UNDRIP – Behind Closed Doors

Essay, Aboriginal Futures, Brian Giesbrecht

British Columbia has become the first province to adopt the United Nations Declaration on Aboriginal Peoples (UNDRIP). Except for the opposition of a determined group of Conservative senators, the federal government would have adopted UNDRIP as actionable law before the recent federal election. Now, the re-elected Prime Minister has already announced that his minority government intends to bring the UNDRIP legislation back to Parliament at the first opportunity.

Currently, the Prime Minister’s UNDRIP is an aspirational document ‘only’ – that is, governments, federal and provincial, would be expected to aspire to meet its demands, but would not legally be required to do so. But, if it is fully implemented as actionable law by the federal government, every law in the land would be expected to comply with UNDRIP. And, any allegation that a law did not comply with UNDRIP could then result in court action, even to generate a claim to the United Nations.

What do Canadians think about UNDRIP? And, for that matter, what do Canadians think about other ambitious Indigenous related legislation that the Prime Minister may introduce towards moving UNDRIP from an aspirational goal to actionable law? In fact, Canadians cannot know the risk that could come with that – not having been involved in understanding UNDRIP in any meaningful way.  

Even our elected representatives in Parliament seem to have a very poor understanding of what could be profoundly important proposed legislation if supposably aspirational legislation is made actionable. As for the business community, few have taken the time to understand UNDRIP and what it could mean for commerce. 

Question your local MLA or MP on UNDRIP and you are most likely to see what I mean. Their attitude seems to be that someone else is looking after the best interests of citizens on this complicated issue. But, as with the old Gershwin tune: “It ain’t necessarily so”.

When UNDRIP was previously being discussed before the federal election, and similarly when the even more ambitious section 35 rights and recognition framework legislation was being discussed, meetings were held behind closed doors with no attempt to even tell the public what the proposed legislation was all about. 

UNDRIP and the proposed section 35 rights and recognition framework legislation would, if adopted and actionable, have profound implications for this country. But, the average Canadian knows practically nothing about what is being proposed. In fact, even those to be directly affected – status Indians living on reserves – have not been brought into the discussions.  

Government representatives and AFN chiefs met in private, while an incurious media ‘snoozed’. As for the Canadian public, they have received the mushroom treatment.

UNDRIP is the result of decades of advocacy on the part of Indigenous groups to advance their claim that they should have collective rights reign over and above the human rights belonging to other citizens of a state.  

But, is it the wonderful advance that B.C’s political leaders are claiming?  

There are good reasons why New Zealand, Australia, the United States, and previous Canadian governments, have consistently refused to fully implement UNDRIP. And, some of Canada’s best thinkers have expressed in clear terms why adopting UNDRIP (except for aspirational purposes) would be a very bad idea. 

Gordon Gibson, who worked under Pierre Trudeau, has argued why UNDRIP should not be formally adopted as actionable law (Gibson and Tom Flanagan are Canada’s “eminent grises” – top experts – on Canadian Indigenous issues).  

This is the advice Gibson provided the Prime Minister after his 2015 election win:

“UNDRIP – Don’t go there. The 2007 United Nations’ construct is a muddy thing full of problems, without even a definition of Indigenous. Because our Supreme Court has developed a doctrine of incorporating international human-rights documents into our law, ratifying UNDRIP would lead to even more chaos in our painfully constructed law to date.  Almost all non-conflicted legal experts agree. We have nothing to learn from a U.N. body … dominated by the world’s serial human-rights abusers. Do not proceed with the formal adoption of UNDRIP. Keep it aspirational and no one will hate you but the Aboriginal bar.” 

Well known Indigenous businessman and leader John Kim Bell summed it up this way: “Implementing UNDRIP would probably paralyze the entire Canadian economy”.

Ontario lawyer and writer Peter Best describes in detail in Chapter 34 of his book “There is No Difference” how legislating UNDRIP would inevitably lead to the diminution of Crown Sovereignty in the same way that our Supreme Court’s ill-conceived “duty to consult and accommodate,” as formulated in the Haida Nation line of cases, has already done. 

