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Brian GiesbrechtBritish Columbia has become the first province to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). And except for the opposition of a determined group of Conservative senators, the federal government would have adopted UNDRIP as actionable law before last fall’s federal election.

Re-elected Prime Minister Justin Trudeau has already announced that his minority government intends to bring the UNDRIP legislation back to Parliament at the first opportunity.

Currently, Trudeau’s UNDRIP is an aspirational document only – federal and provincial governments would be expected to aspire to meet its demands but would not be required to do so.

But if it is fully implemented as actionable by the federal government, every law in the land would be expected to comply with UNDRIP. And any allegation that a law didn’t comply with UNDRIP could result in court action and even generate a claim to the United Nations.

What do Canadians think about UNDRIP? And what do Canadians think about other ambitious Indigenous-related legislation the prime minister may introduce to move UNDRIP from a goal to law?

In fact, Canadians can’t know the risks, not having been involved in UNDRIP in any meaningful way. Even our elected representatives in Parliament seem to have a very poor understanding of what could be profoundly important legislation. And few in the business community have taken the time to understand UNDRIP and what it could mean for commerce.

UNDRIP and the proposed Section 35 rights and recognition framework legislation would, if adopted and actionable, have profound implications for this country. But the average Canadian knows practically nothing about what’s being proposed. Even those to be directly affected – those living on reserves – haven’t been brought into the discussions.  

UNDRIP is the result of decades of advocacy on the part of Indigenous groups to advance their claim that they should have collective rights over and above the human rights belonging to other citizens of a state.

There are good reasons why New Zealand, Australia, the United States and previous Canadian governments have consistently refused to fully implement UNDRIP.

Gordon Gibson, who worked under Pierre Trudeau, has argued UNDRIP should not be formally adopted. He offered this advice to Justin Trudeau after his 2015 election win:

“UNDRIP – Don’t go there. The 2007 United Nations’ construct is a muddy thing full of problems, without even a definition of Indigenous. Because our Supreme Court has developed a doctrine of incorporating international human-rights documents into our law, ratifying UNDRIP would lead to even more chaos in our painfully constructed law to date. Almost all non-conflicted legal experts agree. We have nothing to learn from a UN body dominated by the world’s serial human-rights abusers. Do not proceed with the formal adoption of UNDRIP. Keep it aspirational and no one will hate you but the aboriginal bar.”

Indigenous businessman and leader John Kim Bell summed it up this way: “Implementing UNDRIP would probably paralyze the entire Canadian economy.”

Ontario lawyer and writer Peter Best describes in his book There is No Difference how legislating UNDRIP would inevitably lead to the diminution of Crown sovereignty in the same way that our Supreme Court’s ill-conceived “duty to consult and accommodate,” as formulated in the Haida Nation line of cases, has already done.

Past deputy minister of Indian Affairs Harry Swain provided this stern advice: “UNDRIP is a ringing declaration of rights without a word on responsibilities, or conflict resolution, and is therefore seriously incomplete.”

Swain listed a myriad of problems with UNDRIP, including raising intriguing questions about the preservation of culture.

Tom Flanagan, Canada’s leading expert on Indigenous law, has a somewhat contrary view about the implementation of UNDRIP in British Columbia, suggesting its adoption would, basically, be “virtue signalling” and would not grant a veto to B.C’s First Nations.

But Flanagan holds that federal adoption of UNDRIP would lead to providing a virtual veto by First Nations over resource development. Flanagan argues that such a veto is in no one’s interests:

“Resource Industries are a leading source of private sector employer of aboriginal people in Canada and the only hope for First Nations in remote locations to work their way out of poverty. It is not in anyone’s interests to handicap Canada’s resource industries by endowing aboriginal leaders with veto power over all proposals.”

A group of determined Conservative senators opposed to UNDRIP are portrayed by the CBC, the Liberals and Indigenous advocates as old dinosaurs unreasonably standing in the way of Indigenous people.

These senators believe UNDRIP would make resource development much more difficult, granting individual First Nations virtual veto power over any proposed resource development anywhere near their communities.

These senators also believe Canada should not grant collective rights for Indigenous people. Rights binding residents to their chief and reserve are at the root of so many problems. UNDRIP-legislated would only add to the apartheid reserve mindset.

It’s also a legitimate concern that complaints about breaches of UNDRIP legislation could wind up before international panels. With representatives from countries with appalling human rights records, those questionable panels would rule on Canadian laws.

Even the likely increase in litigation at home from UNDRIP legislation should be seriously considered. And there are already 45,000-plus Indigenous claims in the works.

And would the full implementation of UNDRIP make it even harder to undo the entire Indian Act and reserve system, a system based on what made sense in 1763?

The backward notion that Indigenous people should be dealt with as a giant tribe instead of as individual Canadian citizens would continue.

The full implementation of UNDRIP is essentially a vanity project for the prime minister. Even former justice minister Jody Wilson-Raybould, herself Indigenous, pronounced full implementation “unworkable.

If the full implementation of UNDRIP held out the promise of finally dealing positively with the chronic poverty and unemployment on reserves, it might be worth doing no matter the cost. But it wouldn’t.

There’s no evidence that a piece of legislation that would virtually lock in place a way of life that disappeared long ago would result in anything more than endless litigation, division, costs and the preservation of a stagnant status quo.

Citizens should demand the right to participate in these important discussions.

And, as the Globe and Mail suggested in November, the federal government should slow down on the full implementation of UNDRIP and use the B.C. experience as a guideline.

Brian Giesbrecht is a retired judge and a senior fellow with the Frontier Centre for Public Policy.

© Troy Media


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