Category: Constitution


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?