UNDRIP Won’t Help Marginalized Aboriginals

Commentary, Aboriginal Futures, Brian Giesbrecht

Bill C-262, the proposed legislation requiring Canadian laws to meet an undefined measure of compliance with the United Nations Declaration on the Rights of Aboriginal Peoples (UNDRIP) is being held up by Conservative senators.

Tax paying Canadians should be thankful.

Advocates of the Bill say that the legislation will create no additional legal impediments for Canada, but it will significantly improve the lives of poor and marginalized Indigenous people.

Opponents, however, say that the legislation will create additional obstacles to resource development. They say it will grant a virtual veto on resource development to each of the 638 or so First Nations. They also say the Bill will enrich privileged people, chiefs, band counselors, and their lawyers, but will do nothing to improve the lives of the poor and marginalized Indigenous people.

The opponents of the Bill are right to worry because the advocates are not being truthful. This is bad legislation, and the Conservative senators are absolutely right in stopping it.

An analogous situation happened in the early 1980s when Pierre Trudeau was determined to push through the Charter of Rights. He was thwarted by some western and maritime premiers who were concerned that the Charter would result in Canada’s elected legislators surrendering power to the unelected judges — which is exactly what happened.

These premiers were also concerned that the Indigenous rights in Section 35 would create new laws that would interfere with resource development. This also happened.

Of course, the chiefs and their advocates swore that they were not trying to create new laws. With this promise, the premiers relented, but only after the word “existing” was added at Peter Lougheed’s insistence.

But before the ink dried on the Charter, Indigenous advocates sent their lawyers to court arguing for new and expanded legal rights for Indigenous groups.

Soon after, the Supreme Court — drunk with newly acquired powers — interpreted Section 35 to expand Indigenous entitlements. Today, Section 35 has been interpreted so broadly that the premiers who reluctantly signed the Charter would be horrified at what has been added.

But, all these new rights and all the money that has flowed to groups as a consequence have not improved the lives of poor and marginalized Indigenous people. The money, however, certainly has enriched many middle-class people, lawyers, chiefs, counselors, and entire university departments.

Federal studies clearly show that the gap between poor reserve residents and other Canadians has not changed significantly since the Charter in 1982. This is astounding. By one measure, one trillion dollars has been spent on reserves, and yet the lives of its poor majority have not improved relative to the general population of Canadians.

So, when the advocates of C-262 say that the lives of Indigenous people will be improved by passing this Bill, a more honest claim would be that some people will benefit from the virtual veto on resource development that the legislation will give to the Indigenous groups. But, the legislation will not help the poor marginalized Indigenous people.

When these shrill advocates of what is known as “the Indian Industry” assure everyone that Bill C-262 will not create a virtual veto on new resource development, as the Conservative senators fear, we should remember how much their assurances were worth in 1982.

The assurances were not worth the paper they were written on.

— Brian Giesbrecht, a retired judge is a senior fellow with the Frontier Centre for Public Policy.