UNDRIP: the start of a new era for Canada?

The concrete nature of the Declaration

On September 23, at the opening of the new parliamentary session, the Governor General will deliver the Speech from the Throne. In it, the government should discuss the integration of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into the country's laws. However, UNDRIP remains a hot potato between indigenous peoples and the Canadian government.

Marlene Hale, a member of the Wet'suwet'en Nation who has lived in Quebec for several years, is not very enthusiastic about the Throne Speech. “[The Prime Minister] needs to come out of hiding and do the right thing. He wore our clothes, he ate our food, he sat with our chefs and he lied to us,” she said of Justin Trudeau's decision to give the green light to the expansion of the Trans Mountain pipeline.

“UNDRIP is first and foremost about recognizing that we are human beings — and that we are peoples. We have peoples' rights — fundamental rights to land and natural resources,” explains Kenneth Deer, a member of the Kahnawake community who has worked on this declaration since the very beginning and has served as a co-chair of the United Nations Indigenous Caucus. According to him, its implementation could improve the lives of indigenous peoples in Canada by giving them sovereign rights — which would be in contradiction with the current Indian Act. “On the Mohawk territory of Kahnawake, that would mean an economy based on the resources of the earth and the sharing of these resources to develop that economy and the services necessary for the proper functioning of the Mohawk Nation.”

“We are not asking to govern everyone in our territory — it extends from Tiohtiake to New York State and to the northern shores of Lake Ontario — but to exercise our autonomy and apply our laws so that we can live well together, from nation to nation,” he adds. We recognize Canada's right to self-determination. We want the same rights.”

With regard to the implementation of UNDRIP, Mr. Deer believed that it could lead to real change. But he is afraid that applying it will change its profound meaning. The continued oppression of Indigenous peoples by existing Canadian laws and policies does not allow him to believe that UNDRIP will be implemented in good faith. For his part, Emilio Wawatie, a young hunter and member of the Rapid Lake community, believes that UNDRIP can have a positive impact on him and his community, as well as on relationships between occupants and Indigenous peoples.

“We want to be heard. We want to be respected,” says the hunter from the Anishinaabe nation, whose territorial rights and resources are under dispute, in all simplicity.

Finally, according to Eriel Deranger, director and founder of Indigenous Climate Action, the Declaration has the potential to act as a guide for governments, especially for all issues relating to resources and territory, for the benefit of future generations.Canada currently has third-party interests with corporations, particularly in the files of the Trans Mountain pipeline, the Site C dam and various liquefied natural gas projects. quefied (LNG). The climate justice activist believes that this places the government in a conflict of interest in relation to Indigenous land rights.

“There are corporations with which Canada has long-standing interests. The country has agreements and commercial relationships that it considers to be unbreakable. And we have a long-standing relationship with our territory, recalls Ms. Deranger. It is no longer simply an issue of territorial control, it is a question of survival for our communities, cultures, languages and traditions — because these are deeply linked to our places of origin.”

‍

Specific consequences on land and resources

‍

The relationship between Aboriginal rights and hydrocarbon exploitation in Canada essentially involves laws affecting the territory. Territorial disputes — from the Wet'suwet'en case to the Site C dam project, to the Muskrat Falls power plant in Labrador, and to LNG projects — highlight the determination of governments to pursue large-scale projects on Indigenous territories and to impose development policies that are at odds with the well-being and interests of Indigenous communities. British Columbia adopted UNDRIP in November 2019.

Last February, the hereditary chiefs of the Wet'suwet'en Nation in British Columbia asserted their authority by blocking access to Coastal GasLink pipeline workers on their unceded territory. In response, an injunction from the Superior Court of British Columbia resulted in the deployment of the RCMP and its armed intervention against Indigenous resistance camps, an intervention that prompted a wave of sympathy blockades across the country and slowed the functioning of several sectors of the Canadian economy.

On May 14, Canada, British Columbia and the Wet'suwet'en hereditary chiefs signed a Memorandum of Understanding recognizing the indigenous rights and title of the Wet'suwet'en Nation. British Columbia has also adopted the Bill 41 on UNDRIP, article 32 of which states that the State must “obtain the prior, free and informed consent” of indigenous peoples before the approval of any development project on their territory. On this point, however, Kenneth Deer remains cautious.

“Canada can intervene in these territories if it believes that it is in Canada's best interest. The protocol agreement is not an absolute protection of the territory,” he recalls. Russ Diabo, a member of the Mohawk Nation and First Nations political analyst, agrees. “UNDRIP is a declaration, not a convention.

It does not have the force of law, but rather serves as an inspiration for the government — which is not very reassuring.” For him, this can only mean one thing: “Canada is trying to domesticate indigenous peoples and international law, in order to act in violation of international rights.”

‍

What is Canada really doing?

‍

One mandated search by the Assembly of First Nations established that the majority of Canadians support the Government of Canada taking legislative action to implement UNDRIP.

According to the press secretary to the Minister of Justice, the Government of Canada is committed to advancing the rights of Inuit, Métis and First Nations.

