Canada’s Acceptance of the United Nations Declaration on the Rights of Indigenous Peoples: Implications for the Inuit
Indigenous leader at the 13th Annual Canadian Aboriginal Festival. Photo: Bahman
On September 13th 2007, the United Nations General Assembly adopted a fundamentally important document that would stand as a beacon for the rights of thousands of peoples around the world: the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This document was heralded as an important step, both in that it recognizes the individual rights of Indigenous peoples, but also by accepting and concretely speaking about collective Indigenous rights.
Many Indigenous peoples around the world cheered as 144 countries adopted the document, but were simultaneously disappointed in the four countries that refused to sign: Canada, the United States, Australia, and New Zealand. The implications of signing this document were decried by many of the leaders in these four countries, including the Canadian Ambassador to the UN who said he had “significant concerns” over the wording dealing specifically with land and the control of resources.1) Canada held reservations about several aspects of the document and the pressure certain articles within the document would put on the government if Canada did agreed to sign. One of the complaints was that the article establishing the need for free, informed and prior consent of Indigenous Peoples on issues affecting them would, in effect, create an Indigenous “veto” over any issue that they did not consent to. The other major problem was land disputes and what it would mean to agree to Article 26 which lays out that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”2)
But all of this changed this year when, in May 2016, Canada officially adopted that document. However, official adoption is a far cry from incorporation into Canadian life. There are still many questions which surround the implementation of UNDRIP and how this will impact Indigenous peoples’ relations with the Canadian Government. The analysis that follows will specifically analyze the way UNDRIP will impact the lives of the Inuit in Canada.
The Inuit have had a slightly different relationship with the government than other Indigenous groups in Canada. Due to the remote, cold and inaccessible nature of their home, government intervention, is often difficult or delayed. Residential schooling, for the most part, did not come north till several years after it had been established in the south. Furthermore the historical interactions with Inuit were largely delayed, with several famous exceptions, due to the unwillingness and unencessity of government to head to the frigid north.
History
The UNDRIP evolved out of an extensive 25 year negotiation process with Indigenous peoples around the world. The Declaration very clearly states several individual and collective rights. These rights include the right to self-determination and the right not to be assimilated inter alia. What the UNDRIP does is build on previous UN documents, while also allowing for Indigenous peoples to have a tool with which to fight injustice through the international legal system—built as it is upon western legal principles which can often be incompatible with Indigenous styles of justice. Importantly, this document allows for Indigenous peoples to hold Western governments and corporations liable for actions that would negate these collective rights.
Canada, like the other nations who were not original signatories to UNDRIP, cited grave concerns over sovereignty. This was a blow to the numerous Canadians who had helped draft the paper, as well as the many Canadians standing behind the document. Within the larger argument about sovereignty, there were two important points that the Canadian government of the time could not overlook: land disputes and resource development. This was based on, similar to the other three countries, a history of colonialism and domination. With many parts of Canada finding themselves on unceded Aboriginal land, such as Vancouver, Article 26 could cause serious repercussions.
Article 19 was also considered problematic for the Canadian Government due to the fact that it says that States need to consult and cooperate with Indigenous Peoples to obtain free, prior and informed consent before creating or implementing legislative or administrative policies that would impact them.3) The interpretation of this particular article has been much debated across Canada. In the north, the overarching implications it would have on resource development and other negotiations was at the forefront of the minds of the Canadians who decided to stand against this document. This particular article meant that development and resources extraction happening in areas that could impact Indigenous peoples would need to have their free, prior and informed consent. And the question remained would this mean that Indigenous peoples have a “veto” over certain decisions? With so much potential gain in the north, officials such as Prime Minister Harper did not want to grant what they thought would amount to an Indigenous “veto”.
In the past, Canada made the argument to their Indigenous peoples, and the world, that it was already upholding the human rights of Indigenous peoples and therefore did not need to sign this document. The Minister of Indian Affairs, at the time, defended his position by saying, “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.”4) Yet this belief was called into question by numerous experts both in the field of constitutional law and Indigenous rights. They penned a letter 5) to show the Canadian government and the world that the document should not only be accepted and signed, but heralded as an important step for the world; a step which recognized the collective rights of a group of peoples who had been often cast aside.
The turning point for Canada was in during the two years between 2009 and 2010. New Zealand, Australia, and the United States were all changing their views or had already officially changed their view on UNDRIP either supporting (NZ) or endorsing it (AUS and US); Canada could not be the only country not re-evaluating their position so they finally acquiesced and also endorsed the document. To endorse a document within the UN means that the country believes in the importance of the values set down, but will not sign it, nor will it be incorporated into their own national laws. Canada’s official stance was that, “although the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws, our endorsement gives us the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.”6) Furthermore Canada continuously made it clear that their concerns remained, specifically in regards to Free, Prior and Informed Consent (FPIC) and the control of lands and resources.
Choice of Adoption
Then in 2015, this stance shifted again; in large part due to the election of Prime Minister Justin Trudeau and his Liberal government. Prime Minister Trudeau promised, during his campaign and his first months in office, to turn a page on the difficult past that the Canadian Government has had with Indigenous peoples around Canada. This past includes: residential schooling, cultural appropriation, attempted forced assimilation, and the continual rescinding of agreements and promises. At the end of 2015, just months into the New Prime Minister’s term, the promise was made that Canada would sign UNDRIP, something many Canadian Indigenous and non-Indigenous peoples had wanted to hear for 9 years.
