part 2 is here

PART 3:  Enshrining UNDRIP Into Canadian Law Would Do More Harm Than Good

If UNDRIP had been declared 50 years ago and approved by Canada then, it might have given Indigenous Canadians some new and beneficial rights. But Canadian aboriginal law and policy is past that now, and is actually ahead of UNDRIP. Why take a step backwards? The best thing to do with UNDRIP is to forget it.

The main reason why so many Canadian journalists and politicians have praised UNDRIP and sought its enshrinement into Canadian law is because they have misunderstood it.  They wrongly believe that it requires governments to secure the “free, prior and informed consent” of Indigenous people in a number of situations, including before giving the green light to resource projects.  If they understood that UNDRIP does not require this, and provides nothing new of benefit to Canadian Indigenous peoples, their enthusiasm might be considerably reduced.

UNDRIP [Text here  ] is not a law. You can’t make a non-law into a law simply by announcing that you have done so. To try to enshrine UNDRIP into law requires much more than legislation that says in effect “UNDRIP is hereby the law of Canada.” 

UNDRIP is a good source of inspiration to appropriate action.  It is not a good source of Canadian law.

UNDRIP is an eloquent declaration of certain general principles of fairness that are desirable for nations to begin to apply, if they have not already done so.  UNDRIP is also necessarily vague because its principles have to be interpreted and applied in harmony with the existing laws of the 100+ UN member countries.   

UNDRIP’s 46 articles declare the desired rights of Indigenous peoples around the world, not as a law but as “a standard of achievement to be pursued in a spirit of partnership and mutual respect”.  It would be complex and time-consuming to attempt to “enshrine” UNDRIP into Canadian aboriginal law.  Yet it would inevitably create fresh uncertainty in well-settled legal protections for Canada’s Indigenous people. 

To cut and paste UNDRIP into Canadian law would be a step backwards. UNDRIP adds no substantial legal protection to Canadian Indigenous people beyond what is already in Canadian law, both in the constitution and in the aboriginal rights developed by the Supreme Court of Canada in a long line of important cases.

UNDRIP may inspire some countries with little protection for their Indigenous populations to progress from where they are to where they should be.  As Canada is already well on the way, the added confusion of trying to say the same thing in two different ways in two different places creates new legal problems without solving old ones.

Canadian aboriginal law could be a lot better, but it is already as good as or better than most of UNDRIP.  Therefore, to write a new law that is no better, but uses different language than existing law, merely creates confusion.  That confusion will generate years of costly, disruptive litigation to resolve.  To try to minimize this, Canadian governments will have to take UNDRIP apart and decide what to take and what to leave.  On issues such as pipelines and similar projects, in my view there is little benefit in taking any part of UNDRIP and enacting legislation based on it.  That is because UNDRIP provides nothing for such projects that Canada’s Indigenous peoples don’t already have. 

The vague language in UNDRIP raises more questions than it answers.  The government’s constitutional duty of consultation has already spawned decades of costly litigation.  Why introduce law with the same intent using new and different language? 

Here are a few of the articles in UNDRIP, with my comments on them:

the right to freedom from any discrimination (Article 2);

This adds nothing to the existing constitutional protections of all Canadians in the Canadian Charter of Rights and Freedoms, as well as in several decades of case law under federal and provincial human rights legislation.

the right to self-government relating to internal and local affairs (Article 4);

Nothing new here.

the rights to life, physical and mental integrity, liberty and security of person (Article 7);

This has been in our Charter for the 38 years since 1982.

These rights (and some others mentioned in UNDRIP) are too well-established in Canada to be controversial, or to require further legislation.

If there is something of major importance in UNDRIP that I may have missed, that we don’t already have and should have, then let’s enact that, without reinventing the entire UNDRIP wheel. But the political impulse to write redundant new “feel good” laws that may do more harm than good should be resisted. Instead, governments should apply our existing laws with greater fairness and compassion, and amend them as necessary.

Why UNDRIP Cannot Literally be “Enshrined” in Canadian Law

UNDRIP is intended to apply to every country on the planet that has Indigenous people, regardless of the languages used in that country.  The meaning of words is sometimes lost or changed in translation from one language to another.  Some of the language in the English version of UNDRIP is unusably vague.  This would require Canadian lawmakers to invent new language, thereby creating new meaning.  When they do that the result is no longer UNDRIP, it is whatever they will have created in its place. They may call it UNDRIP for optics purposes but in reality, it will be their creation, not the UN’s.

For illustrative purposes, I will again set out UNDRIP’s key Article 19, breaking it into smaller parts, and examining some of the serious English language issues raised by the underlined words.

19.          States [i.e. governments] shall consult and cooperate in good faith with the indigenous peoples…

Canada has over 600 FNs. In the 2016 census, there were 1,673,785 aboriginal people in Canada, 4.9% of the total Canadian population.  Does “the indigenous peoples” (note the plural) in UNDRIP require consultation and cooperation with all 600+ FNs, or only some of them?  If not all, how should “some of them” be chosen?  If a large percentage no longer live on their traditional territories but were born in, live in and work in cities, are they, and their children and grandchildren still “indigenous” under UNDRIP? 

