Overcoming Challenges to Implementing UNDRIP in Canada

By Julia Nowicki

Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law will not be without challenges, and will require both hard-work and great care, said Kerry Wilkins at the Asper Centre’s first Constitutional Roundtable for the 2020/2021 academic year. Held virtually on Wednesday, October 28th, 2020, Wilkins, who is an adjunct professor at the University of Toronto Faculty of Law, presented his upcoming journal article–“So You Want to Implement UNDRIP…”–set to be published in the University of British Columbia Law Review in the near future.

UNDRIP was adopted by the United Nations General Assembly in 2007. The resolution outlines within it “the rights of indigenous peoples” and “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”, according to the UN website. Although initially voting against its adoption, the Canadian government eventually issued a Statement of Support endorsing the principles in UNDRIP and in 2015, announced its full, unqualified support. However, the international resolution is not legally binding in Canada, and requires domestic implementation for the rights and obligations of the State to be realized. In the prior two throne speeches, the Governor General of Canada promised full implementation of UNDRIP, stating in 2020 that “[t]he Government will move forward to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples before the end of this year.”

Implementation, as alluded to previously, does not come without its challenges, says Wilkins. “[F]irst, Canadian law isn’t especially well designed to welcome enforceable UNDRIP rights and obligations into it. And second, the colonial experience, mainstream law and governance, has done a great deal already to fragment and to disaggregate ancestral Indigenous communities, destabilize their relationships with traditional territories, and suppress and marginalize key features of their cultures.”

However, Wilkins says that the very “impediments to implementation are among the reasons why implementing the United Nations Declaration in Canadian law is so important”, and putting off implementation will in no way help the process. Sections 27, 38, and 40 of UNDRIP assign the process of implementation to the States, according to Wilkins’ paper. Article 38, for example, provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

In considering how meaningfully to implement UNDRIP, attention must be drawn to two overarching issues, including what Wilkins refers to as the “what” and the “how” of implementation. These questions refer, respectively, to the substantive and procedural issues that may underlie the process.

The instrument leaves undefined certain key features, including who qualifies as Indigenous peoples, how to distinguish traditional lands or territories, and which practices and features can be subject to cultural protection rights. Wilkins suggests that, if left to their own devices, courts and Parliament may revert to applying the metrics with which they are already familiar. Unfortunately, in doing so, or if left to define key concepts within UNDRIP unilaterally, governments and courts run the risk of trivializing the rights that would otherwise be protected. Non-Indigenous governments, for instance, do not have particular experience in thinking about indigeneity. Bands or First Nations as defined by the Indian Act outline criteria that would be “neither necessary nor sufficient to qualify as an Indigenous peoples for the purposes of UNDRIP”, Wilkins says. In reference to rights related to traditional lands or territories, Courts may be tempted to apply the law of Aboriginal Title, reverting to a process that is not only time consuming but likewise reduces the rights contained in UNDRIP to those already protected under the Canadian Constitution. Similar considerations run true for Aboriginal rights.

Various procedural issues must likewise be taken into consideration, namely, by which vehicle implementation should occur. Wilkins provides in his paper two such avenues, including by way of treaty and by legislation. Both have certain benefits and disadvantages, however the Canadian government as mentioned previously, has promised legislation as a means of implementation. Although legislation may provide for uniformity across the country, it can likewise be tailored to apply to specific groups. However, rights contained within legislation implementing UNDRIP, unlike treaties, would not receive constitutional protection. Further, legislation is subject to being overridden, not only by subsequent or more specific legislation, but likewise is subject to potential repeal by subsequent governments which may differ in their constituency and platform. Such potential conflict must be taken into careful consideration when drafting UNDRIP legislation, to ensure that subsequent laws are subject to UNDRIP unless explicitly stated within said legislation, UNDRIP legislation cannot be replaced by subsequent governments unless by certain manner and form requirements such as a supermajority vote, or by including explicit provisions that bind both federal and provincial Crowns.

“It’s important as we embark on the project of implementation to acknowledge at the outset the difficulties that it’s going to involve,” Wilkins said. “But it’s equally important not to let the existence of those difficulties count as a reason not to make the effort at implementation.”

Julia Nowicki is a 2L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

Access recording of the Constitutional Roundtablewith Kerry Wilkins HERE.

By Catherine Ma

On October 22, 2018, the Faculty of Law’s Office of Indigenous Initiatives hosted Professor Brenda Gunn to discuss the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Her presentation primarily focused upon the opportunities and challenges related to implementing UNDRIP in Canada.

UNDRIP enshrines the individual and collective rights of Indigenous peoples in relation to culture, identity, language, education, employment, health, and other issues. These rights are the bare minimum rights of Indigenous peoples; in other words, states are free to recognize stronger rights than those articulated in UNDRIP. Nevertheless, UNDRIP is monumental document since Indigenous peoples directly participated in drafting its provisions. Its adoption signalled a recognition and protection of Indigenous peoples’ rights within the United Nations and international legal systems.

Professor Gunn endorsed Bill C-262 as a framework for implementing UNDRIP. This bill would state affirmatively that UNDRIP applies in Canada; require the federal government to ensure all domestic laws are compliant with UNDRIP, develop and implement a national action plan for achieving UNDRIP’s articles, and report annually to Parliament regarding its progress; as well as clarify that UNDRIP does not diminish or extinguish any §35(1) rights. Professor Gunn emphasized that a national action plan is essential to ensure that different Indigenous peoples can pursue their rights as they understand them. She further suggested that human rights commissions can have an “active role” in promoting UNDRIP and mediating between the Canadian state and Indigenous Peoples.

Professor Gunn asserted that the scope of §35(1) rights must be reconsidered; at a minimum, §35(1) rights must include the rights enshrined in UNDRIP. She reasoned that R v Van der Peet is no longer authoritative law, as §35(1) cannot only protect activities that are “central and integral to the distinctive community practiced continually since contact.” §35(1) must protect all practices, traditions, and customs that are connected sufficiently to the self-identity and self-preservation of Indigenous nations.

UNDRIP at the Asper Centre

The Asper Centre has a dedicated Indigenous Rights Student Working Group (“IRSWG”) that focuses on the constitutional dimension of Indigenous rights. This year, the IRSWG will analyze UNDRIP and Bill C-262 with the intent of drafting general recommendations and observations about actions that ought to be taken in order to implement UNDRIP. This project will examine how UNDRIP affects different legal and policy areas. The group’s other projects include drafting proposed legislation to exonerate Indigenous peoples who were convicted for practicing their ceremonies under past legal regimes; and examining Beaver v Hill for the §35(1) governance issues in relation to Haudenosaunee law and family law.

It will be fascinating to follow the IRSWG’s progress on these projects as the year unfolds.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018.