For Dene National Chief Norman Yakeleya, the United Nations Declaration on the Rights of Indigenous People (UNDRIP) confirmed something Canadian governments have been denying for more than a century.
“We had 153 years of denial of rights,” he said. “So we’re coming from a period of denial to a period of recognizing that the Aboriginal people … had a way of life.”
But more than a decade after UNDRIP was first drafted in 2007, that recognition still has no force in Canadian law.
That may be about to change.
Last week, B.C. tabled legislation with the goal of becoming the first province in Canada to “implement” UNDRIP. A few days later, the same language was included in the list of priorities for a newly elected territorial government in the N.W.T.
But what does implementing UNDRIP actually mean?
What is UNDRIP?
UNDRIP consists of 46 articles ratified by the United Nations, recognizing the basic human rights of Indigenous people along with their rights to self-determination.
The declaration includes articles affirming the right of Indigenous people to create their own education systems, receive restitution for stolen lands, and participate in all decision-making that affects their interests.
Canada voted against the declaration at the United Nations when it was first introduced in 2007, but later endorsed it, in 2010.
In 2016, then NDP MP Romeo Saganash tabled an implementation bill that was passed by the House of Commons.
While just a few lines long, the bill gave the declaration the status of “a universal international human rights instrument with application in Canadian law” — “unprecedented language,” in the words of one legal scholar, that could have “unpredictable” implications for constitutional law.
But the bill was stymied in the Senate, and failed to pass before the federal election. That passed the torch, temporarily, to provincial governments.
What does the B.C. bill do?
Like Bill C-262, B.C.’s Bill 41 mandates “action plans” for each government department, and annual reporting on their progress toward fulfilling the rights specified in the declaration.
More importantly, the bill also gives government departments the authority to share decision-making with Indigenous governments.
That removes a significant roadblock to “free, prior and informed consent” as spelled out in UNDRIP.
In the past, Canadian courts have repeatedly affirmed the duty of governments to consult with First Nations before making decisions.
“But when you look at [provincial] legislation, it doesn’t actually empower any of the government decision makers to do that,” said Robert Janes, an expert in Indigenous law with JFK Law in Victoria.
“Government decision makers are often given really strict guidelines” about processes for decision-making, Janes said — and often, they don’t include First Nations.
This bill allows them to change that equation.
“Instead of people inside of government exercising power by themselves,” said Janes, “it will be a First Nations organization … exercising power with a government bureaucrat — and they have to work together in order to do things.”
Does that mean First Nations get a veto?
Shared decision-making doesn’t necessarily mean a veto.
It could mean that just like a union and management share decision making about benefits, working hours, and so on, an Indigenous and public government could share decisions about resources or education policy, for example.
Where that joint decision-making fails, the government can develop means of dispute resolution, to prevent issues from going straight to court.
Importantly, even though UNDRIP was intended as a declaration of rights, the B.C. bill doesn’t make it possible for Indigenous groups to sue the government for failing to honour those rights.
That means progress on UNDRIP will still come at the whim of the government of the day.
“The truth is if governments aren’t committed to actually following through on the processes in this legislation … then this legislation will be hollow,” said Janes.
But Janes and other legal experts say many of the rights in UNDRIP are already protected by Section 35 of the Canadian Constitution, which guarantees treaty rights.
Janes also said many of the groups he works with are more interested in developing the ability to share political decision-making than in establishing new grounds on which to sue the government.
Gwich’in Grand Chief Bobbie Jo Greenland-Morgan agreed. Her tribal council has both a historical treaty with Canada and a modern land claim agreement with federal and territorial governments, and is currently pursuing a self-government agreement.
“We know our rights, and our rights are protected,” she said. “Something like this, we feel, is opportunity to strengthen those rights.”
What could the N.W.T.’s bill do?
If the new N.W.T. government follows through on its promises, the territory will be only the second place in the country to implement UNDRIP.
But the territory and B.C. could not be dealing with more different legal landscapes.
The N.W.T. has two historical treaties — Treaty 8 and Treaty 11 — and a litany of land claim and self-government agreements.
Those agreements set forth their own conditions for consent and for shared decision-making.
“In the Northwest Territories, it’s not a simple process,” said Greenland-Morgan. “There are so many bodies involved.”
Greenland-Morgan said she’d be disappointed if the territory tabled similar legislation to B.C.’s without going through a co-development process with Indigenous leaders.
“If the government really feels that we are the decision-makers, then this is one opportunity here, with the implementation of UNDRIP, that they can show that,” she said. “Otherwise, it’s just words.”
Rylund Johnson, the Yellowknife MLA who oversaw the drafting of the territorial government’s new list of priorities, said he expects the N.W.T. bill will be similar to the one tabled in B.C.
“I think it’s a possibility to give people an actual, you know, judicial right to say that the government isn’t complying with this, but I don’t see that happening,” he said.
Johnson did note that UNDRIP could have big implications for the territory’s remaining unsettled regions. Pursuing final agreements in those areas was listed as the number one priority for the new government.
“If what that clause does is to move the needle so that the default position at negotiating tables is yes, we will eventually devolve these powers to you, then I think that’s a win for everyone,” said Johnson.
UNDRIP’s broad language means a lot could be on the table in any negotiation over implementation.
“There are other provisions in the declaration that provide for things like restitution and compensation for lands that have been taken,” said Kate Gunn, a lawyer with First Peoples Law. “There are other really important rights in there.”
For Yakeleya, the Dene National Chief, whatever the bill looks like, recognizing the rights of the declaration could be a “wakeup call” for all levels of government.
“It took 153 years to get to this step,” Yakeleya said. “UNDRIP may be the wakeup call that we all need.”