June 16, 2016 By:

Nelligan O’Brien Payne gratefully acknowledges the contribution of Claire Boychuk, Student-at-Law in writing this blog post.

It has taken a long time for international law to recognize the rights of Indigenous peoples, and even longer for Canada to get on board. But with the Canadian government recently promising to implement the United Nations Declaration on the Rights of Indigenous Peoples, and Cree Member of Parliament Romeo Saganash introducing an historic bill in the House of Commons, we have arrived at a potentially pivotal moment for Indigenous rights.

What is the UN Declaration on the Rights of Indigenous Peoples?

In 2007, the United Nations General Assembly adopted the UN Declaration on the Right of Indigenous Peoples. The Declaration is an ambitious document that recognizes Indigenous legal systems and promotes nation-to-nation relationships between Indigenous peoples and states. It affirms, in the context of Indigenous peoples, a number of already existing rights under various international agreements, but it also places some new and significant rights on the table. For example, Article 26 affirms the right of Indigenous peoples to their lands, territories, and resources. Article 32, meanwhile, requires governments to obtain Indigenous peoples’ free and informed consent regarding resource development on their lands.

UN declarations are not strictly binding, but they can be considered part of the body of international “customary law” that shapes the standards to which countries are held. Since there is still no internationally binding treaty on the rights of Indigenous peoples, the Declaration is the most important statement of international law that exists in this area.

Why did Canada initially oppose it?

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When the UN voted on the Declaration in 2007, Canada was one of four countries who voted against it. The Canadian government said they were concerned about the provisions on lands, territories and resources; free, prior and informed consent; self-government; intellectual property; military issues; the balance between the rights and obligations of Indigenous peoples; and interference with the constitutional rights of other Canadians. 

Canada did not endorse the Declaration until 2010, when it concluded that in fact it could be interpreted so as to be consistent with Canada's Constitution. Even then, the government's support was measured, citing ongoing concerns about the obligation to obtain free and informed consent of Indigenous peoples before pursuing land or natural resource development, which it claimed could potentially give Indigenous peoples a veto against development projects. The government also called the document “aspirational” – in other words, without any legal force.

That position was recently reversed when Carolyn Bennett, Minister of Indigenous Affairs and Northern Development, travelled to the UN to formally withdraw Canada's objections to the Declaration.

What impact could it have on the ground in Canada?

Despite these advances, the UN Declaration on the Rights of Indigenous Peoples does not currently have much influence in Canadian courts. However, Bill C-262, introduced this spring by MP Romeo Saganash, aims to change that. If passed, Bill C-262 would require the Canadian government, in consultation with Indigenous peoples in Canada, to ensure that Canadian law is consistent with the Declaration, and to create a national plan of action to achieve the goals set out within it.

The current political climate looks promising for Saganash's bill. He introduced a similar one under the previous government, but that bill was narrowly defeated. If the majority Liberal government supports Bill C-262 as a show of its commitment to Indigenous rights in Canada, the bill could become the law of the land.

If the bill passes, it could expand the scope of the Indigenous rights recognized in this county. Canada's laws have been criticized for being too paternalistic, too focused on ancient practices and settlement patterns, and for ignoring modern Indigenous perspectives and neglecting the role of Indigenous social, legal and political systems in the national fabric. By passing Bill C-262, Parliament would signal a commitment to improvement.

At the same time, claims that the Declaration could shatter Canadian sovereignty are vastly overblown. Under Canada's legal system, the Declaration and any law that implements it would be subject to the limits of the Constitution. Its implementation would involve substantial consultation with Indigenous peoples in Canada, but the decisions would ultimately be made by Parliament, which would apply its own interpretation of terms like “free and informed consent”. If anyone disagrees with Parliament's choices, they would have to take the matter to a Canadian court that operates within the constraints of Canada's legal system.

The new-found respect for the UN Declaration on the Rights of Indigenous Peoples will not change the relationship between Canada and Indigenous peoples overnight. It is, however, a meaningful and powerfully symbolic gesture that could lead to real changes in decision-making if it gains recognition in Canadian law.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Indigenous Law