United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).
Canada’s reluctant adoption
The Wikipedia account (reference below) describes Canada’s subsequent adoption as follows:
“The Canadian government said that while it supported the “spirit” of the declaration, it contained elements that were “fundamentally incompatible with Canada’s constitutional framework,” which includes both the Charter of Rights and Freedoms and Section 35, which enshrines aboriginal and treaty rights. In particular, the Canadian government had problems with Article 19 (which appears to require governments to secure the consent of indigenous peoples regarding matters of general public policy), and Articles 26 and 28 (which could allow for the re-opening or repudiation of historically settled land claims).
“Minister of Indian Affairs and Northern Development Chuck Strahl described the document as “unworkable in a Western democracy under a constitutional government.” Strahl elaborated, saying “In Canada, you are balancing individual rights vs. collective rights, and (this) document … has none of that. By signing on, you default to this document by saying that the only rights in play here are the rights of the First Nations. And, of course, in Canada, that’s inconsistent with our constitution.” He gave an example: “In Canada … you negotiate on this … because (native rights) don’t trump all other rights in the country. You need also to consider the people who have sometimes also lived on those lands for two or three hundred years, and have hunted and fished alongside the First Nations.”
“On 3 March 2010, in the Speech From the Throne, the Governor General of Canada announced that the government was moving to endorse the declaration. “We are a country with an Aboriginal heritage. A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”
“On 12 November 2010, Canada officially endorsed the declaration but without changing its position that it was ‘aspirational’.”
Prime Minister’s progress report
In his December 2016 Speech to the Assembly of First Nations Special Chiefs Assembly Prime Minister Trudeau (reference below) stated:
“In May, Minister Bennett went to the UN to make clear our government’s unqualified support for the United Nations Declaration for the Rights of Indigenous Peoples. We remain committed to its adoption and implementation in full partnership and in consultation with Indigenous Peoples.
“I have asked Minister Wilson-Raybould to lead the work collectively with her Cabinet colleagues and First Nations, the Métis Nation and Inuit Peoples to ensure that this gets done.”
Gordon Gibson’s critique
In his 2009 book, A New Look at Canadian Indian Policy (reference below), Gordon Gibson, a former assistant to Prime Minister Pierre Elliott Trudeau and former leader of the Liberal Party of British Columbia, is highly critical of the Declaration:
“The current federal government has been much excoriated for refusing to affix the signature of Canada to the United Nations’ Declaration on the Rights of lndigenous Peoples (2007). … In fact, the position of Canada over the years has been quite consistent and, briefly put, holds that the Declaration has some serious conflicts with the Canadian Constitution and rulings and, if adopted, would throw the law into chaos. … To underline the importance of such agreements, recall the words of Chief Justice McLachlin of the SCC for the unanimous seven-judge bench in Health Services and Support [etc.] v. British Columbia, [2007): “The Charter should be presumed to provide at least as great a level of protection as found in the international human rights documents that Canada has ratified” (emphasis added). As the reader will see from the following, there is an excellent chance that adherence to this United Nations document, then to be read into the Charter by the Court, would have seriously destabilized the evolving pattern of Canadian law.
“The concepts of “indigenous peoples” and “inherent rights” are central to the Declaration itself. No definition or listing is given. In common parlance, this is signing a blank cheque. In the Declaration, indigenous rights are not merely individual; they are collective. No provision whatsoever is made for democratic or even good governance of the collective. Indigenous tyrannies may apply for UN blessing. Article 3 implies potential separation rights for indigenous peoples, though this is carefully obfuscated. Article 4 requires taxation (of the mainstream) without representation. Articles 5, 20, and 33 provide for a parallel society. Article 11 provides for retroactive compensation for things done “in violation of their laws, traditions and customs”. Article 18 provides for reserved seats in mainstream decision making bodies. Article 22 is so deliciously politically correct that it really is worth citation: “Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.” Middle-aged male indigenes have a complaint. Article 26 again is worth citing because it is the main concern of the government of Canada: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Ottawa says this would over-ride established and ongoing processes.
“None of this is surprising if you know how the United Nations operates. The reason there is no definition of an “indigenous” person, when that ought to be the very first line of text, is simple. The Asians and Africans absolutely vetoed it. The Chinese claim they have no indigenous peoples and the Indians and Pakistanis say they are all indigenous. The Africans are terrified of tribal schisms. ln a like way, giving a definition to “self-determination,” “peoples,” or “inherent rights” would have been dangerous to many countries. It is true that some of this language is used in the UN International Convention on Civil and Political Rights but there “peoples” are interchangeable with nation states or with liberating colonies. It is not an internal concept in that context.
