Ottawa’s UNDRIP Legislation Draws Criticism From Different Camps

Justice Minister David Lametti makes an announcement about the United Nations Declaration on the Rights of Indigenous Peoples in Ottawa on Dec. 3, 2020. The Canadian Press/Adrian Wyld

The federal government’s Bill C-15 is attracting criticism from a myriad of interest groups on public policy and legislation. Among them are advocates of more action on reconciliation, those wanting more resource sector development opportunities for indigenous communities, and those concerned about erosion of Canada’s sovereignty in seeking its own legislative and policy solutions.

Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is designed to promote and safeguard the rights of indigenous people around the world. The UN General Assembly adopted UNDRIP in September 2007, but Canada voted against it at the time—due to concerns over natural resources and land use.

Canada would officially support the declaration at the UN in 2010, but implementation at home remains elusive. In June 2019, New Democrat MP Romeo Saganash’s private member’s bill on the declaration was thwarted in the Senate, following concerns from Conservative senators that aligning Canada’s laws with UNDRIP could lead to legal and economic consequences.

Bill C-15 is the latest attempt at federal recognition. Bill Gallagher, an indigenous law expert and a critic of the proposed legislation, says UNDRIP “was not designed to support natives who have constitutionally protected rights, Charter-protected rights, and a legal winning streak of over 300 wins.”

“The UN declaration is designed to protect native people in Paraguay and Bolivia and Mexico, who have no safety net,” Gallagher said in a recent interview.

British Columbia was the first Canadian jurisdiction to pass legislation to implement UNDRIP. Like B.C.’s 2019 bill, the federal version contains guarantees for indigenous rights, stating: “This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by Section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

Russell Diabo, a Kahnawake Mohawk Nation member who’s been active in indigenous politics since he was a teenager, argues that by making UNDRIP subject to existing Canadian laws under Section 35, the government is taking away the rights the declaration was designed to recognize rather than expanding them.

“Bill C-15 talks about rights of indigenous peoples but it’s relying on Section 35. The problem with that is we’ve had over 30-plus years of Supreme Court of Canada decisions … [that] said these rights are not absolute, they can be justifiably infringed for valid legislative reasons. So in other words, the ultimate title belongs to the Crown,” Diabo told The Epoch Times, adding that the legislation would lead to more trouble if it were passed.

“If there’s ongoing, distinct indigenous societies there’s going to have to be some accommodation within the Canadian federation of that kind of a recognition. Otherwise you’re going to continue to have increasing land and resource conflicts.”

Diabo says he sees the proposed legislation as an attempt by Prime Minister Justin Trudeau to “jump to reconciliation and bury the outstanding issues, including the truth of how Canada acquired all this land, or the assumed sovereignty of the Crown.”

Resource Development Concerns

Assembly of First Nations (AFN) Chief Perry Bellegarde argued in favour of Bill C-15 on April 13 before the parliamentary indigenous and northern affairs committee studying the legislation.

Of UNDRIP’s 46 articles, No. 19, which affords indigenous groups “free, prior, and informed consent” before a state adopts and implements laws or administrative measures that may affect them, has been viewed as a veto on projects like oil and gas pipelines and hydro transmission.

Not so, Bellegarde told the committee.

“One of the most important rights we have is the right to self-determination. And that is the right to say ‘yes’ and the right to say ‘no,’ and each project should be assessed on its own merits,” he said.

“To me that’s what this bill speaks to—joint decision making, [industry and government] getting involved sooner than later, so you avoid blockades, and you avoid legal battles.”

Last March, Indian Resource Council president and CEO Stephen Buffalo published an article highly critical of the legislation, especially the implication it would have for resource sector development, saying it would bring “grievous harm” to indigenous communities whose economies are heavily reliant on the resource sector.

“Opponents of resource development have weaponized a narrow interpretation of this one provision, claiming that it provides dissident groups within Indigenous communities with the authority to fight projects that actually have broad community support,” Buffalo wrote.

“It will take years for the Canadian courts to define the authority and limits of free, prior, and informed consent. In the interim, the concept is being used freely by environmentalists and anti-development protesters to argue that Indigenous people—and not necessarily Indigenous governments—have the right to shut down projects.”

Potential Impact on Sovereignty

Other critics of the bill include University of Calgary professor emeritus of political science Tom Flanagan, who told The Epoch Times the legislation would encumber future lawmakers, eroding sovereignty from the inside.

“[UNDRIP] explicitly says it should not be read to undermine the sovereignty of any state. … It says it doesn’t support separatism by any group to leave jurisdiction. So it doesn’t directly challenge Canadian sovereignty, but it hollows out one of the attributes of sovereignty, which is the ability to make law,” Flanagan said.

“If the bill passed and were interpreted in a certain way, it will very much limit the ability of any government to arrive at legislative solutions for resource development. And actually for other policies, too,” he added.

“We’ve been talking about resource development, but that’s only a small part where UNDRIP could have an impact. Most of it is connected with all kinds of things—language and education and health care and on and on and on.”

Testifying on April 13, AFN legal counsel Mary Ellen Turpel-Lafond dismissed such criticisms as “fear-mongering,” saying Article 19 “promotes certainty” and it was up to stakeholders like government and industry to “operationalize it in a positive way.”

“The declaration as an international instrument is there to assist us to have a better discussion about the rights of indigenous people under Section 35,” she told the committee.

“There are many first nations across Canada that have fought hard to get their rights affirmed through Section 35 … [so] the idea is not in any way to limit the UN declaration. … We are creating space with this bill to breathe greater life into Section 35.”