An Introduction to UNDRIP: Understanding the Declaration and its implementation in Canada

by Ella Hartsoe

(Pictured above: Poster with UNDRIP’s name at winter 2020 protests. Photo by Jansher Saeed.)

More and more at demonstrations and in organizing spaces, discussion about the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has become common. But what is UNDRIP, and what is Bill C-15, the most recent attempt to incorporate the principles of the international Declaration into domestic policy and law? Here, I provide an overview of the Declaration and its history in the context of Canadian settler politics. 

What is UNDRIP? 

UNDRIP is the culmination of decades of international Indigenous activism and solidarity at the highest levels of global governance. While the list of failures of the United Nations is long – particularly in the face of the on-going climate crisis – generations of Indigenous Peoples from across the world have appealed to the international community through the UN to seek justice when it has been denied at home by settler states. Representatives from Indigenous communities from across the world came together to envision the document and its core principles with a variety of histories, legal and political backgrounds, and goals. Special attention should be given to the work of Wilton Littlechild, Cree lawyer and former Grand Chief of the Confederacy of Treaty Six First Nations, who worked diligently on drafting the Declaration, as well as George Manuel, Chief of the National Indian Brotherhood which is known today as the Assembly of First Nations. Manuel was a visionary political leader of the Neskonlith Indian Band of the Shuswap Nation who originally proposed the idea of drafting the international declaration in 1977. 

Thirty years later, on September 13, 2007, the United Nations General Assembly voted on and adopted UNDRIP by a majority of 144 states. It is noteworthy that only four states voted against UNDRIP: Australia, New Zealand, the United States, and Canada, all of whom are settler states. In fact, Canada sent delegates to try to convince other countries to vote against UNDRIP, attempting to whip up fears that the message of the Declaration would undermine newfound sovereignty after decades of decolonizing struggles in much of the Global South. Canadian advocacy against UNDRIP failed, however, and although they initially voted against the Declaration, Canada has now reversed its position along with the US, Australia and New Zealand. 

What does UNDRIP say? 

UNDRIP attempts to outline a basic universal standard that must be upheld and prioritized in domestic policies, legislative frameworks and development programs. While UNDRIP is a declaration and does not constitute law like an international treaty, it still provides a vocabulary and a series of core principles for global society, individual states, and grassroots communities to work with. 

Some noteworthy articles from UNDRIP are: 

• Article 3: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 
• Article 10: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” 
• Article 25: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.” 
• Article 29: “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.”

Especially relevant is what the Declaration refers to as free, prior and informed consent (often called “FPIC”) and its interaction with domestic frameworks of Indigenous consent. As Dr. Pamela Palmater, Mi’kmaq lawyer, professor, activist and politician, explains, Canadian courts have long issued decisions which say that the Canadian government must obtain the consent of Indigenous people when implementing laws, policies, projects, and other changes that might affect their communities. This unique right of First Nations, Inuit and Métis peoples is guaranteed in section 35 of Canada’s 1982 Constitution Act as “the duty to consult.” In practice, the duty to consult is often not a true form of Indigenous consent and does not advance reconciliation, as the government would like to claim. This duty to consult is often treated as a box to be checked in the development of new policies and projects and is almost always bureaucratic, rushed and disingenuous – when it is implemented at all. Overwhelmingly, the duty to consult fades into the background and is dismissed when it is convenient for the Canadian government, which is usually when it matters most. As Palmater writes, “At every turn, Canada chooses the path of injustice when it comes to Indigenous peoples.” A large part of this injustice is denial of true consent. 

The duty to consult is even undermined by Canadian decision makers in their public statements and actions. One example of this is from Justin Trudeau’s 2015 campaign. When asked, “would no mean “no” under your government?” Trudeau replied, “absolutely.” Soon after, however, Justice Minister Jody Wilson-Raybould stated that consent does not ensure Indigenous peoples’ refusal will be respected by the Canadian government. Consent is not consent if people cannot say no. And yet more recently, Trudeau’s practice of consent has exclusively meant listening to concerns from Indigenous leaders and then forging ahead with destructive policies anyway. 

Free, prior and informed consent cuts through the noise of debates on the duty to consult in Canada today, holding the government to a real standard with which to measure its consultation and respect for Indigneous communities’ wishes. FPIC joins and bolsters other sources of law applicable in Canada that ensure Indigenous veto power, including Indigenous law, Aboriginal rights, treaty rights and Aboriginal title, international human rights law, and the inherent rights of Indigenous governments to govern traditional territories, which is also enshrined in UNDRIP in the concepts of autonomy and self-determination.