“It is worth recalling that the United Nations is, inter alia, an assembly dominated by undemocratic states that have themselves no intention of abiding by rules they dislike but a great propensity to make rules for law-abiding western nations. Adherence to this Declaration would immensely complicate a developing pattern of Canadian accommodation and should be resisted. Recall again that our Supreme Court is prone to importing international law to guide us and that this Declaration is not in the usual “aspirational” language but rather the “rights” language of Conventions. Signing this would be a recipe for legal chaos and the bad, not the good, of Canadian Indians.”
Harry Swain’s analysis
In his presentation to the 2016 Walter Gordon Symposium, organized by the School of Public Policy and Governance and Massey College at the University of Toronto (reference below), former deputy minister of Indian Affairs and Northern Development Harry Swain offers the following perspective:
“Our new government has committed to implementing the 94 recommendations of the Truth and Reconciliation Commission, one of which is the United Nations Declaration on the Rights of Indigenous Peoples. UNDRIP was negotiated over 30 years and finally adopted in 2007. Its lengthy preamble and 46 articles lay out a series of collective and individual human rights that the world has decided should be the minimum enjoyed by indigenous peoples the world over. There is an excellent Handbook about it, written for the Indigenous Law Association by Prof. Brenda Gunn.
“But UNDRIP not without challenges. It is written, for example, in such high-flown and general language that it is sometimes difficult to figure out what it means, or whether or not Canada already meets the standard. In this it reflects the compromises and hard drafting necessary by indigenous leaders, advocates, bureaucrats and diplomats coming from widely disparate countries, each with its own sacred cows (and sins) to protect. But legislation (I include the accompanying regulations) requires precision, and detail. With all due respect to the process that gave rise to the Declaration, there are some quite important ambiguities that would have to be resolved if Canada were to proceed to legislating its key provisions. For example:
- It is clear that the Declaration is principally about collective rights that inhere in peoples. What should we do when they collide with individual rights, perhaps especially with regard to lands and the housing and businesses thereon? What about third-party interests in lands which may be found to be ‘theirs’? Is it possible that both nationally and internationally we have given too much weight to collective rights and kind of forgotten individuals?
- Rights are never absolute. They imply on the one hand responsibilities, and on the other a mechanism for resolving conflicts among them. UNDRIP is a ringing statement of rights without a word on responsibilities, or conflict resolution, and is therefore seriously incomplete. Can legislation deal with the obvious hiatuses?
- If these rights are collective rights, there needs to be some practical definition of who these peoples are. Self-evidently the peoples will have to define themselves—the long history of, for example, defining Indian Act bands as First Nations is a nonsense, as Judge Vickers and later the Supreme Court strongly implied. It may take some time, in some places, before a particular national indigenous consciousness arises; must time stop for the rest of us?
- A related question concerns the members of these collectivities. Who are the people, as opposed to peoples? We have a rough-and-ready approach to this in Canada, mostly leaving it up to the collective to define membership. While this may flow from indigenous law or custom, it has implications for both federal and provincial budgets. Not for nothing is there a brisk trade in status cards. And what happens when strict blood-quantum definitions result in exile, as at Kahnawake, or where an adopted kid isn’t allowed to play soccer?
- How shall we decide which are the “lands, territories, waters and coastal seas and other resources” which they “traditionally owned or otherwise occupied”? There isn’t much of Canada that might not be included in an expansive definition of these phrases (from Article 26). And yet the fundamental purpose of our principal law-making body, the Supreme Court, is “reconciliation.” That seems to mean sharing, after a process of good-faith negotiation. Note that negotiation always has an adversarial component. Is it possible to follow the constitutionally-protected dictates of the Supreme Court in a manner consistent with the Declaration?
- Ownership and control of ‘their’ lands implies at least partial self-government, as well as self-determination, a theme ringing through the Declaration. The governments to be set up by our indigenous peoples are to have a large measure of independence from the legal and other systems of the larger society. In Canada, aboriginal title lands may be governed by pre-contact norms; the question of their being consistent with the Charter hasn’t been decided. For example, will we force gender equality on societies whose traditional governance had strongly gendered roles? Perhaps everywhere but on aboriginal title lands, will we require voting as a means of making communal decisions, a method all but unknown before contact? Is slavery forbidden?
- How is ‘free, prior and informed consent’ to be made manifest? A referendum? A consensus, perhaps of elders? What does ‘free’ mean? Would the promises of jobs following a positive decision invalidate the result? Was the billion dollars offered to Lax Kw’alaams legitimate, or illegal? And, by the way, do we really mean to endow a subset of our population with political rights not enjoyed by the rest of us? As a victim of the Harper government’s omnibus Budget bills I would assert that ‘free prior and informed consent’ was hardly the measure of their legitimacy.
