Monday, December 23, 2019

Implementing UNDRIP will Fundamentally Change Canada For the Better

What we call “Canada” is about to change.  In the recent speech from the Throne, Prime Minister Trudeau’s government promised to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (see: “Liberals promise to table UNDRIP law within one year,” the Nunatsiaq News, December 6, 2019).  This will fundamentally alter the legal, institutional and political systems that have long tilted the balance of power away from indigenous communities, and to the benefit of settlers and the Crown.

We’ve already started to rebalance the relationship between indigenous peoples who have always been here and the settler state that imposed itself upon them. We’ve begun to finally recognize that Canada is a colonial nation, founded and built upon racist principles of cultural superiority, to the detriment of indigenous communities and culture.  We are starting to come to terms with the role that institutional racism has played in the history of our country, and how it continues to impact our laws, policies and programs today. 

UNDRIP explodes several of the foundational assumptions that underly the creation of Canada as a nation-state.  The Declaration calls for the repudiation of the Doctrine of Discovery (see: “Dismantling the Doctrine of Discovery,” The Assembly of Frist Nations, January 2018) and the Doctrine of terra nullius, which together gave rise to the concept that European Kings had the exclusive jurisdiction over ‘discovered’ lands – despite the presence of indigenous inhabitants (see: Ditching the doctrine of discovery (and what that means for Canadian law),” Senwung Luk, Olthuis Kleer Townshed – LLP (undated)).  

King George III set out how the North American continent was to be settled by Europeans in the Royal Proclamation of 1763 – which many legal scholars cite as the genesis for the concept of ‘aboriginal title’ and ‘aboriginal rights’ that are now protected in our Constitution as per the Supreme Court.  The Proclamation established a monopoly over indigenous lands for the benefit of British Crown (it’s where the term “Crown Lands” is derived from).  Although the Proclamation required treaties between the Crown and First Nations prior to taking land and resources, it was nevertheless developed in absence of indigenous input and cultural practices. Historically, the Proclamation has been unevenly implemented – to say the least (see: "Royal Proclamation, 1763," indigenous (undated)).

British Columbia has already legislated the implementation of UNDRIP (see: "BC Bill 41: A Promising Start to Implementing UNDRIP,” Larry Innes, Matt McPherson and Oliver MacLaren, Olthuis Kleer Townshed – LLP (undated)), and the Northwest Territories is about to do the same (see: "What does 'implementing UNDRIP' actually mean?” CBC News, November 2, 2019).  With Canada poised to follow suit, it won’t be too much longer before all Crown governments (hello, Ontario!) are forced to confront their own colonial legacies and determine how best to structure a framework for future reconciliation and decolonization. 

These changes to Canada’s underlying structures will create challenges for our national and provincial governments.  One significant challenge is sure to involve the development of non-renewable resources (see: "Aboriginal rights, conservation and Canada’s future – the far reaching implications of the Tsilhqot’in case,” Larry Innes, Olthuis Kleer Townshed – LLP (undated)). UNDRIP requires the ‘free and prior informed consent’ of indigenous peoples when new resource development projects are being considered. That’s a higher standard than the ‘duty to consult and accommodate’ established by the Supreme Court – a standard that the government of Canada failed to meet when it approved the Northern Gateway pipeline project (see: "Court overturns Ottawa’s approval of Northern Gateway pipeline,” The Globe and Mail, June 30, 2016).  Canada is presently defending its decision to approve the Trans Mountain pipeline at the Federal Court of Appeal, where several B.C. First Nations are arguing that Canada didn’t uphold the honour of the Crown (see: "Trans Mountain pipeline expansion approval 'unlawful,' First Nations argue as new court challenge begins,” CBC News, December 16, 2019).

Critics claim that ‘free, prior and informed consent’ would lead to an indigenous veto for resource development.  This claim isn’t supported by Canadian or international law – and it would not be in keeping with Canada’s commitment to reconciliation.  Instead, responsible decision-making will be an obligation shared by Crown and indigenous governments (see: "Distinguishing consent from veto in an era of reconciliation,” Jason Tockman, Policynote, April 10, 2017).

Make no mistake: power-sharing with indigenous nations poses a serious threat to those who want to continue to develop fossil fuels. Indigenous peoples are on the front lines of the climate emergency, fighting for justice against unwanted fossil infrastructure. The implementation of UNDRIP will almost certainly force our governments to finally make science-based decisions that leave most of our coal, oil and gas safely sequestered in the ground. That will be good for all of Canada’s communities – and for the planet.

(opinions expressed in this blogpost are my own, and should not be interpreted as being consistent with the Green Parties of Ontario and/or Canada)

Originally published online and in print as, "Steve May: Implementing ‘UNDRIP’ will change Canada for the better," at the Sudbury Star, Saturday December 22, 2019 - without hyperlinks.