Indigenous rights bill weak, but necessary

Posted on January 4, 2021 in Equality Policy Context

Source: — Authors: , – Opinion/Contributors

The case for passing Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, was crystallized last week with Conservative Party Leader Erin O’Toole’s ignominious remarks sanitizing the residential schools.

O’Toole suggested the intent of the schools was “educational” and snidely advised using the record of Liberal governments as a means to “silence” debate. While the comments betray O’Toole’s whitewashing of Canadian history, he was right about one thing: discrimination, dispossession and denial of Indigenous rights is a proud bipartisan tradition in Canada.

Like every significant advance for Indigenous rights within Canada, Bill C-15 results from decades of activism, organizing and struggle led by Indigenous peoples. It is a short, relatively simple piece of legislation that affirms the UN declaration’s application in Canadian law. The bill also provides a framework for aligning laws and policies to be consistent with the declaration through a mandated action plan with annual progress reporting. Bill C-15 is based on a similar private member’s bill tabled by former NDP MP and residential school survivor, Romeo Saganash.

The UN declaration defines the minimum standards for dignity for Indigenous people as human rights related to culture, identity, language, health and education. It also includes articles on self-determination and self-government, redress and restitution, and the requirement to secure Indigenous peoples’ “free, prior, and informed consent” for developments within their lands. It is these clauses that have the potential to transform Crown-Indigenous relations and begin to undo hundreds of years of Crown veto and the attempted destruction of Indigenous cultures, governance system and legal orders.

The Trudeau government has long espoused commitment to the declaration. Every day, however, thousands of decisions are made by the Crown that directly contradict it. Case law has set some minimum legal requirements to consult and accommodate should Indigenous rights be infringed. In our experience, even this minimum standard is often unmet, the Crown preferring to force Indigenous people to prove that their rights have been infringed after the fact.

The courts can only do so much to remedy the conflict between the Crown and Indigenous peoples. Bill C-15 moves the country in the direction of resolving the conflicts proactively. As required under the bill, the first action plan is to identify and prioritize which laws and acts to harmonize.

Bill C-15 also makes explicit the need to address state-led racism and violence. The government’s actions and inactions have created inequities that cry out for action every day. We’ve all seen the reports: the unequal funding of housing and infrastructure; the overrepresentation of Indigenous people in the criminal justice system; the race-based oppression inflicted on Indigenous people in the Canadian health-care system; and the continued removal of Indigenous children from their communities by child service agencies, to name a few.

Even by its modest objective of aligning laws with the declaration over time, the bill is weak. It gives the government three years (!) for the action plan to be developed. The tabling of that plan and the annual progress reports to Parliament are vague and do not provide any remedy beyond public pressure should there be no progress to speak of. Perhaps Trudeau thought better of an ambitious timeline after unconscionably missing the target to end boil-water advisories in First Nations?

The limitations of the legislation run deeper. In 2019, British Columbia passed its law implementing UNDRIP that includes mechanisms to enable shared decision-making with First Nations, including statutory powers. Statutory decisions are generally defined by legislation, and power often rests with a minister or civil servant. B.C.’s law enabled the Crown to negotiate agreements that share decision-making with Indigenous governing bodies and require their consent before the Crown executes decisions that could affect them.

Bill C-15 does not have any tools to help operationalize consent or create new ways for Indigenous title to be implemented. Its slow, incrementalist approach is frustrating. Nevertheless, it has merit. Despite shortcomings, the bill will provide new avenues and contestation sites for Indigenous rights movements to advance.

Most importantly, it binds any future government, no matter its political stripe, to the high standard of consent and the inevitability of Indigenous self-determination. Until the fundamental structures for how decisions are made, Indigenous political movements will continue to challenge Canada’s authority and the myth of Crown land.

Khelsilem is an elected leader for the Squamish First Nation. Jonathan Sas is an honorary witness to the Truth and Reconciliation Commission. He was an adviser to B.C.’s minister of Indigenous relations.

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