UNDRIP at a Glance
- The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations General Assembly in September 2007 by a vote of 144 states in favour. Canada was one of four countries that voted against the Declaration.
- Work to create a human rights instrument specifically tailored to protect the rights of Indigenous peoples took several decades. Many countries rejected the idea of being bound to such a document because it contained provisions for the right to self-determination and the right to control natural resources on traditional lands.
- UNDRIP contains 46 articles affirming the rights of Indigenous peoples from the right to practice and teach language and culture, to the right to be free from violence and assimilation to the right to establish and control their own education and health systems. In short, it lays out Indigenous peoples’ right to self-determination in all social, cultural, spiritual, and economic contexts.
- Article 19 of UNDIP states that countries have to obtain the free, prior and informed consent of Indigenous peoples before implementing legislative or administrative measures that may affect them.
- Article 26 states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
The Indigenous Rights Landscape in Canada: A Snapshot
If UNDRIP were to be implemented, its Articles would overlap with many existing pieces of policy and legislation that lay out how federal, provincial, and territorial governments have to interact with Indigenous communities and peoples. This is not a complete list of those laws and policies but will give an idea of the complexity of the landscape that UNDRIP would impact.
- The Canadian Constitution – Section 35: Instituted in 1982, Section 35 of the Canadian Constitution “recognizes and affirms existing aboriginal and treaty rights” including land claim agreements, guarantees those rights equally to “both male and female persons”. It also clarifies that “aboriginal peoples of Canada” includes “Indian, Inuit, and Métis” peoples.
- The Indian Act: The Indian Act outlines who is entitled to “Indian Status”, how that status is passed down, how the reserve system works, and generally how the Government of Canada interacts with First Nation bands. It became law in 1876 and has been amended many times since while continuing to be criticized for its paternalistic and assimilationist nature.
- Treaties: Most of the land in so-called Canada is covered by treaties developed since the 18th Century for economic or military reasons. Some (but not all) of the treaties ceded land to the Crown in exchange for hunting and fishing rights to treaty lands, monetary payments, and other supplies, terms that are contested, and often disrespected, to this day.
- Indigenous Rights, Recognition, and Implementation Framework: In 2018, the Government of Canada introduced the Rights, Recognition, and Implementation Framework to restructure and “renew” the basis of all interactions between the Government of Canada and Indigenous peoples. Ultimately, the stated goal of the framework is to create a basis for self-governance outside of the Indian Act.
CRE’s Impressions – Implementing UNDRIP in Canada – The Impacts for Indigenous Youth
Ideally, entrenching UNDRIP in Canadian law will commit the Government of Canada to ensuring more space for Indigenous youth to lead and speak on the issues that impact them directly, including (but not limited to) land disputes, child welfare reform, and resource extraction projects. With a commitment to truly unsettling how current Canadian colonial systems impose processes and laws on Indigenous peoples, the potential exists for UNDRIP to be a means for Indigenous youth and Elders to further shape what Indigenous self-determination in Canada looks like, now and in the future.
At the same time, many youth and activists have expressed concern about Article 46 of the Declaration, which can be read as undermining the intent of the rest of the document by discouraging actions like protests or demonstrations that disrupt Canada’s economic activities, such as blockades, sit-ins, and moratoriums. The Article also leaves principles like “justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith” undefined.
Key Considerations: Sovereignty, Jurisdictions, Decolonization
Ultimately, implementing UNDRIP is going to overlap with many deeply embedded roots that shape the Government of Canada’s relationship with Indigenous nations and peoples. Right now, it is not clear how or whether those roots will be reconfigured in a meaningful way, what that will look like, or how federal, provincial, and territorial jurisdictions will factor into it all.
In Canada, some social systems and services are structured and delivered by provincial governments, such as health care, child welfare, and education. These are considered to be local considerations while larger and more wide reaching matters – such as criminal law, national defense, and Indigenous land and rights – are handled by the federal government. Fulfilling Indigenous rights is considered a federal responsibility, but Indigenous peoples live and access services in every province and territory. The current setup of jurisdictional responsibility means that the provinces and the federal government are often going back and forth about who should pay and be reimbursed for those services, and how they should be delivered. In the midst of this, the needs, health, and safety of Indigenous people are not the focus, though they should be.
For example, the Government of British Columbia introduced legislation 2019 to formalize UNDRIP in its own laws, provincially. No provincial action plan to set this in motion has yet been developed, and how federal UNDRIP legislation will affect it – and provincial and territorial jurisdictions more generally – is still a question mark. With health care and child care systems already leaving many Indigenous people in a jurisdictional grey area, often with dire consequences, it is going to be all the more important to clarify well ahead of time how UNDRIP will impact the control, funding, and autonomy of these systems.
Implementing UNDRIP could also mean massive overhauls and transference of control of those systems, as well as to education systems, and land dispute processes. For example, ongoing land defense actions on the west coast, where the Wet’suwet’en are protecting their territory from pipeline construction, and on the east coast, where the Mi’kmaq of Sipekne’katik First Nation are protecting their right to harvest lobster, have been met with different forms of police and settler violence, even though these nations are simply asserting and defending their constitutional rights. UNDRIP would add to a growing body of legislation and court rulings that legitimize and decriminalize these activities, and more importantly, would remove the need for them altogether as UNDRIP prohibits any forcible removal of Indigenous peoples from their lands, and reaffirms their right to control what happens on their lands.
Beyond this, Indigenous communities and organizations (whether they are on or off-reserve, rural or urban, remote or northern) will need resources (including funding) to meet the new standards. Without ensuring that the engagement and implementation processes are truly done in a decolonized way, UNDRIP will not be a reconciliation framework in which Indigenous youth and communities can see themselves and their needs reflected and respected.
Processes to implement UNDRIP need to be community-based and community-led, with deliberate spaces created for youth, Elders, women, and Two-Spirit and LGBTQ+ people to lead and shape how UNDRIP reconfigures Canada’s relationships with Indigenous peoples.
The Government of Canada has held engagements as it moves to introduce legislation before the end of the year. With the House of Commons scheduled to break for the Holidays on December 11, there is a small window to complete this important and complicated work. In the New Year, the legislation could be referred to a standing committee for review, and during that time, organizations and individuals will be invited to provide input that will shape the legislation further.
In early November, CRE was invited by the Department of Justice to participate in a virtual engagement with over 60 other Indigenous youth to provide feedback as the legislation is being drafted. CRE hopes to see and support substantive, accessible, meaningful, and continuous engagement in order for communities to be empowered to implement the Declaration in a good way. As this process unfolds, CRE will embrace any opportunity to ensure that Indigenous youth voices are centered in this conversation. More than anything, we want to see youth and communities leading the implementation of UNDRIP on a basis of reciprocity and respect, and with an eye to how future generations will be impacted by what we do now, and real reforms that address systemic racism.
We will continue to keep an eye on any announcements related to UNDRIP and take note of how these will impact Indigenous youth and communities and will release more editions of CRE Explains focused on different aspects of UNDRIP.
For more information, to let us know your thoughts, or to suggest a topic for the CRE Explains series, reach out to us at firstname.lastname@example.org.