TRC@1: Pop goes the weasel words? Translating UNDRIP into action

On May 9, Canada ceded its lonely position on the global stage as the sole nation state  that still refused to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada finally and enthusiastically announced it is endorsing and implementing UNDRIP. At the same time, the Canadian media continued to report on the other realities currently facing Indigenous communities, such as:

• high suicide rates
• lack of critical infrastructure
• lack of access to drinkable water
• investigations into murdered and missing Indigenous women
• reports on racism experienced in the health system
• socio-economic disparities between Indigenous and non-Indigenous people, and
• efforts to address the continuing significant gaps between funding of programs for Indigenous children compared to their non-Indigenous neighbours.

Faced with these realities, can Canada’s endorsement of UNDRIP really make a difference, and how will we know if it does?

UNDRIP Commitments Snowball in Canada

This week, the United Nations erupted in cheers when Canada finally entered the global accord recognizing Indigenous Rights. Canada’s Minister of Indigenous Rights and Northern Affairs, Carolynn Bennett, declared, “By adopting and implementing [UNDRIP], we are excited that we are breathing life into section 35 and recognizing it as a full box of rights for Indigenous peoples in Canada,” clearing linking the adoption of UNDRIP to the core guarantees of Aboriginal rights under Canada’s constitution. She announced to the UN Permanent Forum on Indigenous Issues that, “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” This was welcome news after Canada’s 2007 refusal to sign UNDRIP when it was passed by the United Nations, and 2012 partial endorsement that took the position that Canada’s compliance with UNDRIP was “aspirational” and not legally binding.

Canada’s announcement is the latest addition to a growing plethora of pledges of support for the UNDRIP. It is also the most recent example of such pledges of support being couched in language that modify that support by subtly indicating that Canadian law could constrain compliance with UNDRIP.

In July 2015, Alberta’s newly elected government became the first jurisdiction in Canada to publicly pledge to implement UNDRIP, committing to do so “in a way that is consistent with our Constitution and with Alberta law.” Even industry joined in the enthusiastic upsurge of support for UNDRIP. The day after Canada’s historic announcement at the UN, the Canadian Association of Petroleum Producers responded with its own position paper, saying, “CAPP endorses UNDRIP as a framework for reconciliation in Canada. We support the implementation of its principles in a manner consistent with the Canadian Constitution and law.”

The moving pronouncements of support for the principles of UNDRIP are an important step in the process of addressing the complex issues of Indigenous rights in Canada. They are also a welcome response to the Truth and Reconciliation Commission (TRC). The TRC’s final report advocated that the first principle for healing the effects of residential schools is the “use of the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation at all levels and across all sectors of Canadian society.”

But the warm fuzzy words of support for UNDRIP will melt away in the face of the intractable issues of the issues facing Indigenous communities in Canada – such as poverty, socio-economic disadvantage, and environmental degradation of their lands – unless the words are followed by some concrete actions.

Weasel Words?

It is notable that the federal announcement and CAPP commitment this week and the Alberta commitment last year to implement UNDRIP all modify the promise that this will be done “in a manner consistent with the Canadian Constitution and law.”

The qualifying language offers two escape hatches. It could be interpreted as meaning that Canadian law is already ‘consistent’ with UNDRIP and ‘good enough.’ Alternatively, it could be interpreted as meaning that implementing UNDRIP will be limited by what is feasible or ‘legal’ in Canada because there is some inherent conflict between UNDRIP and the Canadian Constitution and law. Both views are problematic.

Minister Bennett is right to calm fears by saying that the principles that Canada is now adopting in UNDRIP, such as ‘free prior and informed consent,’ are not  ‘new’ or frighteningly unfamiliar. As I write in the most recent edition of the Northern Public Affairs, Canada’s political and legal history demonstrates a long adherence to the principle that Indigenous consent may be necessary prior to taking Indigenous lands and resources. Most recently, in the Tsilhqot’in case, the Supreme Court expanded on the legal tests for Indigenous consent in the a case confirming that the Tsilhqot’in people retain land title to and other rights on their lands in the BC interior. The Court explored the principle of Indigenous consent from the perspective of the Tsilhqot’in peoples whose rights are being affected, and while not specifically referencing the UNDRIP in its decision, nevertheless stressed that “consent” is the starting point for analyzing what the Crown can and cannot do where Aboriginal title and rights have been proven.

