Current Reality

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.” Endorsed to date by nearly 150 countries, including Canada, the Declaration on the Rights of Indigenous Peoples is the most comprehensive international instrument on the fundamental rights and freedoms of Indigenous peoples (culture, identity, religion, language, territory, health, education, cooperation) impacting approximately 370M indigenous peoples.

Dec. 5, 2019 – The Speech from the Throne committed to take action to co-develop and introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples in the first year of the new mandate. The main question is how they will ensure passage given the entrenched opposition within the Senate conservatives.

June 21, 2019 – Bill C-292 “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples” killed by the Conservative senators who stalled passage of the Bill so it could not pass before the dissolution of Parliament on June 21, 2019.

May 9, 2018 – 11 years after the United Nations adopted UNDRIP, the Canadian government introduced Bill C-262, An Act to ensure that the laws of Canada are in harmony with UNDRIP. The Bill passed 3rd Reading in the House of Commons on May 30, 2018 and is now with the Senate where the Conservatives have introduced stalling tactics to delay its passage.

Only BC, Ontario, Quebec and the Northwest Territories have made legislative commitments to develop and implement UNDRIP legislation.

Calls to Action

Call to Action # 43Fully adopt and implement UNDRIP as the framework for reconciliation
Call to Action # 44Develop national action plan and strategies to achieve UNDRIP goals

Current Problems and Issues with implementing UNDRIP

The main issues have to do with an ongoing lack of consultation with First Nations, Métis and Inuit people on issues that directly impact Indigenous rights and title, Indigenous laws and traditions and closing socio-economic gaps. Federal, Provincial and Territory governments persist on viewing Indigenous issues through a colonial lens that perpetuates the issues not resolve them.

Negative impacts on Indigenous health through the suspension of environmental monitoring by the Alberta Energy Regulator

June 5, 2020: Three First Nations in northeast Alberta – Athabasca Chipewyan First Nation, Fort McKay First Nation and Mikisew Cree First Nation -have jointly filed an appeal related to recent Alberta Energy Regulator (AER) decisions to suspend key aspects of environmental monitoring in the oil sands. The First Nations were not consulted on decisions that clearly impact Alberta Energy Regulator’s (AER) ability to identify and mitigate these impacts in traditional territories.

“The decisions to suspend environmental monitoring were made unilaterally. We were not notified—in fact, we would have had no idea this had occurred if it had not been revealed in the press,” stated Mel Grandjamb, Chief of Fort McKay First Nation. Consultation would have enabled us to inform the regulator how its monitoring decisions impact our Nations. Both we and the industry would have been better served by the clarity that consultation would have contributed to these decisions.”

In the days leading up to these decisions, our representatives sat AER, government and industry representatives to provide oversight to environmental monitoring programs under the Oil Sands Monitoring Program. The fact AER did not mention once it was considering suspending monitoring, some of which may overlap with program work, is very disappointing. This neglect does not encourage reconciliation. In March, the Canadian Association of Petroleum Producers requested that the federal government relax several regulatory and policy activities, including an indefinite suspension of all consultation with industry to develop new environmental policies. At the same time, industry has lobbied the provincial government to resume consultation with Indigenous communities to advance projects despite the closure of our communities due to COVID-19 pandemic responses.

May 8, 2020 – Clean Tech Canada (Canadian Manufacturing) The latest exemptions specifically relieve operators of the following:

  • Monitoring most ground and surface water, unless it enters the environment
  • almost all wildlife and bird monitoring is suspended
  • Air-quality programs, including one for the First Nations community of Fort McKay, have been reduced, along with many other conditions of the companies’ licences
  • Testing for leaks of methane, a powerful greenhouse gas, has been suspended
  • Wetlands monitoring and research is gone until further notice
  • Water that escapes from storm ponds no longer must be tested
Government of Ontario using COVID-19 to restrict consultation on development of Ring of Fire mining operations

