Canada’s government shamefully refuses to implement the U.N. Declaration on the Rights of Indigenous Peoples

Posted on July 21, 2015 in Inclusion Policy Context – Full Comment
July 21, 2015.   Peter Raaymakers

When the final report of the Truth and Reconciliation Commission of Canada (TRC) was issued in Ottawa in June, Justice Murray Sinclair included a list of recommendations — 94 in all, on such subjects ranging from education reform to missing and murdered indigenous women — which listed a variety of ways that the Canadian federal and provincial governments, churches and other institutions and individuals can act to “redress the legacy of residential schools and advance the process of Canadian reconciliation.”

Among the many extremely important and urgent recommendations made, two related ones stood out as fundamentally vital: for Canada to fully support the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and to take concrete steps in order to protect the rights described therein. In an interview with the CBC, Justice Sinclair highlighted the declaration as a “starting point for reconciliation.” The declaration was ratified by the United Nations in 2007, with 144 votes in favour and only four against. All the countries that voted against it — Australia, New Zealand, the United States and Canada — have a history of mistreating indigenous people.

Running just 15 pages, UNDRIP is a fairly simple document that affirms the legal rights of indigenous people to “freely pursue their economic, social and cultural development.” It stipulates that indigenous people should not be discriminated against and that they should be able to freely practice and revitalize their customs — rights that most Canadians take for granted.

Many of the TRC’s other calls to action, particularly those related to education, health care, and language and culture, stem from UNDRIP and are covered in the rights the declaration would see entrenched

Over the course of 46 articles, the declaration goes on to describe the various facets relevant specifically to indigenous peoples that must be addressed to ensure they are protected by these legal rights. It constitutes, as outlined in Article 43, “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” At the time of the vote in 2007, then-Indian Affairs Minister Chuck Strahl said the declaration was “inconsistent with our Constitution” because it would, in the Canadian government’s interpretation, place the rights of indigenous peoples above those of other Canadians.

Although the Canadian government eventually came around to supporting the declaration as an “aspirational document” without any legal authority, it cited three sections that — surprise! — deal with issues of land use and consultation to explain its unwillingness to fully support it. The Canadian government has maintained the belief that provisions requiring “free, prior and informed consent” of indigenous peoples could give those groups a veto, despite the fact that the Assembly of First Nations has in the past denied that interpretation, as did the United States’ government when it came around to endorsing the declaration.

It’s worth noting, however, that even if the provisions requiring consent did constitute a veto to First Nations groups when negotiating development projects on Crown land, that wouldn’t be unconstitutional — in fact, it would be an extension of Canada’s commitments entrenched in the Constitution to honour past treaties. Much of this land was not ceded, and to quote Taiaiake Alfred, a Kahnawake Mohawk author and educator, “to assert the validity of Crown title to land that the indigenous population has not surrendered by treaty is to accept the racist assumptions of earlier centuries.” Canada must be better than it has been in the past, and this starts with acknowledging colonial realities of land ownership.

Shamefully, the Canadian government continues to refuse to fully support the declaration. In May, the government voted down Bill C-641, which was put forward by NDP MP Romeo Saganash and sought to ensure that Canadian laws were in line with UNDRIP. Only Conservative members of Parliament (a group in which I include independent James Lunney, who was elected as a Conservative MP) voted against the bill. All others present were in support.

Many of the TRC’s other calls to action, particularly those related to education, health care, and language and culture, stem from UNDRIP and are covered in the rights the declaration would see entrenched. Instead of respecting these rights, this government has recently passed several pieces of legislation — including the anti-terrorism bill (which threatens the rights of all Canadians, including indigenous peoples, to peacefully protest) and the omnibus Jobs and Growth Act (which amended, among other things, the Indian Act, the Canadian Environmental Assessment Act, the Fisheries Act and the Navigable Waters Protection Act) — were arguably in violation of the declaration (as well as existing treaty and constitutional obligations) by shirking the government’s responsibility to engage in meaningful consultation with indigenous people on legislation that affects them.

It is promising, however, that both the NDP and the Liberal party unanimously supported Saganash’s bill to enshrine the declaration into Canadian law. If one of those parties is able to form government after this year’s federal election, we can reasonably expect that they will re-introduce the bill and, overdue as it may be, finally ensure that the government of Canada offers its full support for the United Nations Declaration on the Rights of Indigenous Peoples.

Once that’s completed, only 92 further recommendations of the TRC will remain unfulfilled. No one said reconciliation was going to be easy.

Peter Raaymakers is an Ottawa writer.

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