UNDRIP – What Does it Mean for Canadians? By Shirley Dolan

Shirley Dolan
Shirley Dolan

I was surprised to learn, when reading one of the latest Druthers articles, that the Trudeau government had passed Bill C-15 in June 2021. This Bill fully adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

UNDRIP was approved by the United Nations General Assembly in 2007. In 2010, the Harper government endorsed the declaration, calling it an “aspirational document”. Then in 2016, the Trudeau government committed to “fully adopting this and working to implement it within the laws of Canada, which is our charter.” But only two months later, Minister of Justice Jody Wilson-Raybould described the adoption of UNDRIP as “unworkable” and “a political distraction.”  Near the end of 2016, when questioned about the recently approved Kinder Morgan Trans Mountain pipeline, Prime Minister Trudeau stated that Indigenous opponents “don’t have a veto,” directly contradicting previous promises that under his government ‘no would mean no’ for Indigenous peoples when it came to resource extraction and energy infrastructure projects. Others have suggested Trudeau’s position also contradicts the key provision in UNDRIP of the need for governments to obtain “free, prior and informed consent” from Indigenous peoples prior to development. (Narwhal December 12, 2017)

Free, Prior and Informed Consent (FPIC) is a specific right that pertains to indigenous peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It allows them to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.  This is also embedded within the universal right to self-determination. Free, Prior and Informed Consent | Indigenous Peoples | Food and Agriculture Organization of the United Nations (fao.org)

With Bill C-15, UNDRIP became part of Canadian Law. Wilson-Raybould is not the only one to suggest that that the adoption of UNDRIP is unworkable. For example, the UNDRIP Act passed earlier this year in Canada, intends to make Canadian laws consistent with UNDRIP.

Osler, a leading business law firm with offices across Canada and in New York, had this to say: “… in addition to the preamble of the UNDRIP Act affirming UNDRIP as a source for the interpretation of Canadian law, section 4 of the Act affirms UNDRIP as “a universal international human rights instrument with application in Canadian law” The legal implications of this provision are unclear. Canada’s Minister of Justice, the Honourable David Lametti, has said that the Act does not mean that UNDRIP can override Canadian laws, but instead confirms that “we can look to the Declaration to inform the process of developing or amending laws and as part of interpreting and applying them.” The objective, as stated by Minister Lametti, is to recognize existing legal principles, rather than to give the Declaration itself direct legal effect in Canada. In other words, while the Declaration has “application” in Canadian law, it is not intended to establish new legal principles in Canadian law (such as FPIC, to the extent FPIC is inconsistent with existing Canadian law).”  Federal UNDRIP Bill becomes law (osler.com)

The Justice Centre for Constitutional Freedoms (JCCF) submitted a report to the House Of Commons Standing Committee on Indigenous and Northern Affairs entitled Bill C-15: Useless, dangerous, and divisive. Written by JCCF Director of the Board, law professor Bruce Pardy explained with the following points:

  1. Aboriginal law applies different rules to different people based on race, lineage, and culture. That’s a problem that Bill C-15 makes worse.
  2. The existing “duty to consult” is paternalistic, incomprehensible, and unpredictable. Bill C-15 threatens to make this situation worse. Bill C-15 and UNDRIP represent an existential threat to Canada’s resource industry.
  3. Indigenous persons are not permitted to own Aboriginal property. Neither Bill C-15 nor UNDRIP will change that.
  4. Bill C-15 will not reduce Indigenous dependency on the federal government.
  5. UNDRIP prescribes vast and broad collective land rights for Aboriginal people but no property rights for anyone else. Bill C-15 threatens to divide rather than reconcile.
  6. Bill C-15 effectively grants UNDRIP quasi-constitutional status. It will become a standard to which the laws of Canada are to conform.
  7. The intended consequences of Bill 41 in British Columbia foretell what Bill C-15 might mean for Canadians across the country.

Read more about the JCCF report here Federal Bill to adopt UNDRIP is useless, dangerous, and divisive | Justice Centre for Constitutional Freedoms (jccf.ca).

It seems to me that this is another “feel good” action by the Trudeau government which will result in confusion, or worse, years of litigation, with no real benefit to indigenous peoples or to Canada.