The Liberal government's decision, announced by Justice Minister Jody Wilson-Raybould, not to adopt the United Nations Declaration on Indigenous Peoples (UNDRIP) as Canadian law was greeted quite differently across the country.
Some indigenous activists immediately criticized the government for backing away from a major election promise and a clear moral commitment. Others, who felt that indigenous rights had gone far enough, seemingly welcomed the statement as a sign of belated good sense.
The reality is that UNDRIP is far from gone on the Canadian scene. It will provide an important foundation for the evolution of Canadian policy and programming with indigenous peoples.
We support the spirit and intentions of UNDRIP, and believe the sincerity of the Trudeau government's desire for a new and sustainable relationship with indigenous peoples in Canada. If the black letter implementation of UNDRIP is not the ideal model for Canada, then it falls to the government of Canada and the indigenous people of Canada to define a new indigenous policy environment.
For the past 30 years, Canadians and their governments have refused to sit down, with true commitment and resolve, to put aside the country's colonial and racist past and to develop strategies that will actually work for indigenous people. They have, instead, left it to Canada's courts and tribunals to decide on a full range of indigenous policy issues, from resource rights to membership, social welfare programs and territorial rights.
The discussion around UNDRIP provides an opportunity to take a new approach. Indigenous Canadians and the governments (federal, provincial and territorial) in Canada should commit to the co-production of a new political and legal framework for indigenous affairs. Many key elements are in hand: the reports of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission, hundreds of crucial court decisions, years of experience with (mostly failed) government policies, and countless ideas and suggestions that have been percolating among indigenous leaders, largely ignored, for decades.
What has been missing is a true commitment to a fundamental rethinking of Canada's relationships with indigenous peoples. The Trudeau government appears to have made such a commitment and there are ample signs that real work is being done by indigenous organizations as well as the government of Canada. If, in the spirit of UNDRIP and the call for national reconciliation, some major and innovative initiatives are brought forward, this country might finally be onto something.
What should occur – and what appears to be under way – is called the co-production of policy.
In the past, the government of Canada developed policy, sometimes with extensive consultations and even intense negotiations, and then adapted it through legislation or budgetary allocations. We all know that this has not worked out well for indigenous peoples in Canada. A government-centred approach, where the government of Canada attempts to develop the best possible policies for indigenous peoples, has the lingering aroma of paternalism and colonialism. In this vital policy field, something new is required.
The Declaration, emotionally powerful though it is, does not speak directly to Canadian circumstances. Treaties, Canadian law and government policies address, at least in part, some of the priorities laid out in UNDRIP. What Canada does not need is to shoehorn a complex international document into Canadian legislative and legal practice, but rather to create a made-with-indigenous-peoples template and structure. Indigenous peoples need to define the elements of indigenous policy which works for them.
If Canada wants to honour the spirit of UNDRIP, as the national government and several provincial governments have said, it should focus its efforts on working collaboratively with indigenous peoples and organizations to co-produce a policy and budgetary priority framework for Canada.
The government of Canada may have said that it is not going to translate UNDRIP into Canadian law. But the Prime Minister and his colleagues have made it absolutely clear that the status quo is not acceptable. The next step – and it would be one of enormous significance – is to indicate that the new relationship is founded on true collaboration and real partnership, with the unequivocal goal of ensuring that indigenous peoples play a central role in the creation of indigenous policy and priority setting in Canada.
Blaine Favel is chancellor of the University of Saskatchewan. A lawyer who works in the oil and gas and agri-business sectors, he is also the former chief of the Federation of Saskatchewan Indian Nations. Ken Coates is a Canada Research Chair in Regional Innovation at the Johnson-Shoyama Graduate School of Public Policy at the University of Saskatchewan. He is a Munk Senior Fellow with the Macdonald-Laurier Institute.