Depending on who you believe, the United Nations Declaration on the Rights of Indigenous Peoples will be the end of the country as we know it, or a progressive new instrument that will end centuries of conflict and unlock peace and harmony in its wake.
We’re about to find out.
While the federal government officially adopted the UN declaration in the spring of 2016, it has yet to implement it. That has not stopped British Columbia from forging ahead on its own.
In this week’s Speech from the Throne, the province’s NDP government announced it would be bringing in legislation to implement UNDRIP, the acronym by which the UN declaration is most often referred. That news has many already bracing for impact.
In its broadest form, UNDRIP recognizes Indigenous peoples’ basic human rights, as a collective or as individuals. Those rights extend to self-determination, language, equality and land, and goes beyond protections set out in Section 35 of the Constitution. However, among UNDRIP’s 46 guiding principles, one in particular has garnered most of the attention.
Article 32 states that governments shall consult and co-operate with Indigenous peoples and obtain “their free and informed consent” prior to the approval of any project affecting their lands and territories. And some, including B.C.’s previous Liberal government, take the view that that amounts to a veto over future projects.
I would not pretend to be expert enough to predict what great calamity, if any, awaits B.C. However, it seems reasonable to be concerned about UNDRIP’s bearing in a province where there are more than 200 First Nations and only a handful of treaties. Indigenous groups have laid claim to virtually the entire province.
UNDRIP grants Indigenous peoples the right of redress for “the lands, territories and resources which they have traditionally owned or otherwise occupied or used and which have been confiscated, taken, occupied or damaged without their free, prior and informed consent.” The declaration also states that redress should take the form of land, resources or financial compensation.
If that’s the case, a potential price tag may await – in the multiple billions of dollars.
Others have expressed concern that once legally weaponized, UNDRIP will unleash a fresh cascade of litigation that will clog the courts for years to come. There is worry, as well, that the declaration helps further construct a parallel society based on race.
Article 8 states that Indigenous peoples have the right not to be subjected to forced assimilation, which will make removing children from homes – in the sad cases where removal is tragically, a necessity – more difficult. On the other hand, First Nations children are placed in welfare care at 12 times the rate of other children; this is a systemic problem that UNDRIP may help to alleviate.
The benefits to the declaration being implemented are, in fact, glaringly apparent to some. Mary Ellen Turpel-Lafond, the former judge, B.C. children’s advocate and now director of residential school history and dialogue centre at the University of B.C., believes the declaration is a positive step in the evolution of Indigenous relations in Canada.
“It takes us from this era of constant conflict, denial, expensive court cases and endless fighting and pushes us into a different, more collaborative path,” she told me in an interview. “We can’t stay where we are any longer. It’s simply not working.”
She believes there has been tremendous fear-mongering around what “free, prior and informed consent” means. It’s not her view that it is tantamount to a veto.
“Everything has limitations,” Ms. Turpel-Lafond said. “All rights are subject to limitations. They are guideposts you go by but they also have constraints that reflect the situation and context. It’s not a veto concept. It’s about pushing us into a process of greater consultation instead of working in isolation and having decisions bounced back [by the courts].”
My own sense is UNDRIP will be neither the panacea its proponents are predicting, nor the chaotic disruptor its detractors suggest. The highest court in the land has already given Indigenous peoples much of the power stored in the UN declaration. Those decisions have already begun pushing us down a path of greater consensus and partnership.
Companies and governments in Canada know that it is no longer business as usual – the plight of the Trans-Mountain pipeline expansion being a sterling case in point.
If nothing else, UNDRIP represents a change in the country’s relationship with its Indigenous peoples. And it’s difficult to argue it isn’t needed.