Is indigeneity determined by group location and lifestyle or by definitions of race, regardless of where individuals are located? If an Indigenous person moves to Montreal or Vancouver do they still have a right of self-government, and a right to be consulted about anything that may affect their downtown condo, or is that right waived when they leave their traditional territory?

If there is clear disagreement among several FNs about a pipeline or other resource project, with which of them should the state cooperate in good faith, and cooperate how?

UNDRIP doesn’t answer these obvious questions.  Therefore it is up to the government enacting a law to create the answers.  Since the answers to these questions aren’t found in UNDRIP, it isn’t UNDRIP that the government would be enshrining, it is something of its own invention.

[The indigenous peoples] concerned

What does “concerned” mean here?  “Concerned” could be a rough synonym for “affected”.  But the vagueness wouldn’t end there.  There are degrees of being concerned/affected.  Would they have to be directly affected?  Actually affected? Potentially affected?  Significantly affected?   Again, it will be up to the government enacting a law to decide what “concerned” means when it defines or replaces the word “concerned”. 

through their own representative institutions

Which representative institutions?  UNDRIP assumes unanimity. Recently we saw the dispute between the elected and some hereditary Wet’suwet’en chiefs over a gas pipeline that the majority of that FN approved in a vote. Does that vote matter? This highlights the difficulty in deciding which claimed representative institution should be treated as actually representative.  As UNDRIP is silent on this point legal drafters would have to decide how to define a representative institution.

in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures

What is a legislative measure? Is it different from a law? When is an administrative measure newly adopted versus an extension of an existing measure?

What is included in “administrative measures”?  The federal government currently employs about 2 million full-time employees (excluding Postal Service workers).  Many of these employees are engaged in administrative measures, while carrying out their millions of activities under thousands of laws and regulations.  Obviously, “administrative measures” is too broad, and would need to be defined carefully.

that may affect them

“may” is both vague and overbroad.  It may or may not. If it doesn’t affect them why is their consent required?

“affect” does not indicate any degree of affectedness.  It may/may not affect them to a substantial or a trivial degree.  This would need to be defined and limited.

“affect them” opens up a huge definition hole.  Just about every change in Canadian law of any kind will affect Indigenous peoples in the same way as it affects everyone else.  Changes to laws governing highway traffic, lockdowns for pandemic viruses, carbon taxes raising the price of fossil fuels, etc., all “may affect them”.  This would have to be limited somehow, but that somehow is not found in UNDRIP.

Does the administrative measure need to affect “them” in some special Indigenous capacity?  If so, how do we define that special capacity? 

Without legislatures defining specific limits to this language, every new law and every new “administrative measure” of general application that “may“ affect Indigenous peoples no more than any other Canadian would be captured by the overbroad language of Article 19. 

Conclusion  

UNDRIP is a potentially valuable set of ethical principles for countries whose laws are currently being applied so as to discriminate against or severely disadvantage Indigenous peoples.  Canada engaged in such discrimination with enthusiasm from the beginning of nationhood until the latter part of the 20th century, and some of it still exists today.  However, UNDRIP cannot reverse history to correct the effects of historical mistreatment by Canada and other countries. It can only help some countries to do better in future. Of course Canada can also do better in the future, but not by pretending to “enshrine” UNDRIP.

Canada’s constitution (section 35) already protects the existing rights of Indigenous/aboriginal peoples.  Furthermore, Canada now has detailed and strongly enforced human rights laws to prevent unlawful racial discrimination against anyone, including Indigenous peoples.  More particularly, the courts have well-established rules requiring deep and substantial consultation, with a duty to accommodate Indigenous peoples’ needs and interests wherever it is reasonable to do so, consistent with the national interest.  This large body of law has taken decades of costly and divisive litigation to achieve its current degree of relative certainty.  Why go through that again with UNDRIP, when it adds no significant benefit? Canada is ahead of UNDRIP, so why take a step backwards?

In major projects the project developers now understand that it is not enough just to lobby government for approval. Impact benefit agreements for First Nations are now the norm, not the exception.  

But Canada still has a number of serious, unresolved problems in its relations with Indigenous peoples.  These include the passage of several decades with unresolved land or territorial claims, lack of proper water, housing, health care, education and employment on many reserves, just to mention a few of the more serious ones.  There has also been much criticism of our Indian Act, although no government in recent years has proposed significantly amending it or phasing it out.

There is considerable risk of long and costly confusion in layering UNDRIP’s vague, overbroadly-worded general principles, most of which are redundant in Canada, on top of our existing law. Doing this could be a litigation trigger, the main beneficiaries of which would be lawyers.

On the other hand, BC’s proposed action plan, when prepared and implemented, will probably be better than what now exists.  BC’s plan may have excellent results if the actions taken, with proper consultation and cooperation, are desirable and adequately financed (See for example the Province’s Pathways Forward 2.0 Agreement of late 2019 here ). 

However, there was no barrier to creating such an action plan 10 or 20 years ago, as the problems were well documented in the 1996 Royal Commission on Aboriginal People report as well as the proceedings of the Truth and Reconciliation Commission, established in 2008. Therefore, there is no need to try to turn UNDRIP into a set of new laws.  In the unlikely event that BC’s action plan requires any new or amended laws, these can be drafted as necessary. And other provinces may want to follow BC’s example, if they see that it works well. But no one needs UNDRIP to do that.