After years of hardship and countless hours of fighting for their Indigenous rights, Canada finally signed UNDRIP on May 10th 2016. This is not the end of the battle, however. Canada has officially signed the document, but now must incorporate these tenets into the laws of the country.
The adoption of Free, Prior and Informed Consent (FPIC), was one of the major problems that Canada had with UNDRIP, and Canada’s signature has left many confused about the true implications of bringing these beliefs into Canadian law. Will there be a dramatic policy shift in Canada due to the acceptance and espousal of the values entrenched in UNDRIP? During the Minister of Indigenous and Northern Affairs’ speech at the UN she stated, “We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among partners.”7) This statement allows some to question the Canadian Government’s understanding of FPIC due to the fact that many treaties, including some modern ones, are not considered to be models of this concept.
What Does It Mean for the Inuit?
In a piece written for Northern Public Affairs, Natan Obed, the head of the Inuit Tapiriit Kanatami (ITK), an organisation representing the approximately 60,000 Inuit across the north, spoke about what FPIC means and how the government and the Inuit living in Canada can move forward after accepting the principles of UNDRIP. He emphasizes that, “FPIC replaces the unilateral approach to decision making with a more inclusive process that begins and ends with consent.”8). Mr. Obed goes on to make the argument that Nutrition North, a program created to help subsidize the high cost of food in the north is a perfect example of the negative implications that can arise when the government unilaterally decides to proceed with policy. Using this policy as an example of the negative long-term effects that government programs can have when they proceed without taking the time to consult with Inuit, it becomes clear that FPIC has not been a part of government decision making in the north. Without consulting the local communities,the federal government can end up creating wasteful and ineffective programs.
Nutrition North, which is a program costing Canadians almost $60 million a year, is seen by many as a failure. The program is supposed to help diminish the cost of nutritious food directly to the suppliers and retailers in the community. Mr. Obed, however, accuses the program of, “marginalizing Inuit, exacerbating public distrust of government, and missing an opportunity to craft an effective policy solution to a serious and ongoing challenge.”9) The program has been such a failure that Prime Minister Trudeau promised to travel across the north consulting different communities and to create, with the informed consent and knowledge of the people, a better version of Nutrition North. In fact this past July it was announced that more communities would be added to the program and other communities would be upgraded. This was in response to the discussions which were held throughout the north.
But why has it been such a failure? Mr. Oben points towards the lack of responsibility and accountability from the retailers to provide the subsidy to their customers and the control that the government has over what is considered “nutritious.” Retailers were often getting higher subsidies than the cost of transport, which the subsidy is supposed to alleviate, and the government was not holding them accountable for passing on these discounts to their buyers. The government did not consult the peoples of the north about how the program should run, or what would be the best method to approach the food crisis. With the aid of local groups such as ITK, there could have been a higher degree of accountability, ensuring that money was not being wasted.
What would programs such as this one look like if FPIC was applied to it from the start? What does the future for Canada look like if these tenets are to be accepted into domestic policies? And finally, how will government relationships with the Inuit change due to the incorporation of FPIC? These questions are not something that anyone can answer yet. This is due in large part to the fact that no one knows how Canada is going to implement the Articles of UNDRIP into its domestic laws. How this happens will dictate how Canada’s relationship with the Inuit will move forward. What has been made clear however is that, “it is necessary for Canada to implement FPIC in all of its dimensions in order to move us beyond the top-down, consultations-based approach to policymaking that has defined our relationship to governments for so long.”10) The approach of the Canadian government with their Indigenous people has had many dark chapters. The realization of FPIC in Canadian domestic law, if done properly, can overcome the colonial mindset of top-down policymaking.
Conclusion
The implementations of FPIC do not have to be as scary as some critics have implied, such as the aforementioned Indigenous ‘‘veto.” In fact, Dalee Dorough, a member of the Inuit Circumpolar Council and one of the key actors involved in the drafting of the UNDRIP, cites a great example of what a positive force FCIP can be, and how simple it is to integrate in policymaking and the negotiation process: “Ambassador Lehmann (Denmark) made a point of asking the representatives of the Inuit Circumpolar Council whether or not they approved of the Declaration in the form that it appeared during every interval . . . I believe that this is an extraordinary example of the exercise of the right of the Inuit to free, prior and informed consent . . . It represents ongoing dialogue, good faith, intellectual honesty, and genuine confidence building measures between a member state and the beneficiaries of the rights affirmed in the UN Declaration.”11) FPIC truly boils down to the question of whether or not decisions which will impact the Inuit have their approval and knowledgeable consent. This is something that many Canadians take for granted, the idea that if something were planned for their home they should be informed and consulted.
The rhetoric of Canada’s government towards the Indigenous peoples is improving. In many ways Canada has finally started moving forward in the way they see and deal with Indigenous peoples since Prime Minister Trudeau took power. Former Prime Minister Stephen Harper ignored UNDRIP for many years, never officially willing to accept it, yet Prime Minister Trudeau, within his first year, made it a priority to better the Canadian government’s relationship with Indigenous peoples. By signing an international document, he is opening himself up to international accountability. With the recent international attention Canada has received on their failure to help Indigenous peoples on many basic levels, including a lack of drinkable water and the suicide crisis in the north including Attawapiskat, this will be a chance for Canada and Prime Minister Trudeau to prove that they are moving forward and are the human rights champions they often claim to be.
References