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Canada Adopts UN Declaration on Indigenous Peoples, but Some Are Skeptical Anything Will Change

Cheers erupted as Canada announced it will fully support the United Nations Declaration on the Rights of Indigenous Peoples, reversing the position of the previous government, which nine years ago made it one of four countries to reject the document.

by Tamara Khandaker
May 10 2016, 10:45pm

Indigenous Affairs Minister Carolyn Bennett (Photo by Adrian Wyld/The Canadian Press)

Cheers erupted in the room on Tuesday as Canada announced it will fully support the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), reversing the position of the previous government, which nine years ago made this country one of just four to reject the document.

But certain phrases used in the announcement — which comes as various Indigenous communities voice opposition to pipeline or development projects running through their territories — have put critics on edge.

Signed in 2007 by 144 countries — excluding Canada, the US, Australia and New Zealand — UNDRIP recognizes Indigenous peoples' rights, including language, identity, culture, health, education, as well as the right to free, prior and informed consent to development on Indigenous lands. It's a non-binding declaration that cannot be enforced.

Canada initially voted against it, despite being involved in its creation, citing concerns that the informed consent provisions amounted to giving Indigenous people veto power.

"By signing on, you default to this document by saying that the only rights in play here are the rights of First Nations. And, of course, in Canada, that's inconsistent with our Constitution," Chuck Strahl, then minister of Indian Affairs, had said at the time.

'Let's be honest — implementing UNDRIP should not be scary.'

It 2010, it endorsed the declaration, only to call it an "aspirational document." Since then, Indigenous groups have been calling for it to be adopted.

"Let's be honest — implementing UNDRIP should not be scary," Indigenous Affairs Minister Carolyn Bennett said on Tuesday, speaking at the 15th session of the Permanent Forum on Indigenous Issues at the UN.

"Recognition of elements of the declaration began 250 years ago with the Royal Proclamation, which was about sharing the land fairly. UNDRIP reflects the spirit and intent of our treaties."

Some First Nations leaders lauded the Trudeau government's decision.

"Canada is sending an important message to Indigenous peoples, to all Canadians and the international community that Indigenous rights are human rights," said Assembly of First Nations National Chief Perry Bellegarde in a statement. "(UNDRIP) is a framework and essential tool to guide the work of reconciliation that will move us all forward.

But some experts and Indigenous groups say embracing the declaration doesn't mean much in a practical sense unless the concept of free, prior, and informed consent on development of Indigenous lands is implemented in its purest form — and they're not sure Bennett's words have indicated that this will happen.

Bennett said on Tuesday that the government intends to do "nothing less than adopt and implement the declaration in accordance with the Canadian constitution," citing Section 35 of the document as a "robust framework on Indigenous rights."

Related: Canada Extends Olive Branch to First Nations Amid Escalating Pipeline Tensions

Sheryl Lightfoot, Canada Research Chair in Global Indigenous Rights and Politics at the University of British Columbia, welcomed a shift in language in statements from Canadian officials at the forum — it's "extremely consistent" with the declaration, she said — but there are still no laws to accompany it.

"I'm waiting to hear, what are you actually going to do? How long can they keep asking for more time without actually changing anything? How long are people supposed to wait with no real change?" Lightfoot continued.

A statement from Inuit Tapiriit Kanatami said the announcement "disappointingly suggests little change from the previous government's stance on the right of Inuit and other Indigenous peoples to self-determination."

They called Bennett's suggestion that the declaration should be interpreted to fit within Canada's constitutional framework a fundamental departure "from the spirit and intent of the Declaration itself," adding that ideally, the opposite would happen.

"Section 35 is the legal floor upon which to build in more robust, consent-based processes between Indigenous peoples and the Government of Canada that are based on our right to free, prior and informed consent, which is a much stronger standard than 'consultation,'" the statement said.

Critics have also taken aim at Bennett's statement that modern treaties, which often deal with ownership and use of land, and self-government agreements are the "ultimate expression of free, prior, and informed consent among partners."

Larry Innes, an Indigenous rights lawyer, told VICE News he was enthusiastic about the change in attitude that the announcement indicates.

'How long can they keep asking for more time without actually changing anything?'

However, he said, Bennett is right only in a "naive, optimistic sense" — if modern treaties and self-government agreements were negotiated on a level playing field.

"The reality is that they're not. Canada has used a variety of coercive tactics in the past to conclude those agreements, and while agreements have been reached, it hasn't been without huge compromises, primarily on the Indigenous side," he said.

For example, the James Bay and Northern Quebec Agreement of 1975 — the first agreement between the Crown and Indigenous peoples since the original numbered treaties — was negotiated while construction of James Bay Hydroelectric Development Project was already underway.

"So talk about being between a rock and a hard place," said Innes, adding that if this is the high point of Indigenous rights in Canada, we have a "heck of a long way to go."

"That's almost the definition of a coercive negotiation," he said.

Hayden King, director of the Centre for Indigenous Governance at Ryerson University, said while it was wonderful to hear the government would adopt the declaration without any qualifiers, he was skeptical after hearing the minister tout modern treaties.

"Modern treaties are premised on the concept of extinguishment of title, so when Canada negotiates a modern treaty, it insists that Indigenous peoples have to extinguish their title to 90 percent of their territory, their land. And on that 90 percent, they merely have consultative rights," he said.

"If Minister Bennett thinks modern treaties are the ultimate expression of free, prior, and informed consent, that indicates a very weak form of consent. Essentially, to negotiate a modern treaty, Indigenous people have to surrender their right to making decisions on their land," King said.

Follow Tamara Khandaker on Twitter: @anima_tk