“As we work together on the path of reconciliation, we are committed to introducing legislation to implement UNDRIP by the end of 2020, working closely with national indigenous organizations,” the government responded to our interview request.

Despite Ottawa's apparent good faith, Indigenous experts and leaders are not convinced. Roméo Saganash, a Cree lawyer and politician, worked for nearly four decades on the development of UNDRIP. He introduced Bill C-262 in 2018, when he was the Member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou, on the implementation of the Declaration in Canada. This bill died on the Senate Order Paper. “I sat in the House of Commons for eight years, and the rights guaranteed by the Declaration are constantly being challenged by our own parliamentarians. We need to emphasize that indigenous rights are human rights,” he explains.

Today, the former federal deputy would like to be able to offer his comments to the parliamentary committee responsible for the implementation of UNDRIP.

‍

1. Saganash believes that the Indigenous rights enshrined in the Declaration are not recognized as human rights by the Government of Canada. “The price of freedom and Indigenous rights is our vigilance,” he continues. Canada does not respect the rule of law. The rule of law does not mean sending the police to remove a barricade. The rule of law is the respect and maintenance of constitutional law.”

‍

This position is in part shared by Kenneth Deer, who says he is worried “about institutionalized racism” in a country that is preparing to implement UNDRIP. “This is sometimes reflected in language and attitudes. There is a huge bureaucracy that is used to oppressing Indigenous people, and that oppression is based on feelings of racial superiority.”

‍

And in Quebec?

‍

^{In Quebec, communication is simply not happening, even though the Government of Quebec and the Assembly of First Nations of Quebec and Labrador say they are reaching out to each other.} It is therefore difficult to predict how things will unfold. Recall that the National Assembly adopted a motion in favor of the implementation of UNDRIP in October 2019, but that Prime Minister François Legault said he did not want to give a veto to indigenous peoples on any issue of economic development.

“The Government of Quebec adheres to the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). To give meaning to this Declaration, we must have a common understanding of its content and we will work in collaboration with First Nations and Inuit on this issue,” said Lauréanne Fontaine, the press secretary of Quebec's Minister of Aboriginal Affairs, Sylvie D'Amours. For Ghislain Picard, Chief of the Assembly of First Nations of Quebec and Labrador, the statements by Ms. D'Amours and Mr. Legault indicate that Quebec will leave little room for negotiations in good faith.

“Mr. Legault has already said that there is no question of First Nations having a right of veto. He imagines that the situation of the Wet'suwet'en is a situation specific to British Columbia and that there cannot be similar situations here in Quebec. Obviously, in our opinion, Mr. Legault is in the field. It would be enough for a community that has rights to a territory to block a major project to make Quebec realize that the rights of the Wet'suwet'en are not different from those of several nations in Quebec.”

‍

UNDRIP in Canada: a chronology

‍

Years 1970 : The UNDRIP originated in the late 1970s in the Canadian government's resistance and police repression, as well as in its non-recognition of Aboriginal rights, in violation of the International Covenant on Civil and Political Rights (1976).

‍2007 : As many as 144 countries adopt UNDRIP, but Canada, the United States, Australia and New Zealand oppose it. To clear himself, the Canadian prime minister at the time, Stephen Harper, offered His excuses to survivors of residential schools.

This episode marks the start of the Truth and Reconciliation Commission of Canada process.

‍2010 : The government changes course and decides to adopt UNDRIP.

‍2015: The new Liberal government is calling for the implementation of UNDRIP. The Truth and Reconciliation Commission tabled its report, containing 94 recommendations — including on the implementation of UNDRIP — and found that residential schools in Canada were responsible for cultural genocide.

‍2016: The Minister of Crown-Indigenous Relations, Carolyn Bennett, announced at the plenary session of the UN Permanent Forum on Indigenous Issues that Canada fully supports the Declaration.

However, Russ Diabo and most of the Aboriginal Canadians in the room feel that she contradicts herself by adding that Canada will implement the Declaration in accordance with the Canadian Constitution.

‍June 2019: Bill C-262 by Deputy Romeo Saganash, Cree of Waswanipi, who worked on the Declaration as early as 1984, is dying on the Senate Order Paper.

‍October 2019: The National Assembly of Quebec unanimously adopts a motion in favor of the implementation of UNDRIP.

‍November 2019 : British Columbia passes Bill 41 on integrating UNDRIP into provincial law.

‍February 2020: A crisis erupts after the invasion of unceded Wet'suwet'en territory by the RCMP. This intervention aims to protect the interests of TC Énergie, which owns the Coastal GasLink gas pipeline. Sympathetic blockades are organized across the country, especially in Kahnawake, where the sacred fire lit on this occasion is still burning today.

‍May 2020 : The governments of Canada and British Columbia as well as the hereditary chiefs of the Wet'suwet'en Nation sign a tripartite memorandum of understanding.

‍August 2020: Minister Bennett announces that 2020 will be used to “work to co-develop legislative measures that will enable the implementation of UNDRIP.”

‍September 23 2020 : The issue of implementing UNDRIP should be addressed in the Speech from the Throne.