The Truth and Reconciliation Commission's call for Canada to adopt a landmark UN declaration on indigenous rights is drawing attention to a long-standing debate about the document's compatibility with Canadian law.
Ottawa endorsed the United Nations Declaration on the Rights of Indigenous Peoples in 2010, but has not taken steps to implement it, repeatedly expressing concern about some of its contents. The commission this week called on all levels of government to implement the declaration, saying it should be used as a framework for reconciliation with aboriginal people in Canada.
The declaration, which was voted on in 2007, is a global statement on the individual and collective rights of indigenous peoples. It details the rights of indigenous peoples to self-determination, autonomy and nationality, as well as to land and natural resources.
Canada initially voted against the UN declaration along with the United States, New Zealand and Australia, saying that resource rights and other claims in the document's text could clash with the country's constitution. Several years later, Ottawa endorsed the document as "aspirational," while noting its concerns with some of the declaration's content.
Ken Coates, a researcher at the University of Saskatchewan who studies aboriginal rights and history, said the government had reasons to be wary of how the declaration might affect Canada.
"Long before the Conservative Party was in power, the Liberals before had some big issues with it," he said. "Not because it said things that were upsetting to the governments of the country … but because of concern that the requirements in the declaration interfered with and overlapped with a bunch of Canadian laws and regulations, including things like modern land-claims treaties."
Prof. Coates called the UN document a powerful and emotional statement about the degree to which indigenous peoples around the world have shared a similar history of mistreatment through colonialism and occupation. However, he said it may not effectively respond to the needs and challenges of the 21st century.
If the declaration were ever considered to be legally binding, Prof. Coates said, it could "disrupt some very carefully developed and well-thought-out collaborations between aboriginal and non-aboriginal people."
At issue is a legal requirement to consult and accommodate aboriginal people in circumstances in which their rights may be affected. Ottawa has argued that a shift to free, prior and informed consent – a concept envisioned in the UN declaration – could go further, possibly giving aboriginal people the power to veto a proposed project.
Aboriginal groups who support the document's implementation point out that the term "veto" does not exist in the UN declaration's text. The rights outlined in the document are relative, rather than absolute, they say, which means they must still be balanced against the rights of others and principles of good governance.
Paul Joffe, a lawyer representing the Grand Council of the Crees, said the declaration is drafted in broad terms and does not necessarily have to be enshrined in Canadian law on a line-for-line basis.
Instead, the government could work with aboriginal groups to develop a plan for interpreting the document in a manner that would be compatible with Canadian law, Mr. Joffe said. "It's a pretty collaborative process, and the government can choose to go one way or another on how it might implement [the declaration]," he said.
Mr. Joffe added that free, prior and informed consent should not be viewed as a departure from Canadian legal precedent. That's because previous court rulings on aboriginal rights have already indicated that full consent may be required in some cases, he said.