Well-respected past deputy minister of Indian Affairs, Harry Swain, provided stern advice not to even consider adopting UNDRIP: “UNDRIP is a ringing declaration of rights without a word on responsibilities, or conflict resolution, and is therefore seriously incomplete.”

Swain listed a myriad of problems with UNDRIP, including raising intriguing questions about the preservation of culture. For instance, he asks:

If an Indigenous tribe that had a culture of slavery, would it be able to enforce that “cultural right”? Pacific Coast tribes had a strong history of slavery. Similarly, questions could be asked about the treatment of women. Many of the Indigenous cultures treated women in a way that would not be acceptable today. And, would Canada’s Human Rights’ Charter override UNDRIP? 

Could and would such questions be taken to our courts, or to the United Nations in New York? Would Canadian courts be asked to enforce cultural practices that are completely repugnant to modern sensibilities? The answer to these questions and others is “who knows”. 

Would it not be ‘crazy’ to put ourselves in a position where our courts – and perhaps international tribunals – could or would be besieged by totally unproductive claims. Why should Canada’s system of justice be virtually turned on its head for the sake of pleasing the 1.5% of the population that remain living on reserves? 

When it is taken into account that each of the 635 or so “first nations” could and most likely would individually claim their own specific sets of cultural rights, traditions and laws, the complexity of what the formal adoption of UNDRIP would well entail becomes even more clear. Apart from providing lawyers – all to be paid for by the Crown – with work for years, it is unclear why this country would benefit from twisting itself into knots just to please some very vocal critics. 

Consider the Christian scholars of the early Middle Ages who wasted their lives trying to determine how many angels could dance on the end of a pin. Surely, Canada doesn’t need or want to go that route with UNDRIP?

The risks are enormous – and apart from satisfying the ego of a determined Prime Minister and the rather fickle sensibilities of a ever-demanding Indigenous lobby – the benefits to the country of legislating UNDRIP are hard to see.

Tom Flanagan, Canada’s leading expert on Indigenous Law, has a somewhat contrary view about the implementation of UNDRIP in British Columbia, suggesting that its adoption would, basically, be  “virtue signalling”, and would not grant a veto to B.C’s First Nations. However, Flanagan is commenting on a provincial adoption of UNDRIP, not on a federal adoption.

Flanagan’s opinion about a federal implementation of UNDRIP is different than his view about B.C.’s planned adoption. Flanagan holds that a federal adoption of UNDRIP would lead to providing a virtual veto by First Nations over resource development. Flanagan argues that such a veto is in no one’s interests. 

This is how he puts it:

“Resource Industries are a leading source of private sector employer of aboriginal people in Canada and the only hope for First Nations in remote locations to work their way out of poverty. It is not in anyone’s interests to handicap Canada’s resource industries by endowing aboriginal leaders with veto power over all proposals.”

In any event, Gibson and Swain’s strong criticisms of UNDRIP should be carefully reviewed,  leaving the reader to form his or her own conclusion. 

As to Professor Tom Flanagan’s view, he has written extensively on this subject and on his opposition to a full implementation of UNDRIP by federal legislation.

There are also reasons why British Columbia’s decision to formally adopt UNDRIP should not be taken as a positive signal by other leaders, virtue signalling or not. 

Put simply, B.C’s present Premier is not someone who is held in universal high regard. B.C.’s Premier has, in the past, refused to cooperate with Alberta’s reasonable request to transport its oil and gas to port, his opposition supposedly on ecological grounds. At the same time, British Columbia is a major exporter of the much dirtier coal – Vancouver is North America’s largest coal exporter port. The hypocrisy of refusing to allow the transit of Alberta’s oil while presiding over a virtual coal empire is staggering. 

So far, the only reason why UNDRIP hasn’t been proclaimed in Canada is because of the opposition of a group of determined Conservative senators. They are portrayed by the CBC, the Liberals, and Indigenous advocates as old ‘dinosaurs’ unreasonably standing in the way of Indigenous people. 

