By: N Olivier Wilson, Social Work Student

VIHRC wishes to reflect upon two pieces of legislation that aim to put the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law.

While the intent of this article is to be informative, our hope is to further inspire British Columbians to promote the project of reconciliation with Indigenous peoples. Passing human rights legislation is only one aspect of ensuring rights are respected in everyday life. Each Canadian has a part to play in protecting and celebrating Indigenous rights.

Below is a short summary of two recent initiatives that impact Indigenous rights in Canada. This summary is by no means the complete picture, and VIHRC encourages our readers to explore the resources provided at the bottom of this article for a more in-depth understanding of the issues surrounding Indigneous rights in Canada.

The UN Declaration and the Indian Act

Adopted by the United Nations General Assembly in 2007, The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) was jointly developed by Indigenous groups and the UN. UNDRIP consists of 46 articles that affirm Indigenous rights and when applied in combination these articles provide a framework for shared decision-making between Indigenous groups and settler governments. Article 4, for instance, states that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” Declarations like UNDRIP are aspirational statements that provide guidance and moral authority, and while UNDRIP provides a framework for future Indigenous-settler relations, the articles must also be written into Canadian law to have any substantial impact.

In Canada, putting UNDRIP into law has been a contentious issue as it directly challenges colonial policies that have aimed to extinguish Indigenous rights. Provinces whose economies rely heavily on natural resource extraction have been cautious to support the implementation of UNDRIP. Article 10 of UNDRIP asserts that Indigenous peoples have the right to free, prior and informed consent when it comes to decision-making within their traditional territories. Ontario, Quebec, Alberta, Saskatchewan, Manitoba and New Brunswick have all been resistant to the federal government bringing forward legislation to implement UNDRIP fearing that Article 10 could amount to Indigenous peoples having the power to veto development projects that impact their traditional territories.

UNDRIP goes against more than a century of government policies that have marginalized the legal status and cultures of Indigenous peoples. It is hard to imagine how fully implementing UNDRIP in Canada could be done without replacing or at least fundamentally revising the Indian Act. Since 1887, the Indian Act has exerted control over many aspects of the lives of Indigneous peoples. The Indian Act to this day sanctions a reserve system which dispossesses Indigenous peoples of their traditional territories and, historically, the Indian Act authorized assimilationist policies like the Residential School system which today is understood as an act of cultural genocide. Though the progress has been slow, both the federal government and the BC provincial government have recently begun to take steps towards translating UNDRIP into Canada law.

Canadian UNDRIP Legislation: the DRIP Act and Bill C-15

On November 28, 2019, the Declaration on the Rights of Indigenous Peoples Act (“DRIP Act”) came into force in British Columbia. The DRIP Act is the first step in the project of assessing and amending provincial laws so they align with UNDRIP. Similarly, at the federal level, the proposed Bill C-15–the United Nations Declaration on the Rights of Indigenous Peoples Act– looks to create a process for federal legislation to reflect the articles outlined in UNDRIP. Both pieces of legislation give government a three year period to create, firstly, a process for evaluating if laws align with UNDRIP and, secondly, a mechanism to ensure the laws are amending through consultation with Indigenous peoples. The hope is that after the three year period, laws will begin to be assessed and amended in a piecemeal fashion until all federal and provincial legislation reflects the articles of UNDRIP.

What the Experts Are Saying: the DRIP Act and Bill C-15

Both the BC DRIP Act and the federal Bill C-15 have been a long time in the making, however, many legal scholars are pessimistic that they will improve the relationship between Indigenous peoples and Canadian settler governments. Bruce McIvor, a UBC law professor, has suggested that both pieces of legislation do not expand the obligations provincial and federal governments have to Indigenous peoples beyond what is already laid out under section 35 of the Constitution. Section 35 protects the inherent rights of Indigenous peoples. However, the Federal government often engages Indigenous peoples in lengthy court battles when they try to exercise their constitutionally guaranteed rights. There are also legal mechanisms framing the Constitution, for instance the Sparrow Test, which allow for Indigenous rights to be infringed upon if they impede “the National Interest”. Evidently, UNDRIP legislation will have to fit within a complicated legal framework in which it is far from the most powerful law. For McIvor, Canadian UNDRIP legislation makes promises to Indigenous peoples but will likely result in little concrete action.

Within BC, Indigenous groups have been frustrated by how the provincial government has offered few opportunities for Indigenous groups to participate in the process of implementing the DRIP Act. Judith Sayers, the Nuu-chan-nulth Tribal Council President, has raised concerns that the BC NDP government has hand selected which Indigenous groups are included in the process of implementing the legislation. Sayer fears that what is ultimately implemented will bear little resemblance to the UN declaration. Many in BC are also pointing to the provincial government’s response to protests against the Coastal GasLink pipeline in 2020. The Wet'suwet'en hereditary chiefs and their allies resisted the development of the pipeline through their traditional territories and in response the provincial government deployed the RCMP to forcibly remove and harass the protesters. Does this use of force reflect the provincial government’s true level of commitment to UNDRIP and shared decision-making?

At the Federal level, legal commentators note that much will be lost in the process of translating UNDRIP into Canadian law. Jeremy Patzer, an Indigenous law expert, has suggested that, through a process of selective endorsement the Canadian government strategically writes down international norms like UNDRIP so that those rewritten norms align with state interests as well as the legal and institutional status quo. At both the provincial and federal level, there is the potential for UNDRIP legislation to reflect political showmanship over substance. Fortunately, Indigneous groups and their allies have been applying pressure so UNDRIP is more accurately translated into Canadian law. There is still the potential for Bill C-15 and the BC DRIP Act to be implemented in ways that improve protections for the inherent rights of Indigenous peoples.

Room For Optimism?

Both the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls identified the implementation of UNDRIP as the best framework for achieving Reconciliation. As the path back from colonization to reconciliation with Indigenous peoples is long, every step, no matter how incremental, is valuable. Implementing UNDRIP in Canada is an important step.

Though there is substantial concern that both Bill C-15 and the DRIP Act will stray from the UN declaration, there is still room for optimism. Bill C-15 provides another imperfect but nonetheless useful tool for Indigenous groups to push for their rights. Section 35 of the Constitution has been increasingly interpreted by the Supreme Court of Canada in a way that establishes and expands the legal definitions of Indigenous rights. Bill C-15 and the Drip Act can positively contribute to how the courts interpret Canada’s obligations to Indigenous peoples.

VIHRC recognizes the potential Bill C-15 and the Drip Act have when it comes to protecting the rights of Indigenous peoples in Canada. Our hope is that this article inspires our readers to reflect upon what they can do to ensure the federal and provincial governments do not stray too far from the 46 articles in UNDRIP. Developing human rights legislation is always a difficult process. However, the work does not stop once the legislation is passed. Every Canadian has a part to play in making sure that UNDRIP is properly reflected not only in legislation, but also in the everyday actions of an inclusive society that respects Indigenous rights and tirelessly works towards reconciliation with Indigenous peoples.

Please keep in mind that the above summary is far from the whole story. For a more in-depth understanding of Indigenous rights and the implementation of UNDRIP in Canada please explore the following resources.