APTN National News: The Canadian government claims the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is an “interpretative aid only” that can’t be used to strike down federal laws even though Parliament has passed legislation requiring they be in sync. Lawyers for Indigenous Services Canada (ISC) made the argument in response to a Federal Court challenge mounted by members of a Dene community in northern Alberta against the now-expired regulations that let First Nations postpone elections to deal with COVID-19.

The government, after losing a court case last April, retroactively validated these regulations in a section of the 2021 budget act — a section the group now asks the court to overturn.

“Around the time that they passed the budget bill, Bill C-15 came into effect,” explained the group’s lawyer Orlagh O’Kelly. “In UNDRIP, there is a requirement to consult with First Nations and Indigenous Peoples before passing legislation that impacts them. We say: That came into effect here and it wasn’t followed.”

The case was filed by 49-year-old Sidney Chambaud and eight other members of the Dene Tha’ First Nation, about 850 kms from Edmonton, after their leadership used the regulations to delay the community’s October 2021 election.

In response, the government’s legal brief says UNDRIP “may be used as a contextual aid” in interpreting domestic law. “However, neither the UN Declaration nor the UN Declaration Act can displace the Constitution or clear statutory language, nor has any Canadian Court suggested that the UN Declaration itself has constitutional status.” O’Kelly told APTN News she was “disappointed but not surprised” to see the argument, saying it seems to justify the critics’ “worst fears” about the United Nations Declaration on the Rights of Indigenous Peoples Act.

Tabled in the House of Commons under bill number C-15, the act says the government “must take all steps necessary” to sync federal laws with the declaration. It received royal assent in June 2021 but not without substantial debate and some controversy.

Critics charged the statute would blunt the international instrument’s edge by subjecting it to Canadian common law, which already permits the infringement of Aboriginal rights, making it a toothless “legislative guide” the government may simply ignore.