliation framework

Second, what are the federal, provincial and territory government positions on Call to Action # 43, “Canadian Government and the United Nations Declaration on the Rights of Indigenous Peoples?”

In Favour of UNDRIP
CanadaBill C-262 “The UN Declaration” died in the Senate. New Bill pending fall 2020
BCBill 41-2019 “Declaration on the Rights of Indigenous Peoples Act” brought into force Nov. 27, 2019
NWTCommitted to implementing UNDRIP within the constitutional framework of Canada as a legislative priority (Oct. 25, 2019)
Yukon 2019 Statement of Support reaffirmed in May 2014 and Jan. 2016 for the declaration that is not fully consistent with already implemented Final and Self-government Agreements, no initiatives are planned or underway.

Nunavut
Support UNDRIP “that respects Inuit rights under the Canadian Constitution and the Nunavut Land Claims Agreement
Opposed to UNDRIP
AlbertaOpposed
SaskatchewanRelies on “2010 First Nations and Métis Consultation Policy Framework
ManitobaOpposed
OntarioNo commitment from Premier Ford to support Bill 76 “The United Nations Declaration on the Rights of Indigenous Peoples Act. 2019”. Now in Committee.
QuebecOpposed
Nfld. and LabradorRely on existing programs and services
Nova ScotiaFollowing ” Made in Nova Scotia Process” under s.35 of Constitution
New BrunswickConducting technical review of BC legislation
PEIIntent is to follow federal government process

The findings as of Sept. 23, 2020:

  • 3 in favour but under Canadian law (Canada, BC, NWT)
  • 2 in favour with caveats (Yukon due to existing, established treaties and Nunavut who also have the Nunavut Land Claims Agreement)
  • 9 opposed: including Quebec whose current premier committed to implementing UNDRIP two years ago and who has now changed his position and Ontario where Bill 76 is stuck in committee and as a Private Member’s Bill is unlikely to pass

So which governments – federal, provincial, territory – are in favour of “fully adopting and implementing UNDRIP”? Based on the above: NONE. Three of the five in favour are looking at implementation under Canadian law; Yukon and Nunavut already have existing Land Claim Agreements. The Inuit Tapariit Kanatami – who represent the Inuit in Nunavut, Inuvialuit, Nunavik and Nunatsiavut – also have a significant caveat based on a serious omission from the previous Bill C-262 – “no independent enforcement mechanism and/or oversight body”… to ensure that governments act in good faith to implement their human rights obligations”. Given Canada’s history towards Indigenous people, that is a reasonable and essential request.

What have our elected leaders said about UNDRIP

Carolyn Bennet, Minister of Crown – Indigenous Relations and Northern Affairs Canada

“Free Prior and Informed Consent must be interpreted through domestic legal and constitutional frameworks”, that is, entirely and exclusively under Canadian law regardless of Indigenous laws and tradition.

Erin O’Toole. Leader of the Conservative Party of Canada

O’Toole said the Supreme Court has set a higher bar on the so-called “duty to consult” than what is outlined in UNDRIP. (CBC, Sept. 3, 2020). He would not support the UN Declaration on the Rights of Indigenous Peoples and outlaw blockades that target critical infrastructure (APTN. Aug. 24, 2020). (eg. Indigenous Wet’suwet’en protests). The Conservative members of the Senate also killed the previous UNDRIP Bill C-262 on June 21, 2019.

Brian Pallister, Premier of Manitoba

On May 12, 2020, the day celebrating the entry of Manitoba into Confederation 115 years ago, Premier Pallister refused to celebrate or even mention the contributions of the First Nations and Métis people and in particular Louis Riel, the Métis leader who was the “Father of Confederation” who actually led Manitoba into Confederation in 1870. Pallister also wrote an Op-Ed in the Globe and Mail on Mar. 9, 2020 arguing against UNDRIP and especially “Free, Prior and Informed Consent” which he interprets as a veto over economic development projects that in his mind rightfully belong exclusively under provincial jurisdiction. (See Indigenous Watchdog UN Declaration (Current Problems and Issues) for a complete rebuttal of Pallister’s position by the Aboriginal Bar Association).

Jason Kenny, Premier of Alberta

On Feb. 24, 2020 in the Globe and Mail, Premier Kenney has urged Trudeau to drop the plan for legislation to enshrine the United Nations Declaration of the Rights of Indigenous Peoples (or UNDRIP)… Kenney said the Liberal government had to be “very careful” to avoid entrenching in Canadian law “the UNDRIP veto” — or what some see as an Indigenous veto over land development.

On Sept. 1, 2020, the anniversary of Alberta’s entry into Confederation 115 years ago, Premier Kenny acknowledged Indigenous people had inhabited Alberta for more than 10,000 years and “had found a land rich in bounty”. Without realizing the irony, he then boasted how “Alberta had waged a protracted fight to wrestle ownership of OUR OWN natural resources with the federal government in 1930”. What happened to the rights of the original inhabitants he so blithely dismisses?

