UNDRIP into Canadian Law: The Need for a Nuanced Approach
The creation of UNDRIP, and the embrace of the principles therein, has been a critical international step forward for the recognition and protection of the rights of Indigenous peoples globally. In this context, UNDRIP provides an important benchmark in a world which has too often harmed, mistreated, and exploited Indigenous peoples.
While UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law. The fact that UNDRIP is a declaration and not a convention makes this clear. Conventions are binding agreements intended to be a reflection of international law and to be incorporated into national laws. Declarations, in contrast, are statements of generally agreed-upon standards which are not themselves legally binding. UNDRIP was not negotiated or drafted to be a comprehensive, implementable, legal regime, and as such, in the Canadian context and the context of Bill C-262, it is inconsistent, deficient, and a potential hindrance to reconciliation.
Canada's Indigenous Rights Regime Overview
Indigenous rights are not new in Canada: through s. 35 and the general protections for human rights set out in the Canadian Charter of Rights and Freedoms, Canada has developed one of the world's most sophisticated legal regimes for protecting Aboriginal and treaty rights, including in its constraint of unilateral state action. This has been accomplished in large part through the effective efforts of Indigenous peoples themselves litigating in Canada's courts. With a focus on reconciliation, the SCC has regularly constrained the exercise of Parliamentary authority for the purpose of protecting Indigenous rights (
as seen in the SCC's 2017 Peel River Watershed decision), while also allowing for necessary and unavoidable infringement of Indigenous interests where such interests conflict with broader, substantial social interests.
Section 35 and Reconciliation
In introducing Bill C-262 to a second reading, Mr. Saganash said that the Bill promises "to at least provide the basis or framework for reconciliation in our country," suggesting a new approach to Indigenous rights focused on reconciliation. Yet, reconciliation between Canada and its Indigenous peoples has been a constitutional principle in Canada for more than two decades. In 1996, SCC Chief Justice Lamer said s. 35 "provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown."3 Significant progress on the road to reconciliation has been made in Canada in recent decades, and will continue through the pursuit of honest dialogue, transparency of process, and shared expectations.
Reconciliation is not a simple process. According to the SCC, true reconciliation seeks to take into account Indigenous perspectives and the common law perspective, placing equal weight on each.4 Under Canada's existing Indigenous rights regime, the principle of reconciliation is used to constrain and limit government action when Indigenous interests may be impacted. However, the SCC has also used reconciliation as a vehicle for recognizing that at times, broader public interests will justify potential incursions on Indigenous rights. "[Since] distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable[emphasis added]."5
UNDRIP does not use the word "reconciliation" and does not give specific consideration to how Indigenous and non-Indigenous peoples can respectfully coexist. The omission of any reference to "reconciliation" within UNDRIP appears intentional: in countries without constitutional constraints on the exercise of power, the protections for Indigenous rights under UNDRIP, even when enacted into law, are subject to governmental discretion. This is different from Canada's internationally unique legal regime, where the principle of reconciliation means that democratically elected governments are constrained from unjustified interference with Indigenous interests.
Free and Informed Prior Consent
Within the Canadian context, certain elements of UNDRIP appear inconsistent with our highly-tuned concept of reconciliation. The most significant of these elements is the concept of "free and informed prior consent." UNDRIP requires governments to obtain "free and informed consent" prior to developing any project affecting (not merely on) lands and territories of Indigenous peoples.6 All lands in Canada, from downtown Toronto, to the remote edges of the Arctic, are the traditional territories of one, and often more than one, Indigenous peoples. UNDRIP also requires that governments seek "free, prior and informed consent" before implementing legislative or administrative measures that may affect Indigenous peoples.7
UNDRIP's focus on free and prior informed consent appears to be generally unworkable in the Canadian context. While negotiation may be effective with a few Indigenous groups, larger projects such as pipelines may be unworkable where even a single Indigenous group objects. Similarly, requiring that any general legislation first receive the consent of Indigenous governments risks making Canada's democratic process unworkable and appears to be inconsistent with the general principles of Canadian federalism. Under the Constitution Act, 1867, governance powers were divided between federal and provincial governments. While courts have allowed both levels of government to regulate the same area, the SCC has been clear that conflicting regulation will be inoperative against the authorized government's regulations.8 Allowing Indigenous governments to veto (the effect of requiring the consent of all Indigenous peoples involved) laws and projects regulated by either the federal or provincial governments creates an overlap of authority unintended and incompatible with the principles of federalism developed over the past 150 years.
Interestingly, and suggestive of the global context in which UNDRIP was developed, while UNDRIP provides Indigenous peoples with a general veto power over legislation and economic activity, it provides only one justification for unapproved activities in Indigenous territories: military activities.9 Other than a requirement to undertake consultation, UNDRIP provides no constraint on the conduct of military activities in Indigenous territories.