Following 25 years of negotiations, in a landmark vote of the United Nations General Assembly on 13 September 2007, 143 countries voted to adopt the United Nations Declaration on the Rights of Indigenous Peoples.
For many of the world’s Indigenous peoples, the Declaration represents a major turning point in the recognition and protection of their rights. It is also considered by many to be a significant achievement “in addressing the serious and persistent human rights violations against Indigenous peoples worldwide”.[i]
In its Calls to Action, Canada’s Truth and Reconciliation Commission (TRC) described the Declaration as an instrument of reconciliation and a framework for Canadians to come together to redress the terrible harms inflicted on Indigenous peoples throughout Canada’s history. The current federal government has committed to implementing all 94 recommendations that comprise the TRC’s Calls to Action, starting with implementation of the Declaration.
The Declaration establishes a universal framework of “minimum standards for the survival, dignity and well-being of the indigenous peoples of the world” (Article 43). While it is non- binding, countries that have adopted the Declaration commit, with the full participation of Indigenous peoples, to take appropriate measures, including legislative measures, to achieve its ends (Article 38).
The 24 preambular paragraphs and 46 operative articles affirm a wide range of collective political, economic, social, cultural and environmental rights for Indigenous peoples. These include, for example, Indigenous rights to:
- self-determination, as well as self-government over local or internal matters;
- maintain and strengthen distinct political, legal and cultural institutions, as well as their traditions, customs and languages;
- free, prior and informed consent before the approval of any project affecting their lands, territories and other resources;
- the lands, territories and resources which they have traditionally owned or occupied, including the right to redress and fair compensation for any lands or resources taken, used or damaged without free, prior and informed consent;
- maintain and control their intellectual property;
- determine their own identity or membership in accordance with their own customs and traditions;
- recognition and enforcement of treaties; and
- freedom from discrimination, including in the exercise of these rights.
Importantly, the Declaration recognizes that “indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples”.
Canada’s endorsement of the Declaration
Initially, Canada was one of four countries, including the United States, New Zealand and Australia, to vote against the Declaration. Canada cited concerns that the Declaration was incompatible with the nation’s constitutional framework and the need to balance Indigenous rights to lands and resources with the rights of others.
In response to the sustained requests of many Indigenous organizations, the Government of Canada formally endorsed the Declaration on 12 November 2010. Nonetheless, in its Statement of Support, Canada expressed on-going concerns with a number of the Declaration’s provisions, including free, prior and informed consent if understood as providing a veto to Indigenous groups over development on claimed lands, and self-government without recognition of the importance of negotiations.
However, Canada noted that it was confident that it could interpret the principles in a manner consistent with Canadian laws.
At the time, Canada described the Declaration as an “aspirational document”, a view that continues to be held by the United States, Australia and New Zealand. Each of these countries has since endorsed the Declaration, noting that it is not binding and that it must be achieved within each of the country’s legal and constitutional frameworks.
On 10 May 2016, in a speech delivered to the UN General Assembly, Canada’s Minister of Indigenous and Northern Affairs indicated that Canada is “now a full supporter of the Declaration without qualification”. She added that it intends “nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution”.
Following the Minister’s announcement, her Department clarified that “Declarations only represent political commitment from the states that vote in favour of adopting them”; unlike treaties and conventions, they are not legally binding.
Implementing the Declaration
The Declaration was negotiated outside of domestic processes. As such, how and the extent to which its provisions are to be given effect by individual countries has been described as a “test of commitment … to protect, respect and fulfill indigenous peoples’ collective and individual rights.”[ii]
In Canada, the TRC called upon the federal government to develop a national action plan to fully implement the Declaration as the framework for reconciliation.
Similarly, a joint statement by Canadian Indigenous organizations to the UN General Assembly delivered by the National Chief of the Assembly of First Nations recommended that Canada develop a legislative framework to implement the Declaration. This would ensure that its laws and policies are consistent with the principles set out in the Declaration—in particular those laws related to lands and resources to ensure that free, prior and informed consent is respected.
On 1 April 2016, Bill C-262, The United Nations Declaration on the Rights of Indigenous Act, was introduced in the House of Commons as a private member’s bill by Romeo Saganash, Member of Parliament for Abitibi-Baie-James – Nunavik-Eeyou.
Among other things, the bill would require the federal government to “take all necessary measures” to ensure that its laws are consistent with the Declaration. The proposed legislation has received support from the Assembly of First Nations and the former Chair of the Truth and Reconciliation Commission, Senator Murray Sinclair.
Others, however, caution that given the scope of the Declaration’s provisions, implementation could be potentially challenging and may have substantial economic implications. Questions have also been raised regarding the legal character of the Declaration, as well as the tension between individual and collective rights.
International scholars and legal experts also suggest that adopting the Declaration within the context of national laws may not be sufficient to give full effect to the Declaration’s provisions.[iii]
How the Government of Canada will move to give practical expression to its unqualified commitment to fully implement the Declaration, and what it means to do so in accordance with the Canadian Constitution, will be keenly monitored by Indigenous and non-Indigenous peoples alike.
Brenda Gunn, Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada, Windsor Yearbook of Access to Justice, 2013.
Sarah Nykolaishen, Customary International Law and the Declaration on the Rights of Indigenous Peoples, Appeal Volume 17, pp. 111-128, 2010.
Inter-Parliamentary Union: Implementing the UN Declaration on the Rights of Indigenous Peoples: Handbook for Parliamentarians N° 23, 2014.
Indigenous Bar Association: Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook.
Author: Tonina Simeone, Library of Parliament
[i] Paul Joffe, UN Declaration on the Rights of Indigenous Peoples: Canadian Government Positions Incompatible with Genuine Reconciliation, National Journal of Constitutional Law [26 N.J.C.L.], 2010.
[ii] Victoria Tauli-Corpuz, “Statement of Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous issues on the occasion of the adoption of the UN Declaration on the Rights of Indigenous Peoples” (Delivered to the United Nations General Assembly, New York, 13 September 2007).
[iii] United Nations Economic and Social Council, Study on how States exploit weak procedural rules in international organizations to devalue the United Nations Declaration on the Rights of Indigenous Peoples and other international human rights law, 19 February 2016.