For one reason, these senators believe that UNDRIP would make resource development much more difficult, granting individual First Nations virtual veto power over any proposed resource development if to be anywhere near their communities. 

Those Conservative senators also believe that Canada should not grant collective rights for Indigenous people. It is those collective reserve rights that are binding reserve residents to their chief and reserve that are at the root of so many problems. UNDRIP-legislated would only add to the apartheid reserve mindset.

It is also a legitimate concern that complaints about alleged breaches of an UNDRIP legislation could wind up before international panels. With UN panels including representatives from countries with appalling human rights records, those questionable panels would be ruling on Canadian made laws. Even the likely increase in litigation at home resulting from UNDRIP legislation should be seriously considered. 

Currently there are 45,000 plus Indigenous claims in the works as it is. Making every provincial, federal, and possibly municipal law subject to UNDRIP has the potential to add enormously to that already mountain of litigation.

Undoubtedly, while some would benefit from all of the litigation, that would not benefit the large majority of the reserve residents who are now locked in poverty and dependence – those being the same people that UNDRIP is supposed to aid. 

And, it is also legitimate to ask whether or not a legislated UNDRIP would further cement Canada’s former Justice Minister’s Practice Directive to all federal Justice lawyers attempting to defend claims brought by Indigenous claimants against the federal government –  and, ultimately, the taxpayer.

That Directive – which has not been recalled – commands federal lawyers to abandon the usual defences lawyers advance against claimants in favour of a new regime that employs “reconciliation”. This approach is opposed to properly defending a claim as the ultimate goal in any Indigenous claim. In the words of one senior Justice lawyer, the Directive directs federal lawyers “to litigate badly” when defending claims, placing the taxpayer at the mercy of any Indigenous claim. 

Considering there are now 45,000 Indigenous claims (against the taxpayer) the Directive is an incredibly costly intervention. The total cost will be almost incalculable if the Directive is allowed to continue in operation. Even if the Directive is withdrawn, current taxpayers grandchildren will still be paying for this mischievous interference in the administration of justice long after the current federal regime in Ottawa has long gone.  

Would UNDRIP further cement the Practice Directive in place? Probably.

And, would the full implementation of UNDRIP make it even harder to undo the entire Indian Act and reserve system, a system that based on what made sense in 1763? That is, would the backward notion that Indigenous people should be dealt with as a giant tribe instead of as individual Canadian citizens continue. The answer to that question is “definitely”.

The full implementation of UNDRIP – which would make all Canadian laws subject to it – is essentially a vanity project for the Prime Minister. Even his now discarded Justice Minister, herself an Indigenous person, pronounced a full implementation of UNDRIP  “unworkable”. 

Finally, if the full implementation of UNDRIP held out the promise of once and forever dealing positively with the chronic poverty and unemployment that keeps the majority of reserve residents so far behind mainstream Canadians, it might be worth doing – no matter what the cost. But it wouldn’t. 

There is no evidence that a piece of legislation that would virtually lock in place a way of life that disappeared long ago would result in anything more than generate endless litigation, division, costs, and the preservation of a stagnant status quo.

Those who have not taken the time to study and discuss these issues would be well advised to quickly do so. Don’t let the now-minority Liberal government sneak profoundly destabilizing legislation through Parliament.  

Citizens should demand the right to participate in these important discussions – with decisions from those discussions risking bringing permanent negative changes for this country.

Elected representatives should be questioned as to their knowledge of the matter and as to its risks. Open discussion and debate should not only be demanded but actually take place. Canadians should not let a weak minority federal government make decisions that could forever change this country for the worst behind closed doors.

A November 25, 2019 editorial in The Globe and Mail makes the very sensible suggestion that the federal government slow down on the full implementation of UNDRIP, and use the British Columbia experience with their decision to fully implement it as a guideline. 

Will B.C.’s UNDRIP result in a de facto veto on resource development in the province? Will it result in other mischievous litigation that would benefit only a privileged few? The federal government should watch developments in British Columbia, looking to determine whether full implementation at the federal level is wise or unwise. 

Will the federal government follow this sound advice? We will see.