Minister Carolyn Bennett’s office recently responded very carefully to questions posed by Northern Public Affairs regarding the federal government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Natural Resources Minister Jim Carr also recently stated that the federal government is working on a “Canadian definition” of UNDRIP. What exactly does this mean and what should we expect? Looking closely, we can see the federal government telegraphing its approach.
First, it is important to understand that the UN Declaration is an international legal instrument borne out of decades of deliberation between states and Indigenous Peoples. UNDRIP sets out “the minimum standards for the survival, dignity, and well-being” of Indigenous Peoples, including the much discussed standard of free, prior, and informed consent (FPIC). While the specific contours of FPIC are the subject of much discussion, there is no doubt that it is intended to uphold Indigenous Peoples as decision-makers in their own lands in accordance with their own political and legal traditions.
The standard is only to seek and not actually obtain the consent of Indigenous Peoples who prove their Aboriginal title. If a government cannot obtain consent then it can simply continue on with business as usual if it can be justified under a loosely defined legal framework.
Now, let’s take a look at the current (impoverished) state of Canadian law. Canadian courts have held that the UN Declaration is not legally binding on Canada. Instead, as a result of the constitutional protection offered by section 35 of Canada’s constitution, federal and provincial governments have a duty to consult and accommodate Indigenous peoples when considering actions that might adversely affect their Aboriginal and/or treaty rights. When a government fails to meet this duty, the recourse is simply more consultation. Not surprisingly, then, this standard has failed to provide Indigenous Peoples with meaningful and lasting protection from ongoing dispossession.
The legal requirement to seek consent only arises in Canadian law where Indigenous Peoples have established Aboriginal title over their territory. Due to the prevailing Canadian myth that most treaties extinguish Aboriginal title coupled with the bizarre burden on non-treaty Indigenous Peoples to spend millions of dollars to prove they have existed in their territories, the legal requirement under Canadian law to seek consent is limited to approximately 1,900 square kilometers in the interior of British Columbia for which the Tsilhqot’in Nation were awarded a court declaration of Aboriginal title after two decades in court. Even then, the standard is only to seek and not actually obtain the consent of Indigenous Peoples who prove their Aboriginal title. If a government cannot obtain consent then it can simply continue on with business as usual if it can be justified under a loosely defined legal framework. Your guess is as good as any judge’s as to what might serve as sufficient justification to infringe upon Aboriginal title proven to be held by Indigenous Peoples.
Let us also consider the constraints on the federal government by the constitutional division of powers. The federal government holds authority over some items that are relevant to the implementation of the UN Declaration, such as pipelines, fisheries, and reserve lands. However, it is the provinces and territories that for the most part hold authority over lands and natural resources in Canada.
Lastly, let us take a look at what Minister Bennett has said about FPIC, both recently and in the past. On the question of FPIC, Minister Bennett’s office recently articulated its interpretation as a requirement to seek rather than actually obtain consent and as corresponding “significantly” with the existing duty to consult and accommodate. Similarly, back in 2015, Minister Bennett stated that FPIC is “not dissimilar to the legal duties already imposed.” When pressed for a definite answer this past March on whether she considered FPIC to already be Canadian law, Minister Bennett simply responded that she will work to help others understand what FPIC “looks like and feels like.”
Taken together, this begs the question: What, if anything at all, can we expect to be different from the status quo that treats Indigenous Peoples as mere stakeholders rather than decision-makers in their own lands? After we answer this question, maybe then we can move on to the many other “minimum standards” in the UN Declaration, such as the requirement for states to provide restitution to Indigenous Peoples for all lands and resources previously dispossessed. The federal government might need a truly “historic” budget for that one. More likely, though, the result will be something that “looks like and feels like” an all too familiar “Canadian definition” of justice.◉
Photo: Chilkoot Lake, part of the Tsilhqot’in Nation’s traditional territory in B.C. Credit: Neal Mauldin (CC)
*This article represents the author’s general commentary and should not be relied on as legal advice.