May 22, 2020: Policy options – “Pandemic shouldn’t impede meaningful Indigenous engagement on Ring of Fire”. Ontario government announced that “a regional assessment of potential mining operations for the Ring of Fire will be undertaken”. The announcement only posted on the agency website severely impacts the ability of First Nations to meaningfully engage in the consulting process. Only those registered on the email distribution received the email notification that:

  • Agency suspended all face-to-face meetings
  • Cancelled all engagement activities
  • Agency will continue to develop a regional assessment and plan with a much more constrained engagement

As evidence demonstrates, inadequate internet access and a lack of cellular networks access to remote regions in Northern Ontario put First Nations at a greater disadvantage in efforts to participate at a distance during the global pandemic.  For remote First Nations in Northern Ontario, the agency must work harder to ensure that the voices of communities implicated in the Ring of Fire regional assessment are not further silenced by the ongoing COVID-19 pandemic. Vague statements such as the one released to the email distribution list do little to provide implicated communities, organizations, and individuals the clarity required to adequately adjust and prepare for consultation opportunities once the threat of COVID-19 subsides. In the meantime, it is imperative that First Nation community members and leadership, scholars, activists, policy-makers, consultants and other groups interested in Ontario’s Ring of Fire remain as vigilant as possible during COVID in monitoring developments in the region and ensuring major decisions are not made without critical thought or meaningful Indigenous and public engagement.

June 9, 2020: CBC – Nine faculty members at York University’s Osgoode Hall Law School are calling on the provincial government to press pause on mineral staking and permitting processes on Indigenous territory in light of the COVID-19 pandemic. In a letter addressed to Greg Rickford, the province’s minister of energy, northern development and mines state that continued exploration is putting an undue burden on remote northern communities, and making it too difficult for meaningful consultation to take place.

“We didn’t think it’s lawful the way they’re proceeding with mining as usual in the context of a global pandemic,” said Dayna Scott, an associate professor at the school and in the faculty of urban and environmental change at York, and the primary author of the letter. “And that’s in particular because many of the remote Indigenous communities that we work with in Ontario are expressing extreme difficulty in managing the sort of day-to-day work that needs to be done in governing their communities in the context of the pandemic.”

First Nations protest against Manitoba Hydro Keeyask project due to COVID-19 health concerns.

May 24, 2020 – AGREEMENT REACHED

Manitoba Keewatinowi Okimakanak (MKO) Inc. is issuing this statement along with the four Cree Nations that have entered into a partnership with Manitoba Hydro in the construction and operation of the Keeyask Generating Station in Northern Manitoba. The four First Nations are: Tataskweyak Cree Nation, Fox Lake Cree Nation, War Lake First Nation, and York Factory Cree Nation. “MKO is pleased that Manitoba Hydro has come to an agreement with the four Cree Nations regarding the Keeyask construction site,” stated Grand Chief Garrison Settee. “It is imperative that corporations working in our territory are full partners and in agreement with plans to open up the North—the First Nations had made it clear for weeks that they were not in agreement with the plans made for the Keeyask project. Their ultimate concern was in protecting their communities from the threat of COVID-19. The agreement made between the Chiefs and Manitoba Hydro includes the removal of blockades, the lifting of the injunction against Tataskweyak Cree Nation, as well as planning exercises, a move towards implementing the project plan for Keeyask, and an in-person meeting between the CEO and the leadership of the four Cree Nations.

WHAT WAS THE ISSUE?

May 20, 2020: Amnesty InternationalDespite legal obligations, Manitoba Hydro has not worked collaboratively to obtain consent to this most recent decision to expand operations (Keeyask Hydro project) and is ignoring requests by the four partner First Nations (Fox Lake, War, York Factory) to limit work at the dam site because of public health concerns. “Every effort must be made to contain the spread of COVID-19,” said Ana Collins, Indigenous Rights Campaign Advisor with Amnesty International Canada. “Indigenous communities in northern Manitoba are rightfully occupying and defending lands to which they still hold inherent title. Yet federal and provincial governments continue to rely upon repudiated papal doctrines of discovery and terra nullius to claim (as in the Haida decision) “presumed Crown sovereignty.”