Doug Ford, Premier of Ontario

At a press conference June 15, 2020, Ontario Premier Doug Ford was asked if he would commit to passing a bill that would implement the United Nations Declaration on the Rights of Indigenous Peoples in Ontario. He didn’t answer the question and stated instead: “There’s never one step to do reconciliation.”

Francois Legault, Premier of Quebec

On Sept. 14, 2018 François Legault, Leader of Coalition Avenir Quebec, in a letter to Ghislain Picard, Chief of the Assembly of First Nations Quebec-Labrador stated that a CAQ government would implement UNDRIP with the full collaboration of Indigenous peoples. Two years later on Aug. 14, 2020 Premier Legault reversed his position due to fears that it will force the government to give Indigenous groups a veto on all economic projects…citing a risk to the integrity of the province and the right Quebec’s self-determination”.

John Horgan, Premier of British Columbia

On Jan. 13, 2020, Premier Horgan stated that “the Coastal GasLink pipeline will get built even with opposition from Wet’suwet’en hereditary chiefs and protesters along the pipeline route” – 4 months before signing the MOU with the Wet’suwet’en hereditary chiefs. Premier Horgan emphasized the BC Supreme Court gave Coastal Gaslink access to Wet’suwet’en territory and their ruling overruled Wet’suwet’en laws.

Premier Dwight Ball of Newfoundland and Labrador

Key Finding # 13 from “Muskrat Falls: A Misguided Project” stated: Government of Newfoundland and Labrador (GNL) (GNL failed to ensure that it and Nalcor acted fairly in its consultations related to Indigenous Peoples and environmental matters. GNL did not act appropriately from a fairness perspective with the Nunatsiavut Government, the NunatuKavut Community Council and the Innu of Ekuanitshit. GNL and Nalcor created an environment of mistrust and suspicion by not allowing all of the Indigenous Peoples and other concerned citizens to engage in a meaningful and transparent consultation process.

And what do Canadians think?

According to a Nanos poll “Views of Canadians on Indigenous Issues” released by the Assembly of First Nations on Sept.8, 2020, 64% of Canadians either Support or Somewhat Support “Agreement with passing legislation to implement the United Nations Declaration”.

In the same poll, 79 per cent of Canadians support First Nations issues as a priority for Canada, this opinion was strong even during the COVID-19 pandemic.

The people of Canada have spoken. If only the political and business leaders of Canada would listen.

Notes:

  1. Centre for International Governance Innovation p. 125. Nine “Articles” of the United Nations Declaration on the Rights of Indigenous Peoples (out of 46) that directly impact Indigenous lands:
    • Article 8(2)(b): Right to redress for dispossession
    • Article 10: Protection against involuntary relocation
    • Article 25: Right to maintain and strengthen spiritual and stewardship relationship with traditional lands and waters
    • Article 26: Right to state recognition of traditional lands, territories and resources
    • Article 27: “Fair, independent, impartial, open and transparent process” to adjudicate Indigenous territorial rights
    • Article 28: Right to restitution or compensation for lands taken, used or damaged without consent
    • Article 29: Right to environmental protection and conservation
    • Article 30: Protecting traditional lands from military activities
    • Article 32 (2): Protection from development or resource exploitation without Indigenous consent
  2. Section 35 Constitution Act, 1982; Supreme Court Tsilqot’in Nation decision June 2014 and Delgamuukw in 1997; Supreme Court of Canada R v. Van der Peet, 1996; BC Supreme Court in Canadian Forest Inc v. Sam, Supreme Court in Haida Nation, 2004
  3. Land Back. A Yellowhead Institute Red Paper”, October, 2019. Reviews of almost 100 cases of injunctions found that this legal tool reinforces the impossibility of choices First Nations must make when they appear before Canadian courts
  4.  “In recent years, Canada has ranked between 6th and 12th on the UN Human Development Index while First Nations fall between 63rd and 78th. The federal government’s Community Well-Being Index shows that the gap has not changed since 1981″. AFN National Chief Perry Bellegarde “Honouring the Promises: 2019 Federal Election Priorities for First Nations and Canada
  5. Provincial projects ignoring COVID-19 threats to Indigenous populations to expand construction activities and/or ignore environmental safeguards and by extension their “Duty to Consult” Indigenous peoples:
    • BC – Site C Dam, Coastal GasLink, Trans Mountain Pipeline Expansion
    • Alberta – Oil Sands, Peace-Athabasca Delta, Bill 1- The Critical Infrastructure Defence Act
    • Saskatchewan – continuing use and reliance on the “2010 First Nation and Metis Consultation Policy Framework
    • Manitoba – Keeyask Hydro, Lake St. Martin Outlet Channels
    • Ontario – Ring of Fire, Bill 197 – COVID-19 Economic Recovery Act, 2019
    • Quebec – Mining operations in Inuit Nunavik
    • Newfoundland and Labrador – Muskrat Falls
  6. University of Victoria law professor John Borrows, Canada Research Chair in Indigenous Law, says the UN document does not contain a veto… “Indigenous peoples have the right to redress” either by restitution or “just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

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