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Canada fully endorses UNDRIP, but questions remain

Indigenous Affairs minister Carolyn Bennett makes the announcement at the United Nations today.

Canada has now fully endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), but questions remain about how fully it will be implemented and its implications for controversial tar sands pipelines including the proposed Energy East and Trans Mountain pipelines.

Radio Canada International reports, “Indigenous Affairs Minister Carolyn Bennett said on Monday that Canada will become a full supporter of the document and made the announcement formally today. She and Justice Minister Jody Wilson-Raybould are attending the opening session of the Permanent Forum on Indigenous Issues [at the United Nations in New York].”

The Globe and Mail adds, “Canada, under the previous Conservative government, voted against the declaration when it was first passed by the United Nations in 2007.”

On September 25, 2007, the Council of Canadians issued a media release which stated, “The Council of Canadians denounces the Harper government for voting against the United Nations Declaration on the Rights of Indigenous Peoples on September 13, 2007 along with the U.S., Australia and New Zealand. 143 countries voted in favour of the Declaration. …The Council of Canadians is demanding that the Canadian government show leadership on indigenous rights by supporting the Declaration and taking necessary measures to ensure justice for Aboriginal communities in Canada.”

In November 2010, the Harper government finally endorsed the declaration, but with qualifications.

The Globe and Mail notes, “Those qualifications were officially registered by the previous Conservative government over concerns that the document’s requirement for the ‘free, prior and informed consent’ of indigenous people on issues that affect them could be interpreted as a veto over development and other decisions made in the broader public interest. …The Conservatives called [the declaration] ‘aspirational’ and said it was a ‘non-legally binding document that does not reflect customary international law nor change Canadian laws.'”

The Council of Canadians also criticized the government in 2010 for not fully endorsing UNDRIP.

But even with today’s endorsement of UNDRIP, RCI cautions, “While announcing the intention to support the UN declaration such declarations are not legally binding documents.” Because of that, Romeo Saganash, the NDP critic for Indigenous affairs, is proposing a private member’s bill that would confirm UNDRIP has a legal application in Canadian law.

And APTN highlights, “Speculation has recently swirled the Trudeau government could introduce an UNDRIP-related bill as early as this coming autumn.” There is some concern about that because, “In a recent appearance before the Commons committee, Natural Resources Minister Jim Carr said the Trudeau government was planning to implement a ‘Canadian definition’ of UNDRIP.”

Last December, former Assembly of First Nations Chief Phil Fontaine’s consulting firm Ishkonigan Inc. submitted a report to Carr that stated, “Until meaningfully addressed, the need for the free, prior, informed consent of Indigenous rights-holders will continue to be the most contentious element of resource development in Canada. …Canada needs to make a timely demonstration of its commitment to addressing the UNDRIP. And stating its confidence that in so doing, greater prosperity and equity for all, especially in the area of resource development can be achieved.”

It should be noted that Fontaine has also been hired by TransCanada to win First Nation support for the Energy East pipeline.

His firm’s report recommends “consent-based approaches”, which suggests a different understanding of the principle that a First Nation has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy or otherwise use. Indigenous rights advocate Eriel Deranger recently commented that UNDRIP is built on the premise of “Indigenous rights to not just participate in decision making processes, but the right to say ‘no’.”

When asked in February if a First Nation “no means no” on pipeline development would be respected, the prime minister replied his government looks to “First Nations and Indigenous peoples as partners in all that happens in this land.”

As we have noted in campaign blogs, the Wolastoq Nation, Treaty 3, the Assembly of Manitoba Chiefs, the Kanehsatà:ke Mohawks, the Assembly of First Nations Quebec and Labrador, the Iroquois Caucus, and the Chiefs of Ontario have either expressed their outright rejection of the Energy East pipeline or noted the failures to be adequately consulted on the project. It remains to be seen how the Trudeau government’s endorsement of UNDRIP – as well as the possibility of a “Canadian definition” of UNDRIP – will impact the approval or rejection of this pipeline.