Without question, these communities have an inherent responsibility and right to control access into their territories to protect their communities from COVID-19 and prevent unsustainable pressure on healthcare systems in rural and remote areas. “In light of the highly infectious nature of COVID-19, and the particular threat that it poses to vulnerable communities with inadequate access to health care, housing, water and other essential services, it is imperative that federal, provincial and territorial governments respect the right of Indigenous peoples to set conditions of entry into their territories. Indigenous communities must be able to restrict access of industry workers, tourists, cottagers, and others. Where Indigenous communities have required suspension of certain activities in their territories, this must be respected.”

 Coalition for the Human Rights of Indigenous Peoples

Northern Manitoba First Nations had the highest rates of hospitalizations of all First Nations in Canada during the last H1N1 pandemic. MacLean’s July 16, 2009

Government of Quebec infringing on First Nations Aboriginal treaty rights by failing to consult First Nations on Bill 62’s impact on health

Apr. 20, 2020 – Makivik Corporation, who represent the Inuit of Nunavik, is strongly opposed to the resumption of mining activities in the Nunavik region. The decision was made unilaterally by the government of Quebec without consultation whatsoever with the Inuit and was further supported by a directive issued by the Nunavik’s Director of Public Health, and Nunavik’s Director of Civil Security to partially lift the travel ban to Nunavik for the purpose of the reopening of the mining sites. Inuit account for the vast majority of the population in Nunavik and need to have a say on major regional issues such as this one. Miners started returning to the region yesterday.

“Makivik will not entertain the opening of any mines at this time in Nunavik. This is very dangerous. The Inuit elected officials in the communities and in the different regional organizations need to be heard and need to make the decisions and call the shots. Nunavik cannot and will not be governed by civil servants who may be tempted to use the pandemic to empower themselves” says Makivik President Charlie Watt. “ We have written numerous letters to Quebec on different issues related to the pandemic and they have not responded…not even an acknowledgement of receipt.” As the signatory to the James Bay and Northern Quebec Agreement (JBNQA) and the Raglan and Nunavik Nickel Agreement, Makivik Corporation is the political representative of the Inuit of Nunavik, and this is without question. Quebec can’t ignore Makivik and has to fully respect the spirit and intent of the JBNQA. The Inuit can’t accept to go through another bad episode of colonialism in 2020.

Open Letter from Union of BC Chiefs to Government of BC to halt construction of Site C Dam due to risks of spreading COVID-19

March 26, 2020 – Open Letter from Union of BC Indian Chiefs to Premier John Horgan and Adrian Dix, Minister of Health to halt construction of Site C Dam due to concerns around COVID-19. Through UBCIC Resolution 2011-25, UBCIC highlighted the environmental dangers of the Site C Dam and pointed to the devastating effects it will have on the Treaty and Aboriginal Rights of Treaty 8 First Nations. BC Hydro has confirmed that 16 of its construction workers at the Site C Dam site are under self-isolation with flu like symptoms. Given the close quarters and inevitable contact points at the 1,600-worker camp, an outbreak of COVID-19 would be disastrous and with dire implications for nearby communities, including First Nation communities.

There is an extreme shortage of health services in northeast British Columbia, with virtually no hospital beds available to handle an outbreak in Fort St. John or nearby Indigenous and non-Indigenous communities. BC Hydro’s recent news release also reveals that it is barrelling ahead with Site C Dam construction, including work on river diversion, transmission lines, highway realignment, clearing and other elements. This negligence and irresponsible continuation of construction places the welfare of workers and communities at an unacceptable risk and is utterly inconsistent with the health advice provided by Provincial Health Officer Dr. Bonnie Henry.

Premier of Manitoba is firmly opposed to implementation of UNDRIP

Mar. 9, 2020: Globe and Mail – Premier Brian Pallister unequivocally states that implementing UNDRIP would compound the havoc experienced by Canadian families and businesses caused by the uncertainty in securing clarity and predictability around Indigenous consultation and environmental approval processes”. In other words, the “new federal government legislation on the United Nations Declaration on the Rights of Indigenous People (UNDRIP) is problematic. He references “thirty-eight” years of progress “on developing a coherent framework for how to respectfully consult and accommodate Indigenous concerns.”

