Grits setting themselves up for failure
Canada’s Indigenous people continue to suffer from many injustices, not least those legislated by the Indian Act. The promise to legislate the United Nations Declaration on the Rights of Indigenous Peoples is likely to prolong that suffering.
The Liberals committed to legislating the Declaration in 2015. Some observers wondered at the time whether Liberal Leader Justin Trudeau had read it.
Unsurprisingly, that election promise, like many others, was not kept. Undeterred, the government has upped the ante in 2019, providing dozens of promises to Canada’s Indigenous peoples.
They include: “We will take action to implement the United Nations Declaration on the Rights of Indigenous Peoples in the first year of a new mandate … introducing co-developed legislation to implement the Declaration as government legislation by the end of 2020.”
On Dec. 4, Crown-Indigenous Relations Minister Carolyn Bennett reiterated the promise to get legislation introduced in 2020 in partnership with Indigenous representatives.
From a distance, this looks like an impossible task. The Declaration is so broad that many of its clauses can mean whatever you want them to. We will look at just two of the problematic topics raised in the 3,800-word Declaration.
ARTICLE 19
States shall consult and co-operate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
By what mechanism is it deemed that consent has been given? Is it by a national or provincial assembly, or by each of the 600-plus bands, some of whom have only a few dozen members? What happens when some bands strongly support a project while others oppose?
None of these questions has an easy answer.
ARTICLE 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired …
ARTICLE 27
States shall establish and implement … a process to recognize and adjudicate the rights of Indigenous peoples pertaining to their lands, territories and resources …
ARTICLE 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Taken together, these statements assert that ownership of lands traditionally occupied by Indigenous people will revert to them. If now occupied by others, they will have to vacate unless the government buys back their property.
How do the participants establish who was fishing, hunting or gathering berries in what territory during the last 10,000 years? What happens if more than one group lays claim to the same territory? What is the potential cost to taxpayers of buybacks?
Again, these questions are not easy to answer.
Beyond that, who is authorized to speak on behalf of Canada’s Indigenous peoples? I asked the Crown-Indigenous Relations Department how Indigenous representatives would be chosen. The department declined to answer that question. Their reply: “The process for co-developing legislation has yet to be determined.”
Perhaps those negotiating on their behalf will adopt a pragmatic approach that makes it possible to reach an agreement. If so, might a dissident group break away and insist on separate discussions?
As noted in this space two years ago, then Justice Minister Jody Wilson-Raybould, a former regional chief of the B.C. Assembly of First Nations, acknowledged the problems. Speaking to the Assembly of First Nations (AFN) general assembly in December of 2017, she said: “Simplistic approaches, such as adopting the United Nations declaration as being Canadian law, are unworkable.”
There is an additional problem in British Columbia, where the government has passed legislation ordering itself, in consultation and co-operation with the Indigenous peoples in B.C., to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.”
What will happen if the federal and provincial initiatives reach incompatible conclusions?
At least B.C. was wise enough to not stipulate a deadline for completion.
On its website, the government of Canada has this to say about the many unsuccessful efforts to amend the Indian Act, by comparison with legislating UNDRIP a much narrower task: “There is no clear consensus on a way forward on large-scale, comprehensive change to the Indian Act ... Indeed, while the majority of First Nations view the Indian Act as archaic and paternalistic, there are some First Nations that would like to maintain some of its elements. Others would like to see it abolished altogether in favour of implementing their inherent right of self-government and treaties.”
A process that promises to be enormously complex and fraught with obstacles is still some distance from the starting line. By promising to get it done in a year, the government sets itself up for failure and further prolongation of the injustices to Canada’s Indigenous peoples.