Jody Wilson-Raybould is the independent member of Parliament for the British Columbia riding of Vancouver Granville and the author of From Where I Stand: Rebuilding Indigenous Nations for a Stronger Canada. Her memoir, “Indian” in the Cabinet: Speaking Truth to Power, will be published later this year.
So here we are again.
For more than a decade, Parliament has had opportunities to consider legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Bill C-15, the Liberal government’s proposed law, is the latest of these and is currently moving through the House of Commons.
Bill C-15 is effectively the same as the previous versions of private members’ bills introduced in 2008 by Liberal MP Tina Keeper and then in 2016 by NDP MP Romeo Saganash. Short and high-level, Bill C-15 – like the ones before it – affirms the UNDRIP as applying to the laws of Canada, requires that an action plan be developed to meet the objectives of the UNDRIP, and requires the Government of Canada to take all measures necessary to align the laws of Canada with the UNDRIP.
Also, like the previous proposals, Bill C-15 does not say how the government is to do any of this, does not commit resources to implement the actions, creates no oversight or accountability of government implementation of the bill, and has no specific mechanisms for implementing the human rights of Indigenous peoples on the ground.
Amazingly, the debate around Bill C-15 continues to remain somewhat incoherent, just as it has been in the past. At the same time, we hear: “the bill is too strong in upholding Indigenous rights, in particular achieving the free, prior and informed consent of Indigenous peoples” (some conservative and industry voices); “the bill is colonialist and racist and will further oppress Indigenous peoples” (some Indigenous and non-Indigenous activists, experts and community voices); and “the bill must be passed and sets a foundation for decolonization” (most Indigenous advocates, experts, leaders, and community voices as well as many allies).
‘A long time coming’: UBC professor joins UN group for Indigenous issues
Liberal pass motion to impose closure on UNDRIP bill, limiting time for debate
But is Bill C-15 any of the things these groups say it is? No. It certainly does not entrench the status quo, but neither does it shatter it. It is a small step forward that will require significantly more legislative, policy and practice changes for it to truly address our legacy of colonialism.
Why do I say this?
It is imperative to understand that in Canada’s history, government legislation has been a central weapon in the oppression of Indigenous peoples. Residential schools; shameful rates of children in care; murdered and missing Indigenous women and girls; the overrepresentation of Indigenous people in the criminal justice system and many other unjust realities have their roots in Crown legislative action. Sometimes this legislative action is explicit, most notoriously the Indian Act, which at once colonized and criminalized many aspects of First Nations and Inuit culture, society and governance. Sometimes this legislative action is through omission, including ignoring the existence of an Indigenous people (such as the Métis Nation), or passing legislation on the premise that no Indigenous title and rights, including treaty rights, exist.
This remains, for the most part, the legislative reality today federally and provincially.
This has to change. Laws like Bill C-15 and British Columbia’s Declaration on the Rights of Indigenous Peoples Act (passed in 2019) are a step – however small – in the right direction, and that is the main reason to support them. These laws are part of the long overdue, and urgently necessary work of transforming colonial relations to ones based on proper nation-to-nation relationships that recognize Indigenous self-determination and the inherent right of self-government.
In truth, passing laws to uphold the basic human rights of Indigenous peoples is not a step we should have ever had to take. The UNDRIP is the specific application, in the context of Indigenous peoples, of long-established international human-rights norms, including those in the Universal Declaration of Human Rights. Canada has long been a supporter of these international human-rights norms, but not in the context of Indigenous peoples. It is a testament, both to the double standard wherein Canada prides itself on being a human-rights champion on the world stage while denying the basic rights of Indigenous peoples, and to the lack of political will to confront this pattern over generations, that we have to pass new laws today that say the human rights of Indigenous peoples will be respected.
So while it is vitally important that legislation starts being used as a source of good (rights recognition) rather than evil (colonization), there should be no illusions that Bill C-15 is more than a starting point of the legislative work that must be done, and a marker that we have a long way to go. The day after Bill C-15 passes, the Indian Act will remain on the books unchanged. All federal laws and policies that ignore the existence of Indigenous title, rights and treaties will remain in place. There will be obligations on the government to start taking actions to uphold the rights in the UNDRIP, but there will be no mechanisms (except perhaps the courts, as has always been the case) to ensure it does so, or to tell it how this must be done. There will be no new requirements on how public officials make decisions, act or interact with Indigenous peoples, except the argument they should use the UNDRIP to interpret law and policy (and the standards of the UNDRIP are open to many interpretations).
What government has always resisted – including the Trudeau government, when it abandoned its own platform commitments from 2015 – is doing what true reconciliation requires. This means decolonizing its own structures, laws, policies and practices so that it can get out of the way of Indigenous Nations as they determine and shape their futures.
What does the framework for implementing Indigenous rights look like? Well, the core elements have always been the same and have long been known. Public officials should be required by law to exercise their obligations, consistent with the recognition of rights. Legislative mechanisms for accountability, oversight and dispute resolution related to Crown actions in relation to Indigenous rights are needed. When First Nations choose to rebuild their Nations and governments, Canada must recognize those governments, end the imposition of the Indian Act on that Nation, and support a proper fiscal arrangement with that government so it can fulfill its governance roles. New policies and mandates must be adopted so that where negotiations are required, they are principled and reflect the recognition and implementation of Indigenous title, rights and treaties.
On Feb. 14, 2018, Prime Minister Justin Trudeau stood up in the House of Commons and gave a historic speech saying his government – the government I was then a part of – would do the necessary hard work and create the framework to take concrete action on all of these things by the end of that year. None of this happened. This government, like governments past, has not had the political will to follow-through.
One can imagine a government that has some trust and credibility on Indigenous matters proposing a law such as Bill C-15 and then being able to build some consensus around it as a renewed starting point for action. Indeed, this is exactly what happened in British Columbia when Premier John Horgan and his NDP government said they were going to pass this legislation early in its mandate, moved it forward, and saw all parties pass it unanimously in the provincial legislature along with broad Indigenous support. Indigenous leaders knew the bill was only a small but important step forward – but there was benefit of the doubt that the government understood that more work needed to be done, and they might actually do it (the verdict is still out on that, of course).
But that is not the situation with the Trudeau government. There is little faith – and little reason for any – that this government will follow through to do the real work of getting its house in order. While there have been some needed investments in social well-being, it has been six years of big promises on Indigenous rights with few substantive and long-term outcomes to show for it. Given this, who can blame certain Indigenous voices for being so against the bill? And who can blame other Indigenous voices for being cautious and lukewarm at best in their support?
Indigenous peoples from around the world, including here, have advocated for the UNDRIP for many years. It is an important instrument that affirms minimum human-rights standards that must be upheld for the survival, dignity and well-being of Indigenous peoples. Bill C-15 is useful and helpful as part of breaking the intransigence around using legislation to affirm Indigenous rights, and for upholding the standards in the Declaration.
But given all that must be done, and given how minimal the bill is and how the Trudeau government’s record has been more rhetoric than substance, it is unlikely the bill, if passed, will effect tangible and meaningful change in the near future.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.