Canada’s relationship with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has always been uneasy, but the passing of Bill C-15 in June of 2021 has made its implementation in Canada imminent. From this date, the Canadian government had two years to produce an action plan that would make Canadian law compliant with the 46 articles of UNDRIP. Despite passing the Senate by a vote of 61-10, with nine choosing to abstain, Bill C-15 has found opposition within Canada’s natural resource sector, which fears the implications of free, prior, and informed consent (FPIC) for future and ongoing development projects. Their concern is warranted, for adhering to UNDRIP demands far reaching reform of Canadian law that will redefine Indigenous-State relations and how development occurs on Indigenous lands.
The struggle to have UNDRIP passed was hard-fought – the final edition took over 20 years to draft, undergoing multiple revisions from its initial drafting in 1994 to accommodate the interests of member states. Clauses such as Article 3, which affirms Indigenous Peoples rights to self-determination, prompted anxiety from member states, who feared it could undermine their territorial sovereignty and give rise to an insuperable wave of secessions.
When UNDRIP was adopted by the UN General Assembly on September 13th 2007, Canada was one of the four countries to oppose the declaration, alongside its long-standing allies: the United States, Australia, and New Zealand. Canada’s ambassador to the UN at the time, John McNee, claimed that the wording of the declaration was “overly broad”, and that it could potentially open up previously settled land claims. However, the “settled” nature of such claims is highly contested, given that 95% of British Columbia is on unceded territory, and that treaties signed between Indigenous nations and the Crown were not negotiated in good faith. Minister of Indian Affairs and Northern Development Chuck Strahl also vocalized discontent at the lack of clear guidelines for implementation, while arguing that the Canadian Charter of Rights and Freedoms already protects the rights of Indigenous Peoples in Canada. He further claimed that the Harper government was making a real difference in the lives of Aboriginal Peoples, rather than embracing “empty promises and rhetoric”. This stated impact is undermined, however, by the fact that under the Harper administration, nearly half of all children in foster care were Indigenous, almost a quarter of Indigenous children lived in poverty, and over 90 First Nations communities lacked access to clean water.
In 2010, the Harper government aspirationally endorsed UNDRIP, claiming it was an important milestone to strengthening Indigenous-State relations and the protection of Indigenous Peoples rights. As a champion of human rights in foreign policy, Canada’s initial opposition to UNDRIP was a stain on its international reputation. Endorsing the declaration was therefore inevitable from a public relations perspective, but the implementation of UNDRIP would be the true tell of Canada’s commitment to reconciliation. Nevertheless, nominal support for the declaration remained unsubstantiated by policy that could meaningfully address violations of Indigenous rights. The Harper government, and many representatives within the government today, have justified this lacklustre stance through the assertion that UNDRIP is non-binding. However, Indigenous activists argue that the principles of UNDRIP are enshrined in international law and human rights treaties that Canada is signatory to.
During his 2015 electoral campaign, current Prime Minister Justin Trudeau vowed to adopt the declaration and end all boil water advisories on First Nations reserves within five years of his appointment. As promised, UNDRIP was formally adopted by his government in May of 2016. The implementation of UNDRIP was first brought to the House of Commons by Cree lawyer and NDP Member of Parliament Romeo Saganash in April of 2016. Bill C-262 was widely supported in Parliament but failed to pass a third reading in the Senate before it adjourned for the summer. When the bill timed out, many Indigenous rights activists, including Saganash himself, claimed that it showed the Canadian government’s lack of commitment to UNDRIP. Nevertheless, Saganash’s bill became the basis for Bill C-15, which was introduced by Justice Minister David Lametti in 2020 and passed in June of 2021.
On June 21st 2023, the federal government released its draft action plan, consisting of 181 measures to make Canadian law consistent with UNDRIP. It came under fire from a variety of Indigenous voices, who claimed that the government’s consultation with Indigenous Peoples was insufficient and that the action plan’s “noncommittal language” undermined the power of the declaration. Such critiques highlight some of the competing priorities of the Trudeau administration. Failure to meet the person two-year deadline would be seen as a lack of commitment to UNDRIP, but consulting with all Inuit, Metis, and First Nations Peoples and achieving a document that satisfies everyone is unrealistic within that time frame. In an open letter to Justice Minister David Lametti, the Congress of Aboriginal Peoples denounced their exclusion from the drafting process and claimed that consulting and cooperating with Indigenous Peoples is not enough. Consultation with Indigenous Peoples has historically been conflated with obtaining their consent. Yet merely consulting First Peoples while drafting legislation that directly affects their rights and status in Canada is but a colonial negation of their sovereignty and right to self-determination.
Finally, the use of vague, non-actionable language shows the tension within Trudeau government’s policy, which seeks to be perceived as a champion of Indigenous rights without alienating the business community. At the core of this tension is the debate over FPIC, for this threatens the way development occurs in Canada. The Canadian government has long allowed extractive development projects to occur on Indigenous lands without first nations’ consent, putting it in violation of Article 32 of UNDRIP, which stipulates that states must obtain free, prior, and informed consent for any project that affects Indigenous lands, territories, or resources. The perception that this clause endows Indigenous communities with a veto power over any development that occurs on Indigenous lands is why much of Canada’s business community and the Conservative Party of Canada have long opposed the implementation of UNDRIP. They believe that layering UNDRIP over Canadian constitutional law will bring chaos and grind Canada’s economy to a halt. At its most radical interpretation, Bill C-15 demands an overhaul of the way natural resource extraction is executed on Indigenous lands, while other articles of UNDRIP affirm that states must provide mechanisms of redress for what was taken, occupied, used, or deprived through the failure to obtain FPIC. The reactionary fear of what FPIC means for Canada’s status quo is rational, for its most expansive interpretation could end the modus operandi that treats Indigenous land rights as subordinate to corporations’ rights to extract. Lack of concrete language in Ottawa’s action plan can therefore be seen as a way to weaken UNDRIP’s power within certain industries. Even as the Trudeau government wants to champion the declaration’s implementation, so too does it fear the economic implications of FPIC and the pushback it will garner from certain sectors of Canadian industry.
Much is resting on the shoulders of Bill C-15. How UNDRIP is implemented has great implications for development and Indigenous-State relations on this shared land. The calls for expediency over its implementation echo frustrations over Canada’s inability to recognize and affirm Indigenous rights, but more important than its timely implementation is the need to develop an action plan that wholly affirms said rights and paves the way for a future free of settler colonialism.
Edited by Jamie Silverman
Clio is in her fourth year at McGill, majoring in Honours International Development and minoring in Hispanic Studies and Social Studies of Medicine. As a staff writer for Catalyst, she most enjoys writing about social movements, political violence, Indigenous rights, and feminism.