OTTAWA – There’s nothing frightening about adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples, Indigenous Affairs Minister Carolyn Bennett said Tuesday at the UN.
Bennett earned a standing ovation from a UN forum in New York by announcing that Canada is now a full supporter of the 2007 declaration, “without qualification.”
But what that declaration signifies in the Canadian context depends on who you ask.
In the words of one lawyer who represents indigenous resource interests: “Treaty making starts again today.”
UNDRIP, the acronym by which the declaration is known, describes a global set of collective and human rights covering indigenous issues including language, identity, culture and traditions, health and education and free, prior, informed consent over resource extraction. The declaration is not considered legally binding.
“What does this mean for Canada now?” Bennett told the UN’s permanent forum on indigenous issues.
“It means nothing less than a full engagement on how to move forward with adoption and implementation, done in full partnership with First Nations, the Metis nation and Inuit peoples.”
Canada is uniquely placed, she said, because it is one of the few states in the world that has already incorporated indigenous rights, in Section 35 of the 1982 Constitution Act.
“By adopting and implementing the declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for indigenous peoples in Canada,” said the Liberal minister.
Canada was one of four countries, including Australia, New Zealand and the United States, that voted against the declaration when it was first passed in 2007 — even though Canadian diplomatic officials had helped draft the original declaration.
The former Conservative government initially argued that the “free, prior and informed consent” provisions amounted to a de facto indigenous veto on major resource projects, and questioned how UNDRIP could be accommodated within existing Canadian constitutional protections.
Bennett did not directly address those concerns Tuesday, but said the declaration fits within Canada’s long history of treaty and constitutional rights.
“Let’s be honest: implementing UNDRIP should not be scary,” she said.
“Recognition of elements of the declaration began 250 years ago with the Royal Proclamation, which was about sharing the land fairly. UNDRIP reflects the spirit and intent of our treaties.”
The country’s two largest resource extraction industry associations welcomed the adoption of UNDRIP, with both the Canadian Association of Petroleum Producers and the Mining Association of Canada saying the declaration largely mirrors practices already adopted by resource companies over the past decade.
“These are opportunities to recast relationships,” Brian McGuigan, CAPP’s manager of aboriginal policy, said in an interview with The Canadian Press.
“A lot of our companies feel they already achieve a lot of what’s required by UNDRIP in a corporate context and in a resource development context.”
Pierre Gratton, president and CEO of the mining association, presented the Liberal government’s position as correcting a historical anomaly.
“We’ve been historically seen as a leader but then we had this funny situation at the UN where we were a dissenter on something that was so important to indigenous peoples worldwide,” Gratton said in an interview.
“This move really puts us back where we properly belong and also where I think, in practice, we have largely been.”
But Larry Innes, a lawyer with Toronto firm Olthuis, Kleer and Townsend who represents First Nations groups, said resource industries are “looking a bit in the rear-view mirror” in their assessments of UNDRIP.
Consultation with indigenous communities on mitigation measures for major resource projects has become established practice, but free, prior and informed consent means much more than that, Innes argues.
Comments this week from Bennett and Justice Minister Jody Wilson-Raybould suggest a new nation-to-nation relationship is indeed in the works.
“It’s easy to be dismissive of this as a lot of fuzzy warmth,” said the lawyer, whose clients include the Athabasca Chipewyan First Nation in the heart of oilsands country.
“But for those of us who have been in the trenches on this for a while, we’re hearing different things today than we have in the past.”
Since the patriation of the Constitution in 1982, governments have taken the view that Section 35 is a mostly empty vessel until courts read rights into it through litigation, said Innes.
Bennett on Tuesday acknowledged Section 35 entails a full suite of rights, with UNDRIP as the backdrop.
Treating indigenous peoples as governments to be consulted rather than simply stakeholders is “a whole new ball game,” said Innes. “Treaty making starts again today.”