What rights do Indigenous Peoples have, regardless of the country they live in?
That question has been debated on the international stage for decades and in the slow march Indigenous Peoples have taken to assert their rights. In Canada, Indigenous activists have fought to secure their rights and title to ancestral territories.
Now, the federal government has enshrined many of those rights in law. But it still has to figure out how to implement the new legislation. The path the federal government chooses could reshape the way Canada handles natural resource projects and raises some serious questions about the ownership and management of Crown land.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes the inherent rights and sovereignty of Indigenous nations around the world. These include many civil rights, including the right to be educated in one’s own culture and language, the right to maintain a relationship with one’s traditional territories and practices, and the right to practise one’s culture without the threat of assimilation, among others.
When UNDRIP was adopted by the UN in 2007, Indigenous rights defenders won a huge victory. But there was one sticking point for Indigenous activists within this country: Canada, alongside New Zealand, Australia and the United States, was one of the four countries that voted against the declaration.
Indigenous activists in Canada spent more than a decade pressuring the Crown to incorporate UNDRIP into its laws, governance and future legislation. The Truth and Reconciliation Commission even called on Ottawa to implement an action plan for UNDRIP in its 2015 calls to action.
Finally, that pressure paid off. Two years ago, on June 21 — National Indigenous Peoples Day — the federal government codified UNDRIP into Canadian law with an act known as UNDA, for short. On Wednesday, the federal government released the final draft of its UNDA action plan outlining how the new law will be implemented.
The document is meant to be a living, evergreen document with implications for every federal department. Each year around this time, the feds will issue a report on UNDA’s implementations. A review process will also occur every five years to update and amend the action plan.
One of the central tenets of UNDRIP is the maxim of “free, prior and informed consent,” which allows nations to give or withhold permission to develop their territories.
One of the central tenets of UNDRIP is the maxim of “free, prior and informed consent,” which allows nations to give or withhold permission to develop their territories. Still, the feds will not concede a veto power for First Nations. #UNDRIP #UNDA
However, the last article of UNDRIP notes that nothing from the declaration may be interpreted as encouraging any actions that would “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
In Canada, this principle — and how UNDA implements it — will have the most impact over natural resource projects. So far, Canada has recognized free, prior and informed consent as a concept, but in practice, UNDA could stop short of a veto power for Indigenous nations. Prior to the law's passing in 2020, Justice Minister David Lametti said the word veto does not exist in the document.
In other words, the federal government may decide that nothing in UNDA’s implementation may disrupt Canada’s sovereignty over Crown land and the resource projects on it, continuing an age-old battle over who owns Crown land. It’s a trickier conversation as well, given how most provinces are about adopting an UNDA-like law in their jurisdictions.
Matteo Cimellaro / Canada’s National Observer / Local Journalism Initiative