The answer to that question ultimately lies with the First Nations, Inuit, and Métis rights holders. However, the government of Canada is once again debating the application of United Nations Declaration of the Rights of Indigenous Peoples’ (UNDRIP) in Canada, a nation state that would not exist but for genocide and the theft and occupation of Indigenous lands.
On December 3, 2020, Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (“Bill C-15”) was introduced in the House of Commons by the Minister of Justice, David Lametti. Bill C-15 is an attempt to establish a process for the domestic implementation of UNDRIP. The rights and principles affirmed in UNDRIP constitute the minimum standards for the survival, dignity, and well-being of Indigenous peoples of the world. It affirms Indigenous peoples’ right of self-determination and underlines the prohibition of discrimination and genocide in international law.
History of UNDRIP
For more than 20 years, Indigenous peoples worked directly with states to elaborate upon and advance their collective and individual human rights. The resulting UNDRIP, was overwhelmingly adopted by the UN General Assembly on September 13, 2007. At that time, Canada, the United States, Australia and New Zealand voted against its adoption.
UNDRIP calls upon states to honour and respect the Treaties and other agreements they have entered into with Indigenous peoples and to respect and uphold Indigenous peoples’ rights and relationships to lands, territories and resources. In 2009, Bolivia blazed the trail by becoming the first country to implement UNDRIP into its constitution. In 2016, Canada shed its objector status and became a “full supporter, without qualification.” It also committed to fully adopt and implement UNDRIP as the framework for reconciliation. This only happened after recommendations from the Truth and Reconciliation Commission of Canada and the National Inquiry into Murdered and Missing Indigenous Women and Girls, Calls for Justice.
The groundwork for Bill C-15 was previously laid out in Bill C-262 by former NDP MP Romeo Saganash, which was his second attempt in seeking to ensure the laws of Canada align with UNDRIP. Bill C-262 died on the order paper after it was blocked by the Senate in 2019.
During the second reading of Bill C-15, Minister Lametti stated, “Bill C-15 and our endorsement of [UNDRIP] are intended to renew and strengthen the relationship between the Crown and Indigenous peoples, a relationship based on recognition, rights, respect, cooperation, partnership and reconciliation.”[i] With that said, Bill C-15 is not intended to change Canadian law immediately. Rather, it is an attempt to establish a process that could make federal laws and policies consistent with UNDRIP.[ii]
Is Canada ready for the transformative change that UNDRIP requires?
Despite the hard work and perseverance of Indigenous peoples to bring about what became UNDRIP, Canada continues to violate Indigenous rights and break its promises to Indigenous peoples. As a result, Bill C-15 has been met with mixed reactions.
Proponents of Bill C-15 welcome it as an opportunity for Canada to finally meet its implementation obligations. They also note that Indigenous peoples’ governments and organizations, including the Assembly of First Nations among others, are proposing or supporting amendments to clarify and strengthen Bill C-15. These supporters of the Bill hope to see it adopted before the end of the current session of Parliament.
Ellen Gabriel, Mohawk activist and artist who is well known and respected for her role as spokesperson during the Kanehsatà:ke Resistance,recently stated that as piece of government legislation, Bill C-15 deserves skepticism but strongly feels that “its passage into law would represent the best chance we’ve seen in a very long time to actually break with colonial status quo.”
Critics of Bill C-15 question its integrity, its impact beyond mere window dressing, and view it as a potential threat to Indigenous sovereignty and self-determination. Critics have also condemned Canada for not adequately consulting with First Nations during the drafting stage and question the Honour of the Crown.
The Association of Iroquois and Allied Indians stated, “Canada has not adequately engaged with Indigenous Peoples…They have not reached out or made enough of an effort, to talk with the rights holders themselves or the communities. Meetings were capped, time was restricted, and engagement periods were not extended to make proper use of the time and information.”
The Defenders of the Land, Truth Campaign and Idle No More, think Bill C-15 is deeply flawed and must be rejected. They note that:
“[T]here is nothing in Bill C-15 that indicates that the actions of Canada under this Bill will be subject to international review by the United Nations. If the government of Canada wants to give the appearance of meeting minimum standards, then there needs to be an external body to monitor its actions because Canada continues to show it cannot be trusted to monitor and report on itself.”
The Confederacy of Treaty Six First Nations agree that Bill C-15 is flawed and claim that Canada is taking advantage of the role to bring honour to the Crown. “Rather than considering the actions of the state in relation to our rights, the government of Canada has made decisions that will affect our rights and the treaty relationship.” Similarly, Treaty 8 Grand Chief, Arthur Noskey, expressed concerns about Canada’s failure to adequately consult and negotiate with First Nations about Bill C-15.