Premier Pallister’s fundamental solution is twofold and is viewed through a colonial lens:

  1. A “well developed legal framework needs to be reaffirmed and reinforced”. i.e. one that excludes Indigenous legal traditions and practices
  2. Free, Prior and Informed Consent “would enshrine in Canadian law renewed public signals that are already encouraging veto-based demands, as well as illegal blockade actions – in defiance of court orders.” (i.e. what we want we get, what you want, you don’t”.

His underlying premise is that UNDRIP will undermine the legal, investment and regulatory cohesion that provide the foundations to advance Canadian society.

April 10, 2020 – Indigenous Bar Association raises the following points to point out the flawed logic of Premier Pallister’s opinion piece:

  • Canadian courts have and continue to cite the UN Declaration to inform domestic law. Over 70 Canadian cases have considered the UN Declaration and its application. It is a longstanding legal principle that Canadian courts will use conventions, declarations, and treaties supported or adopted by Canada internationally as an interpretative aid when defining and enforcing domestic laws
  • Governments as well as industry have frequently recognized that projects grounded on the support of Indigenous Peoples are the pathway to advancing reconciliation and securing the economic certainty that Premier Pallister seems so worried about
    • in 2015 the World Bank adopted standards that incorporate Free Prior and Informed Consent (“FPIC”) for funding decisions of projects impacts Indigenous Peoples;
    • since 2013 the International Council on Mining and Metals has explicitly encouraged approaches grounded on the principle of FPIC;
    • in 2007, the Prospectors and Developers Association of Canada has acknowledged that FPIC may be a necessary requirement in some circumstances
  • None of these organizations or industries seem to have suffered the “devastating loses…cancelled investments [or] immeasurable damage” that Premier Pallister fears
  • All levels of Canadian courts have clearly—and repeatedly—stated that consultation is based on the fact that Indigenous Peoples owned, occupied, and utilized the lands that make up what is now Canada prior to Europeans coming to this country. Any title that Canada—or indeed Manitoba—asserts is premised on this fact of underlying Indigenous rights. 
  • Canada is not adopting the UN Declaration legislation blindly or without thought and deliberation; it is doing so grounded on decades of careful deliberation, rigorous academic study and debate both internationally and domestically, and moreover, in partnership with Indigenous Peoples. Our societies evolve and extend legal protections for everyone, no longer just for a select few. So too must the law evolve — a point that Premier Pallister opinion overlooks.
  • The provinces and territories have made similar arguments to Premier Pallister’s when the duty to consult was confirmed in law in the landmark Supreme Court of Canada decisions in Haida NationTaku River Tlingit, andMikisew Cree.
    • Canada’s highest court responded that the government’s arguments and fears—similar to those espoused by Premier Pallister regarding regulatory standstills, decision paralysis, and economic uncertainty “do not withstand scrutiny” (para 31 of Haida). That was in 2004. The sky did not fall nor did the economy crumble or reconciliation erode when the duty to consult became law. Nor will it now.
  • Arguing that human rights should not be extended to peoples who have actively been suppressed from exercising such rights for so long by the government is deplorable. A provincial leader using the rights of Indigenous peoples as an attack against the federal government is even more reprehensible.

http://nationtalk.ca/story/indigenous-bar-association-challenges-premiers-understanding-of-law

First Nations Supreme Court challenge to the Trans Mountain Pipeline approval

Apr. 7, 2020 – The Squamish Nation, Tsleil-Waututh Nation, the Ts’elxwéyeqw Tribes and Coldwater Indian Band announce they are seeking leave for appeal to the Supreme Court of Canada. These four First Nations have fought and challenged the Trans Mountain Expansion (TMX) Project through every Federal court. They now intend to seek a challenge at the Supreme Court of Canada. The First Nations are challenging the adequacy of Indigenous consultation leading up to the second approval of the oil pipeline project.

