Globe and Mail Op-Ed: What Canadians should understand about the federal UNDRIP bill
The following Opinion piece was published on December 7, 2020, in the Globe and Mail by Brenda Gunn, an Associate Professor at the Faculty of Law, University of Manitoba.
Brenda Gunn is a citizen of the Manitoba Metis Federation and a professor at the University of Manitoba’s faculty of law. She has been researching and working on the international human rights of Indigenous peoples and constitutional law for more than 15 years.
On Dec. 3, the Liberal government tabled Bill C-15, an Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), fulfilling their election promise to introduce such legislation by the end of 2020.
This is the second attempt to clarify any misunderstandings about the application of the UNDRIP in Canada. The previous effort, Bill C-262, was introduced by NDP MP Romeo Saganash, but the bill died in the Senate when it rose before completing final reading in June, 2019.
During the prolonged debate over Bill C-262, there was unfortunate fearmongering that suggested that UNDRIP introduced uncertainty and concerns about Indigenous peoples’ right to free, prior and informed consent, implying that Indigenous peoples would stop all resource development projects from proceeding. These unfounded concerns highlight the need for a better grasp of what the declaration actually means.
To understand UNDRIP, we should start at the beginning – that is, with the preamble, which compellingly explains the need for a specific human-rights instrument for Indigenous peoples. It starts by affirming that Indigenous peoples are equal to all peoples, and should not be discriminated against for being Indigenous. The preamble goes on to recognize the harms of colonization, especially the removal of Indigenous peoples from their lands, which too often occurs in the name of development projects where Indigenous peoples often receive no real benefit.
The most crucial part, however, is where the UN stated it was “convinced that the recognition of the rights of indigenous peoples in this declaration will enhance harmonious and co-operative relations between the state and Indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.”
Recognizing the rights of Indigenous peoples is the missing component to the peaceful resolution of the challenges we have in Canada, including various protest blockades. The declaration sets new guidelines for the relationship between Indigenous peoples and Canada, one undergirded by the five principles the UNDRIP lists. Implementing the declaration will not introduce uncertainty; rather, by drawing on decades of international human rights law, it ensures that Indigenous peoples continue to thrive as distinct peoples, rather than simply paying the price, environmental or otherwise, for development.
Finally, the preamble reminds us that implementing the declaration must be done in partnership between Indigenous peoples and state governments. And this is where Bill C-15 comes in, especially around developing an action plan, as set out in section 5.
The first and second articles of the UNDRIP reiterate the basics of equality and non-discrimination: fundamental Canadian values, enshrined in our Constitution, that we should all rally behind. When people oppose implementing the declaration, they are opposing efforts to ensure Indigenous peoples enjoy the same fundamental rights to equality and non-discrimination that many Canadians take for granted.
Achieving this equality may require the government to take specific measures to address current inequalities; non-discrimination requires us to celebrate and accommodate the uniqueness of Indigenous peoples, as well.
There are too many examples of Canadian law discriminating against Indigenous peoples. It’s time to work with Indigenous peoples to resolve these challenges, using the baseline human rights recognized in the declaration to guide the work. It’s time to ensure that Canadian laws and policies are consistent with the human rights recognized in the declaration, as set out in Section 5.
Importantly, Bill C-15 includes accountability mechanisms to ensure that Canada’s statements of support for the declaration aren’t simply empty promises, but signs of real action. Section 7 of the bill will require annual reporting to Parliament on measures taken to ensure that all laws and policies are consistent with the UN Declaration, and the preparation and implementation of an action plan.
The focus of the bill is on the concerted and co-ordinated efforts to implement the UNDRIP, but crucially, it also clarifies and affirms that the UNDRIP applies here in Canada. This confirmation, found in Section 4 of the bill, alleviates the uncertainty Indigenous peoples face when raising the UNDRIP in court. But working together to review existing laws and policy and develop an action plan will reduce the need for Indigenous peoples to resort to litigation to gain protection of their rights.
Bill C-15 is a positive step toward realizing Indigenous peoples’ human rights in Canada, and it would help resolve many longstanding issues. Hopefully, this time, we’ll see a bill doing something as uncontroversial as promoting human rights pass into law.