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UNDRIP: Reconciliation, Not Litigation, is the Key

With Canada now supporting the U.N. Declaration on the Rights of Indigenous Peoples, it’s time for dialogue rather than legal arguments, says Oonagh Fitzgerald, of the Centre for International Governance Innovation.

Written by Oonagh Fitzgerald Published on Read time Approx. 4 minutes
Canada officially removed its objector status to the UN Declaration on the Rights of Indigenous Peoples on May 9, 2016.Flickr/arwcheek, CC BY-NC 2.0

With the announcement last week that the Canadian government had withdrawn all caveats on its commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), it is a time to reflect on the work that now needs to be done to reconcile Canada’s Indigenous, Inuit and Metis peoples with the rest of the Canadian population.

The announcement was meant to end years of Canadian official equivocation. But Carolyn Bennett, Canada’s minister of Indigenous and Northern Affairs, seemed to use constitutional language to constrain UNDRIP, when she added that “by adopting and implementing the declaration, we are excited that we are breathing life into Section 35 [of Canada’s Constitution Act of 1982] and recognizing it as a full box of rights for Indigenous peoples in Canada.”

Natan Obed, president of Inuit Tapiriit Kanatami (ITK), a Canadian organization that represents over 50,400 Inuit, took exception to the idea that Section 35, which recognizes and affirms “existing aboriginal and treaty rights,” was a “full box of rights.” Compared to the four brief subsections of Section 35, UNDRIP comprises 24 pre-ambular clauses and 48 articles that detail a vast array of Indigenous rights. Squeezing all of UNDRIP into Section 35 might be a tight fit.

In particular, Obed noted that Section 35’s duty to consult and accommodate has not been interpreted to include a general duty to obtain the free, prior and informed consent of Indigenous peoples on matters affecting them, as is provided by UNDRIP. He suggested instead that Section 35 is “a starting point or reference for moving forward in partnership with the Government of Canada.”

Obed expressed hope that the declaration would move beyond piecemeal, discretionary consultation “to a place where the right of Inuit and other Indigenous peoples to give or withhold our consent, and to thereby exercise our collective right to self-determination, can be exercised.” He was also concerned that the government of Canada made the announcement without first informing ITK about what would be announced or its ramifications for the relationship between the government of Canada and the Inuit people. He expects these conversations to now begin.

Others have focused on the positive symbolism of Minister Bennett’s announcement. The Native Women’s Association of Canada (NWAC) remarked that it “spearheads a positive shift in Canada’s position of the rights of Indigenous peoples” and Assembly of First Nations (AFN) National Chief Perry Bellegarde declared, “Canada’s commitment to work with First Nations to fully adopt and implement the declaration is a crucial step in reconciliation, rebuilding the relationship and honoring the Truth and Reconciliation Commission’s (TRC) calls to action. The U.N. declaration is a framework and an essential tool to guide the work of reconciliation that will move us all forward.”

If UNDRIP is an essential tool to guide the work of reconciliation, we should not allow it to be defined conclusively in constitutional terms. The Supreme Court of Canada has made some powerful rulings about Aboriginal perspective, culture and ancestral practices, Aboriginal title and the Crown’s fiduciary duty toward Indigenous peoples, but it seems risky to leave the UNDRIP implementation to constitutional adjudication.

A better way to implement UNDRIP domestically in a spirit of reconciliation might be to translate and adapt it to Canada’s own Indigenous, Inuit and Metis legal traditions, customs and languages, and begin a conversation to educate all Canadians and adapt laws to give it full effect.

In this regard, Minister of Justice Jody Wilson-Raybould observed that “reconciliation requires laws to change and policies to be rewritten.” Senator Murray Sinclair, the former justice who headed the TRC, considered that it will be important to examine current legislation that impacts traditions, the ability to exercise treaty rights and the nation-to-nation relationship. In that same vein, Metis legal scholar Brenda Gunn recommended the review of all Canadian laws and policies to see if they align with the standards set in the Declaration.

Harmonizing Canada’s laws with UNDRIP will likely be a lengthy process. Adoption of UNDRIP requires Canada to consult with Indigenous peoples on changes to any laws or administrative measures that affect them. Phil Fontaine, the former Assembly of First Nations national chief, has recommended the Northwest Territories’ “collaborative consent” approach to the federal government as a means of implementing a nation-to-nation relationship with Indigenous peoples and addressing the UNDRIP principle of “free prior and informed consent.”

These views align with the legislative bill recently introduced in Parliament by New Democratic Party member Romeo Saganash to implement UNDRIP. That bill stipulates that the federal government “in consultation and cooperation with Canada’s Indigenous peoples, must take all measures necessary to ensure that the laws of Canada are consistent with” UNDRIP and requires annual reports to Parliament.

In keeping with the spirit of reconciliation, this should be a time of national conversation, not legal argumentation. UNDRIP was developed by Indigenous leaders from around the world, including Canada, in the face of persistent political opposition over many years. It has been widely endorsed, and Canada has finally declared that it will adopt it without reservation.

It is time to let Inuit, Indigenous and Metis peoples translate UNDRIP into their legal traditions and languages and let them say, and teach all Canadians, what their versions of UNDRIP mean for Canada. The old habits of litigating or purporting to speak for Indigenous peoples on matters of deep importance, such as climate change, protection of marine and terrestrial biodiversity, protection of coastal and inland waterways and sustainable exploitation of natural resources must end. Thomas King’s “Inconvenient Indians” can be heard in their own voices now, and all Canadian should listen and learn.

The views expressed in this article belong to the author and do not necessarily reflect those of Arctic Deeply.

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