The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) enshrines the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”[1] When the UNDRIP passed in 2007 – important for the context of Canada, as we shall see – the 46 articles upheld the same fundamental freedoms that were already recognized in the Charter of the United Nations, the Universal Declaration of Human Rights, and in international human rights law.[2]
The UNDRIP says that all Peoples have the right to self-determination, and part of this is articulated in a principle known as Free, Prior and Informed Consent (FPIC). Unfortunately, this has been a sticking point for Canada, holding up vital reconciliation.
Free, Prior, And Informed Consent And Canada’s Indigenous Population
FPIC is an important policy for all Indigenous Peoples around the world, including in Canada, because it articulates their right to give or withhold consent to a project that may affect them or their territories. It also lets them negotiate the conditions under which the project will be designed, implemented, monitored, and evaluated.[3] The language is articulated in Article 19 of UNDRIP, which says:
“States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”[4]
This codification of the need for “free, prior and informed consent” makes clear that Indigenous peoples have the right to own, control, use, benefit from, and dispose of lands and natural resources, as well as the right of self-determination and to govern activities that affect their people, communities, and resources.[5] This has made the UNDRIP both an important Declaration to many Indigenous rights groups and a source of controversy in Canada.
The main point of concern has been how the FPIC relates to how it could impact Indigenous communities in matters that affect their lands – the most prominent example being pipeline projects. One recent example is when Prime Minister Trudeau stated that the Indigenous opponents of the project “don’t have a veto” in relation to the Kinder Morgan Trans Mountain pipeline. This was a contradiction of previous promises that under his government, “no would mean no” for Indigenous peoples if they chose to reject resource projects.[6] It’s also a direct contradiction of the UNDRIP, a practical example of why it won’t be ratified even under a government outwardly sympathetic to its aims.
Has Canada Adopted UNDRIP?
Canada’s relationship with the United Nations Declaration on the Rights of Indigenous Peoples is complicated and, for the most part, not positive. Even though Canadian Indigenous representatives were involved in the writing of the Declaration since the 1970s, Canada did not sign right away. Our government joined the United States, Australia, and New Zealand – all countries with comparable histories of colonialism – in levelling many arguments against the FPIC.
These four countries all argued that the level of autonomy recognized for Indigenous peoples in the UNDRIP would weaken their own state sovereignty, particularly in the context of land disputes and natural resource extraction that affected Indigenous territory. “By signing on, you default to this document by saying that the only rights in play here are the rights of First Nations,” said Chuck Stahl, the Minister of Indian Affairs and Northern Development under the Harper Conservatives. “And, of course, in Canada, that’s inconsistent with our Constitution.”[7]
Despite the reluctance of the Conservative government, human rights organizations continued to lobby for Canada to sign the UNDRIP. Nothing progressed past an inert 2015 Private Member’s Bill, tabled by former NDP MP Romeo Saganash, a Cree Member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou.[8]
The UNDRIP was eventually “adopted” by the Trudeau government in 2016, who promised to implement it fully. Despite these promises, neither the Declaration nor similar legislation has not been enshrined by law. In July 2016, Justice Minister Jody Wilson-Raybould, a member of the Kwakwaka’wakw nation, gave a speech that stated that “adopting the UNDRIP as being Canadian law is unworkable” because it is incompatible with the Indian Act.[9] This overarching federal legacy has led the provinces to work on some legislation of their own.
British Columbia is the first province in Canada to start implementing legislation aligned with the UNDRIP, passing the BC Declaration on the Rights of Indigenous People’s Act last year. In November 2019, the B.C. government committed $100 million per year for First Nation communities to invest in their own self-governance and cultural revitalization.[10]
While it’s a template for how other provinces should act in the face of Federal inaction, Indigenous peoples across Canada should not have to wait to have their rights recognized. What many Canadians don’t understand about the UNDRIP is that “implementing” the Declaration is not like ordinary laws, because it is not a treaty; it became international law in 2007 when the majority of the General Assembly of the United Nations voted in its favour. This made the UNDRIP relevant to Canada’s Indigenous peoples, whether our representatives signed it or not!
