Governments Pledging to Legislate the United Nations Declaration are Sure to Disappoint

A mid-December article in this space highlighted some of the many difficulties that would confront legislating the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration).

Those difficulties have been laid bare by the confrontations surrounding the Coastal Gas Pipeline.

Let’s look at just one of the many problematic clauses in the Declaration.

Article 19: “States shall consult and cooperate 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.”

This is stronger than current Canadian Law, which requires consultations but not necessarily consent. The Coastal Gas proponents could have reasonably believed that their careful consultations and engagement with affected Indigenous people fully met the requirement of the Declaration.

They were able to reach benefit agreements with the elected councils of all 20 Indigenous groups along the route of the pipeline and it duly received the necessary approvals.

Then a group of Wet’suwet’en hereditary chiefs decided that they would set up blockades as a way of protesting. They were robustly supported by non-Indigenous environmentalists, who know a tail-gating opportunity when they see one. An Injunction was issued and the RCMP removed the protesters from the pipeline work area.

Supportive Indigenous and non-Indigenous protests popped up elsewhere in places totally unaffected by the pipeline, most notably in Belleville, Ontario, where Mohawks blocked the main CN line connecting with eastern Canada.

The legitimacy of the hereditary chiefs is being called into question by matriarchs and sub-chiefs. “These five so-called hereditary chiefs, who say they are making decisions on behalf of all Wet’suwet’en, do not speak for the Wet’suwet’en,” sub-chief Gary Naziel said. “They are neither following nor abiding by our traditional laws. They are changing them to suit their own purposes, to benefit themselves,” he told The Globe and Mail.

This highlights two questions. What qualifies as an Indigenous “representative institution”? And what constitutes “legislative or administrative measures that may affect them”?

In December the federal government reiterated its commitment to implement UNDRIP legislation by the end of 2020, asserting that it would be co-developed with Indigenous representatives. When asked who they would be dealing with as Indigenous representatives they advised that “The process for co-developing legislation has yet to be determined.”

Responding to the same question this week the government said: “Introducing legislation to implement the (Declaration) by the end of the year is a key government commitment… we have started to meet with First Nations, Inuit and Métis partners … and will continue to work together on developing what the process will look like going forward.” In other words, the process for co-developing legislation has yet to be determined.

British Columbia passed its Declaration on the Rights of Indigenous People’s Act last fall and faces the same question. The act does nothing other than to instruct the government to get it done. The key clause says in part:

“4 (1) The government must prepare and implement an action plan to achieve the objectives of the Declaration.

(2) The action plan must be prepared and implemented in consultation and cooperation with the Indigenous peoples in British Columbia.”

It orders that the plan be tabled with the legislative assembly.

This raises the same question, in response to which the BC government replied: “…government is currently working on how we will engage with Indigenous peoples, to ensure we have appropriate representation for the development of the action plan…” It also points out that “it is up to the Nation themselves to decide who speaks for and makes decisions on behalf of the Nation, based on their own rules and protocols.”

It is now more than four months since the BC legislation was introduced, and the federal Liberals were re-elected promising to co-develop legislation to the Declaration this year.

Neither government has yet established who can make commitments on behalf of Indigenous peoples. Finding a satisfactory answer to that would be a necessary first step to any substantive legislation. In light of the Coastal Gas dispute, it would be surprising if that was accomplished this year.

Next up would be reaching an agreement on what constitutes “legislative or administrative measures that may affect” Indigenous peoples. Is it just changes to the Indian Act? Or is it any changes to government budgets for Indigenous health and education services? Or is it any change in government policies in relation to climate change? For nation-wide issues does each of the 600 plus bands have to provide its “free, prior and informed consent”?

If those questions can be resolved it might be possible to write language implementing clause 19, leaving 45 other clauses still to be addressed. Some of them would confiscate property and infringe on the rights of non-Indigenous Canadians.

British Columbia appears to better understand the challenges, but neither government has been honest with its voters about the unsuitability of the Declaration as a guide to improving relationships.


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