Kitchenuhmaykoosib Inninuwug, a First Nation in northwestern Ontario, oppose Bill C-15 because it relies on a false and racist premise that Canada has ownership over the land and has the authority to grant title rights to the land. As well, it noted that Bill C-15 does not expressly repudiate the doctrine of discovery.
British Columbia’s Example
Bill C-15, if passed, would not prevent provinces or territories from developing their own plans or approaches for implementation of UNDRIP.[iii] Indeed, BC was the first Canadian jurisdiction to pass legislation to align its laws with UNDRIP. On November 28, 2019, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) became law. During a recent presentation to the Standing Committee on Indigenous and Norther Affairs (INAN), Dr. Mary-Ellen Turpel-Lafond on behalf of the Assembly of First Nations, referred to the BC context to show how implementing UNDRIP can have a positive impact on the relationship between industry and First Nations. In particular, with respect to Free Prior and Informed Consent (FPIC), Turpel-Lafond pointed to an unprecedented number of mining permits that went forward with the support of First Nations.
On the other hand Indigenous land defenders continue to face colonial forces that repeatedly violate and deny their inherent rights, including their right to protect their lands and oppose resource extraction and development on their unceded territories. As well, urban Indigenous peoples experiencing homelessness continue to face displacement by the state on their own homelands.
In December 2019, the United Nations Committee on the Elimination of Racial Discrimination (CERD) responded to urgent reports filed by the Wet’suwet’en, Secwepmec, and Dunne-za and Cree groups facing immediate threat from resource extraction and development on their lands. CERD called upon Canada to immediately suspend construction on, respectively, the Coastal Gaslink pipeline, Trans Mountain pipeline, and the Site C damn until the free, prior and informed consent of the people could be obtained. Canada, true to its form, did not oblige. In January 2021, CERD rebuked Canada for failing to comply with international human rights law. CERD observed that Canada is misinterpreting free, prior and informed consent by focusing on a process, but not a particular result.
Impact on the #LandBack Movement
Bill C-15 was introduced shortly after Indigenous grassroots people on the frontlines put out a nationwide call for solidarity actions to protest development on their territories. This call is a part of the #LandBack movement that has been gaining traction across the country. #LandBack exposes and widens the cracks in Canada’s foundation. As a result, land defenders routinely face harassment and criminalization.
The BCCLA remains firm on its stance that Canada must end the harassment and criminalization of Indigenous land defenders.
After reviewing the first draft of the Bill, the BCCLA was in agreement with the need for improvement and greater accountability on the part of Canada. Bill C-15 was recently studied by the INAN committee. A number of witnesses participated in this process to voice their concerns and suggested amendments. The Assembly of First Nations (AFN) suggested 12 improvements during its recent presentation to the Standing Committee on Indigenous and Northern Affairs. Aboriginal law firm, OKT, has also proposed several suggestions for improvements in its review and analysis of the Bill. In its committee report, INAN incorporated some of AFN’s suggestions including adding the words “racism” and “systemic racism” and expressly mentioning the “doctrine of discovery”.
The BCCLA sees that on a global scale Indigenous peoples continue to face dispossession of their lands and resources, settler-colonial violence, discrimination, forced assimilation and other grave human rights abuses. The BCCLA would like to reiterate[iv] that we affirm the right of Indigenous peoples to be free and to choose how they want to live their lives – including the right to live according to one’s own culture and values. We stand against the unjust coercion of Indigenous peoples by the Canadian state. We stand in opposition to government action that unjustly takes away the right of Indigenous peoples to determine and shape their own future.
As Bill C-15 makes its way through the Senate, we pledge our continued vigilance and commitment to promoting and supporting Indigenous self-determination.
- Watch Pam Palmater discuss Bill C-15 with Professor Brenda Gunn and the Honourable Murray Sinclair
- Read Wendy Lynn Lerat’s opinion on Bill C-15
[i] “Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples”, 2nd reading, House of Commons Debates, 43-2, No 060 (17 February 2021) at 1805 (Hon David Lametti) online: Our Commons <www.ourcommons.ca/DocumentViewer/en/43-2/house/sitting-60/hansard>
[ii] Backgrounder: Bill C-15 – United Nations Declaration on the Rights of Indigenous Peoples Act (2020), online (pdf): Government of Canada <www.justice.gc.ca/eng/declaration/about-apropos.html>.
[iv] “The Journey of Reconciliation: Issuing our Statement of Reconciliation at Canada’s TRC” (21 September 2013), online: BC Civil Liberties Association <bccla.org/2013/09/the-journey-of-reconciliation-issuing-our-statement-of-reconciliation-at-canadas-trc/>.