It is more helpful to understand UNDRIP principles and existing Canadian law on Indigenous rights as mutual interpretation tools in a Canadian context. UNDRIP and Canadian Supreme Court decisions on Indigenous rights are different branches growing in parallel and intersecting on the tree of Canadian law. The common law is, after all, not static. The law is an evolving, growing, organic process whereby our society decides on our collective norms and values. UNDRIP is now an accepted and essential part of those collective norms and we do not need escape hatches to avoid it.

Translating Lovely Words into Action

The real test of the impact of the qualifying language used by Minister Bennett (and by CAPP and by the Government of Alberta), is the practical impacts of implementing UNDRIP now that Canada has fully adopted it. The cheers at the UN for Canada’s reversal of position on UNDRIP occur against the backdrop of news of the kinds of issues all too familiar to Aboriginal communities in Canada: high suicide rates, crumbling reserve infrastructure, and growing socio-economic disparities between Aboriginal and non-Aboriginal communities (as mentioned at the beginning of this article). It also occurs against the backdrop of stories of Indigenous communities successful efforts to protect their lands, resources, and children’s futures.

As the TRC’s final report points out, another core principle for addressing the issues at the heart of the legacy of the broken relationship between Canada and Indigenous peoples is that “Reconciliation must create a more equitable and inclusive society by closing the gaps in social, health, and economic outcomes that exist between Aboriginal and non-Aboriginal Canadians.” Indeed, UNDRIP contains a wide scope of commitments such as improvement of economic and social conditions, the enjoyment of ‘the highest attainable standard of physical and mental health’, and the right to redress for discrimination. Canada’s ambitious verbal commitments to implement the UNDRIP must be matched by practical action on matters such as these.

Control of Lands and Resources Are the Litmus Test

The real litmus test of whether adoption of UNDRIP has a meaningful impact on the wellbeing of Indigenous communities is what happens to control of land and resources. At the heart of the relationship between Canada and Indigenous Peoples, and at the heart of Indigenous cultures, is the relationship with land and the abundance of resources and wellbeing that flows from that relationship.

Christi Belcourt, a renowned artist and Michif (Métis) activist, recently gave a moving response to the commitments to Aboriginal ‘reconciliation’ being bandied about in Canada in the wake of the TRC report. Speaking to the Anishinaabe comedian and writer Ryan McMahon on the Red Man Laughing podcast, Christi said,

   I don’t even know if reconciliation is possible because we are living in this country that is all stolen land. We don’t have the land – the health and wellbeing of our people and nations is dependent on our connection to land. … Everyone is talking about reconciliation all over the place but no one is saying returning the land. Instead, the results of residential schools, multigenerational effects, extreme poverty are all due to our dispossession of the land.

The solution is pretty obvious – it must include land. [It is like] a guy comes over and takes my truck and I see him all over town driving around in my stolen pickup truck. He sees me walking around in my beat up moccasins with holes in them, and he jumps out of his truck and says, “Hey, it’s so nice to see you again, I really miss our friendship.” And then he shakes my hand and says, “I’ll see you around and maybe we can get together for a coffee” and jumps back in my truck and takes off again. It’s really hard for me to see that guy as a friend…

If Canadians are truly interested in reconciling, then they will come and say and ‘how can that be achieved,’ rather than talking about everything but land.”

Three Concrete Practical Steps to Put UNDRIP Into Practice

So what does it look like to put land on the table for serious discussion as part of the reconciliation project and as a concrete aspect of implementing UNDRIP?  Here are four suggestions for practical measures that would demonstrate that the flowery words of UNDRIP support mean something practical for Indigenous communities’ wellbeing:

• Improve Environmental Reviews: A concrete way to implement the ‘prior’ and ‘informed’ aspects of FPIC is through proper environmental assessment (EA). EAs are an important practical tool that – if done right – can address the ecological and socioeconomic impacts of projects on Indigenous communities. The previous government seriously decimated Canada’s federal environmental legislation in 2012 (see my previous blog here). The recent federal budget contained new commitments to overhaul EAs, the Fisheries Act and other environmental legislation. Canada is already hearing from groups about what to do to reform the EA process.