- If indigenous peoples are not to have the right of independent statehood (Article 46), in my view a fundamental precondition to Canada’s acceptance of the Declaration, does that mean that all laws of general application should apply to these peoples, or their territories, or both? Or only some, depending on where they are? What should be the criteria? We have been developing a rough-and-ready accommodation to this dilemma in many different places. Must they be consistent with each other? Or consistent with the Charter?
“I put these forward as some of the difficulties that will attend the implementation of the Declaration in Canada. I’ve gone through the Declaration looking for specifics that we either do already – quite a few – or which may conflict with other areas of established Canadian law. Article 2, for instance, is more or less done in Canada, although the Indian Act is certainly discriminatory. Article 7(2) may conflict with the UN Declaration on the Rights of the Child, and certainly does with most provincial laws, which put the rights of the individual child ahead of the collective rights of its ethnic group, where those conflict. Article 16(2) says that States should “ensure that State-owned media duly reflect indigenous diversity.” It would be hard to fault the CBC on this, and APTN is the best-kept good secret in the country. But there is a powerful convention that the Government of Canada should not interfere with the editorial decisions of the media. If a new Duncan Campbell Scott should become president of the CBC, does the Government have a positive duty to tell him what to do? Not that this could happen – just as it’s impossible the Republicans could nominate Donald Trump.
“I conclude with the observation that the Declaration contains a lot of high-faluting language; that Canada already meets most of its dicta, if not necessarily legislatively, and that the ambiguities in the Declaration ought to keep otherwise troublesome Parliamentarians fully occupied for decades. The real worry is that the electoral commitments of our new government – implementing UNDRIP and the recommendations of the TRC, a judicial inquiry into the missing and murdered women – may get in the way of more important and practical reforms. With UNDRIP and $2, any indigenous person in Canada can get a cup of coffee.”
UNDRIP and the Leap Manifesto
“Fully implementing” the United Nations Declaration on the Rights of Indigenous Peoples is a central pillar of the Leap Manifesto (see https://leapmanifesto.org/en/the-leap-manifesto/#manifesto-content), a document that is now associated with a movement within Canada’s New Democratic Party. (See for example, “The Leap Manifesto: What is it, and what could it mean for the NDP’s future?” at http://www.theglobeandmail.com/news/politics/leap-manifesto-what-is-it-and-what-could-it-mean-for-the-ndpsfuture/article29583796/, accessed 13 April 2016)
- Mackenzie Scrimshaw (2016), Unpacking UNDRIP: How Trudeau could take Crown/First Nations law into uncharted waters, iPolitics, 12 January 2016, at http://ipolitics.ca/2016/01/12/unpacking-undrip-how-trudeau-could-take-crownfirst-nations-law-into-uncharted-waters/, accessed 7 April 2016.
- Ken Coates (2013). From aspiration to inspiration – UNDRIP finding deep traction in Indigenous communities, at https://www.cigionline.org/blogs/aspiration-inspiration-undrip-finding-deep-traction-indigenous-communities, accessed 3 April 2016.
- Ken Coates and Terry Mitchell (2013). UNDRIP Changes Indigenous Peoples Articulation of Both Problems and Solutions, at https://www.cigionline.org/blogs/rise-of-fourth-world/undrip-changes-indigenous-peoples-articulation, accessed 3 April 2016.
United Nations, Declaration on the Rights of Indigenous Peoples, at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf, accessed 7 April 2016.
Wikipedia, Declaration on the Rights of Indigenous Peoples, at https://en.wikipedia.org/wiki/Declaration_on_the_Rights_of_Indigenous_Peoples, accessed 7 April 2016.
Prime Minister Justin Trudeau (2016), Speech to the Assembly of First Nations Special Chiefs Assembly, at http://pm.gc.ca/eng/news/2016/12/06/prime-minister-justin-trudeaus-speech-assembly-first-nations-special-chiefs-assembly, accessed 11 February 2017.
Gordon Gibson (2009). A New Look at Canadian Indian Policy: Respect the Collective – Promote the Individual, The Fraser Institute, Vancouver, pages 145-147.
Harry Swain (2016). Should we implement UNDRIP, Walter Gordon Symposium, 23 March 2016, http://www.atlas101.ca/pm/wp-content/uploads/2016/04/Harry-Swain-2016-Should-We-Implement-UNDRIP-Walter-Gordon-Symposium-1.pdf, accessed 7 April 2016.
Brenda Gunn (2011), Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples, Indigenous Bar Association, at http://www.indigenousbar.ca/pdf/undrip_handbook.pdf, accessed 7 April 2016.
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Page created by: Ian Clark, last modified on 11 February 2017.
Image: United Nations, Declaration on the Rights of Indigenous Peoples, at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf, accessed 7 April 2016.