“The Supreme Court of Canada needs to deal with the Federal Court of Appeal’s decision that essentially lets the government be the judge and jury of its own consultation efforts. We need the opportunity to address the flawed consultation and engagement conducted by the Federal government, given the strength of rights and title of the Squamish People to Burrard Inlet and Vancouver. Indigenous peoples have a constitutional right to meaningful consultation and the courts must scrutinize that process. This flawed decision cannot stand, and we must challenge it, not just for us but for any future project that may be challenged by First Nations,” said Khelsilem, Squamish Nation Spokesperson and Councillor

Conservative Party of Canada blocks UNDRIP

June 21, 2019 – On National Indigenous Peoples Day, the conservatives in the Senate effectively killed “Bill C-292 – An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous PeoplesThe Conservative Party in the House of Commons had previously opposed passage of UNDRIP that was nevertheless passed in the House of Commons by a vote of 206 vs 79 (all conservatives)

The UN Declaration, which provides the minimum standards for the survival, dignity and human rights of Indigenous peoples and framework for reconciliation, has been voted on and approved on four occasions by the United Nations General Assembly since its initial introduction on Sept. 13, 2007 where the only opposition was from Canada, the United States, Australia and new Zealand: colonial countries with large Indigenous populations.

Conservative Senators block UNDRIP

April 9, 2019 – Conservative Senators prevented Bill C-262 being sent to Committee for review. Passage of Bill C-262 would establish a legislative framework for future governments to work collaboratively with Indigenous peoples to interpret and apply the global human rights standards set out in the 2007 UN Declaration on the Rights of Indigenous Peoples.

Last year, an overwhelming majority of Members of Parliament voted (206 to 79) to adopt Bill C-262.  No Conservatives supported the bill. The Senate was scheduled to conclude second reading of the Bill yesterday, but a vote to move it to Committee for debate was prevented by two procedural motions by Conservative senators and a question of privilege which interrupted Senate business and left no time to address Bill C-262.

After more than two decades of deliberation in the United Nations, and more than a decade of political debate in Canada, the opportunity to finally move ahead with concrete, meaningful implementation of the UN Declaration must not be squandered by unprincipled stalling tactics,” said Grand Chief Wilton Littlechild, former Commissioner with the Truth and Reconciliation Commission. Our organizations are calling on Conservative leader Andrew Scheer to ensure that Conservative Senators abandon these unprincipled stalling tactics so that consideration of Bill C-262 can proceed.

See below for a list of organizations who have endorsed the above.http://nationtalk.ca/story/ubcic-conservative-senators-jeopardize-crucial-human-rights-legislation-indigenous-peoples

Federal Government ignores Free, Prior and Informed Consent

May 6, 2019: Cision – The Chiefs of Sovereign and Treaty Nations from Treaty 6, 7 and 8 have consistently told Canada, “Nations don’t make laws for other Nations”. Despite numerous attempts to work with the Federal Government, Canada continues to unilaterally develop laws and policies without our right to free, prior and informed consent. Alexander First Nation, Chief Kurt Burnstick

On behalf of our Nation and three other First Nations, we filed an early warning action with the Committee on Elimination of Racial Discrimination (CERD) against all the unilateral actions of Canada. In December 2018, a letter was sent to Canada asking what steps Canada has taken to protect the rights of our Nations to our free, prior and informed consent in all aspects from legislation to policy changes. CERD gave Canada until the 8th of April 2019 to respond to our UN CERD submission” added Chief Makinaw.

Federal and Provincial governments refuse to accept Aboriginal Title

Feb. 2, 2019: Policy Options – Continued refusal to accept Aboriginal title as defined by the Supreme Court of Canada in the Delgamuukw decision and the Tsilhqot’in decision. The Supreme Court of Canada similarly recognizes in Delgamuukw that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title “arises from the prior occupation of Canada by aboriginal peoples.” (Policy Options Politique)

https://policyoptions.irpp.org/magazines/february-2019/canadas-prove-it-approach-to-aboriginal-title/

Canada’s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which both the federal and BC governments have committed to implement, recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”