It is not enough to tinker at the edges of the existing and flawed EA process that has been generating significant uncertainty, litigation, civil dissent and project delays. Now is the opportunity to develop the next generation of federal and provincial EA processes that address the procedural and substantive aspects of the requirement for FPIC as well as assure Canadians that developments that proceed are sustainable and in the public interest.

• Require Impact Benefit Agreements:  If a project is acceptable from an environmental and socioeconomic perspective (as demonstrated through proper EAs), then a next practical step for achieving ‘free prior and informed consent’ is to require the negotiation of Impact and Benefit Agreements (IBAs) between proponents and Indigenous communities. IBAs are already necessary under many of the modern land claim agreements in the north for major projects but occur in piecemeal fashion in the rest of the country.

Good IBAs provide benefits that also ensure UNDRIP requirements are met:

• meaningful guarantees of environmental protection and monitoring
• financial compensation for lost use of traditional lands
• equity participation in projects as a form of economic development
• benefits from employment and contracting opportunities, skills and labour training
• social and cultural supports
• effective mechanisms for resolving disputes and
• other benefits for Indigenous communities.

Requiring these types of agreements is a concrete way to implement the UNDRIP commitments to protection of Indigenous lands, compensation for use of their lands and resources, and improvement of economic and social conditions.

• Implement Resource Revenue and Tax Sharing Requirements: One of the key indicators for the social health of Indigenous communities is their ability to participate in and benefit from development on their traditional lands. A key driver of growing disparity between Indigenous communities in Canada is the ability of Indigenous governments to benefit from the revenue from resource development, including royalties and taxes, in the same way that other governments do. Implementing requirements for resource revenue sharing and tax sharing agreements with Indigenous groups would be a concrete way in which the federal government and provinces in Canada could meet UNDRIP commitments to recognize Indigenous peoples’ right to control their lands and resources and economically benefit from development of them. Resource and tax sharing ensuring that Indigenous communities have the resources to provide proper infrastructure, health and other social and cultural supports in communities.

• Renew the Treaties: As my colleague Bob Rae writes here, there is a growing socio-economic and health gap between Indigenous communities in modern land claim agreement areas versus historic treaty areas. A prime example of this is the current situation of the Cree on either side of James Bay. As this news story recounts, there is a striking difference between the current social crisis of the Attawapiskat Cree in Treaty 9 territory on the Ontario side of James Bay and their Cree neighbours in Quebec. What is the difference? The Quebec Cree have a modern land claim agreement with control over their lands, resources, health, education and economic development. The James Bay Cree in Quebec are able to benefit from and have a say about the development happening on their lands. They also received significant cash compensation in the 1970s and 1980s in exchange for the construction of hydro dams in their territory and invested that money into building community infrastructure and successful businesses that now employ their members and others.

My colleague Nancy Kleer notes that “historic treaties were intended to share the wealth of the land and its resources, not give them up in exchange for being placed on reserves to live in poverty.” Yet members of Attawapiskat live in abysmal social conditions while a diamond mine operates next door.

In order to meet UNDRIP’s guarantees, it is imperative to commence a process of treaty renewal to address this serious and growing inequity. A treaty renewal process will ensure that Indigenous communities in the historic and numbered treaty areas of Canada have the same opportunities to participate in decision-making about their lands and resources and attain the same level of health and economic stability as Indigenous communities in the modern land claim agreement areas, as required by the UNDRIP commitments. Treaty renewal tables are also a practical place to negotiate the other action items I mention above.

These four actions are the types of measures that Indigenous communities will look at to see if Canada’s new enthusiastic commitment to UNDRIP is not ‘weasel words’ but real commitments to structural change in the relationship.

As Christi Belcourt said, “If Canadians are truly interested in reconciling, then they will come and say ‘how can that be achieved’, rather than talking about everything but land.”

By Lorraine Land