Tansi Nîtôtemtik,
The current state of the relationship between Indigenous people and the Canadian government is a result of many factors, including assimilation programs, the implementation of the Indian Act, and the Crown’s failure to uphold Treaty promises.[1] The Crown saw the Treaties as a legal instrument through which Indigenous people surrendered lands, whereas some Indigenous groups perceived the Treaties as commitments by both sides to live peacefully together.[2] Crown officials justified colonial sovereignty over Indigenous people through the Doctrine of Discovery and their racist beliefs of settler superiority.[3] The Doctrine of Discovery is a self-serving law created by Europe to legitimize its assertions of power over Indigenous people. Canadian constitutional and legal doctrines were founded on these assumptions of sovereignty and superiority and continue to undercut the relationship between Indigenous people and the Canadian government today.[4] Repairing the damaged relationship between Indigenous people and the Crown will require reshaping Canadian society socially, politically, and economically.[5]
In its final report, the TRC expresses a need for a “new [Royal Proclamation] that reaffirms the long-standing, but often disregarded, commitments between Canada and Aboriginal peoples. The proclamation would include an official disavowal of the Doctrine of Discovery and commitment to the full implementation of the United Nations Declaration.” We first discussed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in our October 30th post. To recap, UNDRIP was adopted by the United Nations in 2007 to preserve the rights that “constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.”[6] UNDRIP also affirms that “all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust”.[7] Nations can not fully implement UNDRIP without first disavowing historical doctrines and policies that underlie all present day legal and constitutional dealings with Indigenous people.
Canada officially adopted UNDRIP without qualification in 2016, however this adoption is purely aspirational. Unfortunately, UNDRIP is not a binding treaty or convention, and there are no consequences for nations that do not follow its provisions.[8] State rejection of the Doctrine of Discovery and implementation of UNDRIP are both necessary steps to eliminate the presence of colonialism in Canada’s contemporary constitutional and legal doctrines.
Two Calls to Action speak specifically to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Calls 43 and 44 state:
43) We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
44) We call upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.[9]
There have been some attempts to implement UNDRIP legislation by both Federal and Provincial governments. In 2016, former MP Roméo Saganash introduced Bill C-262 to Parliament.[10] The Act aspired to ensure that UNDRIP would be used by the judicial system to interpret and inform statutes, regulations and constitutional doctrine.[11] Unfortunately the Bill did not pass the Senate prior to the 2019 federal election.
A federal environmental assessment law implemented in 2019 references UNDRIP. Bill C-69 references the government’s commitment to implementing UNDRIP, and provides greater opportunities for Indigenous consultation and engagement.[12] However, there does not appear to be room for Indigenous groups to unilaterally modify or stop projects, even if an unacceptable infringement of their rights will occur.[13] This does not align with the UNDRIP provisions related to Indigenous self-government and autonomy.[14] At most, this is a guarded change that leaves ultimate decision-making power with the Crown.
The current federal government is actively working to adopt UNDRIP into legislation. Unfortunately, leaked text of the new UNDRIP Bill has been criticized as being “unacceptably vague and noncommittal”.[15] Rather than following an “action-oriented approach”, the new legislation would introduce “a broad and ill-defined set of promises and commitments” that would require interpretation by the courts.[16] This does not meet the threshold of “concrete measures” laid out by the TRC.
On the provincial level, one government has successfully passed UNDRIP legislation: British Columbia. The Declaration on the Rights of Indigenous Peoples Act received Royal Assent on November 28, 2019.[17] Relevant to Call 43, section 3 of the Act states:
In consultation and cooperation with the Indigenous peoples in British Columbia, the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.[18]
A current legal title claim will put this new Act to the test. In a case launched in 2017, the Nuchatlaht Nation claims legal title to territory on the north of Nootka Island, just off the west coast of Vancouver Island.[19] The claim has not yet been heard in court, however, representatives for the Nation have revealed that the provincial government has raised the defence of abandonment, meaning they are arguing that the Nation lost their territorial rights by not consistently occupying their lands.[20] Jack Woodward, lawyer for the Nuchatlaht, says that substantial written records indicate that the Nuchatlaht were forced off their territory without compensation,[21] which undermines the province’s argument that they voluntarily abandoned their territory. In addition, the province’s claim appears to be inconsistent with Article 8(2)(b) of the B.C. Act, which states:
States shall provide effective mechanisms for prevention of, and redress for:
(b) Any action which has the aim or effect of dispossessing [Indigenous people] of their lands, territories or resources[22]
We will have to wait and see how the Nuchatlaht land claim plays out in court. Until then, it is up in the air whether British Columbia has truly implemented UNDRIP as their framework for reconciliation.
For Call 43, we assign a grade of “D-” in recognition of the federal government’s adoption of UNDRIP and B.C.’s adoption of UNDRIP legislation. The federal government receives an “F” for Call 44, as it has consistently failed to develop any concrete measures or action plans to implement UNDRIP in Canada. All levels of government need to put more effort into adopting and implementing UNDRIP as the framework for reconciliation.
Until Next Time,
Team ReconciliAction
[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 184 [TRC].
[2] Ibid.
[3] Ibid at 191.
[4] Ibid.
[5] Ibid at 184-185.
[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/295 (2007), art 43 [UNDRIP].
[7] Ibid, annex.
[8] TRC, supra note 1 at 86.
[9] Ibid at 191.
[10] Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2016.
[11] Ibid, cl 4.
[12] Canada, “Key Amendments to Bill C-69” (Ottawa: Canada, July 31, 2018), infographic, https://www.canada. ca/content/dam/themes/environment/conservation/environmental-reviews/infographic-amendments-indigenous-en.png.
[13]David V. Wright “Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists” (27 February 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/02/Blog_DVW_Indigenous_IAA.pdf.
[14] UNDRIP, supra note 6, art 4.
[15] Ken Coates & Heather Exner-Pirot, “Opinion: UNDRIP is not a threat to Canada; the implementing legislation is”, National Post (21 October 2020), online: https://nationalpost.com/opinion/opinion-undrip-is-not-a-threat-to-canada-the-implementing-legislation-is
[16] Ibid.
[17] Bill 41, Declaration on the Rights of Indigenous Peoples Act, 4th Sess, 41st Leg, British Columbia, 2019 (assented to 28 November 2019) [Bill 41].
[18] Ibid, s 3.
[19]Nuchatlaht, “Land Title Claim”, online: http://www.nuchatlaht.com/land-title-claim.html.
[20] Judith Lavoie, “B.C. argues Nuchatlaht Nation ‘abandoned’ its territory. Lawyer reminds court ‘land was stolen’”, The Narwhal (25 November 2020), online:https://thenarwhal.ca/bc-nuchatlaht-title-case-undrip/.
[21] Ibid.
[22] Bill 41, supra note 16, art 8.