Additionally, UNDRIP stresses the utmost importance of the wisdoms and practices of Indigenous Peoples worldwide in protecting the environment in an ever increasingly catastrophic climate crisis. 80% of the world’s remaining biodiversity lies within Indigenous peoples’ territories. Forests in Canada are the most intact, carbon-dense in the world and that is because of the work, advocacy, and protection of Indigenous nations. Stressing relationality, humility, reciprocity, and respect for the land and waters many Indigenous people know to be kin, these communities have been forced to stand as the final line of defense against a government and private enterprise set on destroying the planet. Trudeau and his allies pretend to care about the future of the Earth that we and our children and grandchildren will live on, but by tracing the government’s breaking of Indigenous peoples’ consent we see that this is an on-going lie with devastating consequences. 

What is Bill C-15? 

Calls for the implementation of UNDRIP have been growing louder for almost a decade. Even before its final report in 2015, the Truth and Reconciliation Commission of Canada called upon federal, provincial, territorial and municipal governments to fully adopt and implement UNDRIP as the framework of reconciliation in Canada, and then again during its final stages and 94 Calls to Action. 

While the Harper government called the Declaration “aspirational” with explicit concerns over the provisions on land and natural resources, Trudeau was elected on his promise to implement these Calls to Action, including the implementation of UNDRIP. So far, the results have been lackluster. Initially, the 2016 Bill C-262 was proposed by NDP member Romeo Saganash and nearly became law, but delays in the Senate killed the bill before the 2019 federal election. During the first Trudeau administration, development projects like the Trans Mountain pipeline continued despite incredible opposition by Indigenous communities and their allies. In the words of Saganash, the Liberal party said that “Canada will not be able to accomodate all Indigenous concerns [on the pipeline]. What that means is that they have decided to willfully violate their constitutional duties and obligations.” 

The current Liberal government introduced new UNDRIP legislation in December 2020 in the form of Bill C-15. The bill is a failure to fully implement UNDRIP, as well as an underwhelming piece of legislation or even policy, as it focuses exclusively on high level commitments rather than actual strategy or implementation to ensure its promises are kept. Ultimately, Bill C-15 strives to enforce rather than change the status quo. 

There are a number of serious issues with the Bill, which are only the beginning of the problems with the proposed legislation. These include:  

• While Bill C-262 had a powerful preamble, this has been cut from Bill C-15, watering down the language and powerful context of the earlier bill 
• Justice Minister David Lametti conducted only a single phone call with First Nations on the draft of Bill C-15, which is completely inadequate 
• The bill fails to cite or consider systemic discrimination or racism in Canada against Indigenous people 
• The bill focuses only on future action instead of the ceasing of and reparation for present and past violence against Indigenous people 
• The bill allows the federal government three years to put in place an action plan, which puts it at risk for failing like the earlier Bill C-262 
• Bill C-15 does not acknowledge or try to curb the negative impact of Liberal policies on the environment and does not truly place sustainability leadership in the hands of Indigenous communities, who continue to do the most work in protecting the land, water and air 
• While the bill requires consultation on an action plan, it requires no consultation for the future reporting on the federal government’s adherence to that action plan, which could be a problem if the action plan is not being fully implemented but the federal government says it is
• While there is an obligation to align all future laws with UNDRIP, the bill’s implementation is not retroactive, meaning that laws can continue to exist in Canada that violate UNDRIP
• Noticeably absent is real consideration of free, prior and informed consent or self-determination, and what respecting these concepts would mean in terms of actually doing the work to review current programs, projects, and policies in Canada 

What does UNDRIP offer us?

While implementation of UNDRIP has so far failed, the Declaration does offer us a means to imagine a future pathway to reorienting the Canadian government’s priorities when it comes to policy, law, and politics in Canada. UNDRIP can be cited by organizers and used as leverage in the face of government inaction and violence, particularly because of its accessible language and short length. The Declaration also serves as a reminder of international and long-term Indigenous activism – UNDRIP is the product of decades of worldwide solidarity, which activists can turn to for lessons and inspiration. 

The story of UNDRIP is a useful one for those concerned with environmental justice and policy, which necessarily must focus efforts on justice for Indigenous communities across so-called Canada and respect for Indigenous sovereignty, self-determination and consent. While the Canadian government loudly praises Indigenous communities when it suits their needs, the state resists the implementation of global principles that they have agreed to promote on the global stage. UNDRIP is one tool we can use to imagine and motivate our future work.