SO YOU WANT TO IMPLEMENT UNDRIP.

Date01 September 2021
AuthorWelkins, Kerry
  1. INTRODUCTION

    According to one school of thought, (1) the United Nations Declaration on the Rights of Indigenous Peoples (1) is at best a consolation prize for the world's Indigenous peoples, relegating them--unlike, lor example, the beneficiaries of the 1960 United Nations (UN) Declaration on the Granting of Independence to Colonial Countries and Peoples (1,)--to a normative regime premised explicitly on preserving and protecting "the territorial integrity [and] political unity of sovereign and independent States": (4) in other words, to the ongoing ministrations of the very colonial powers that govern them already.''

    This view highlights an important truth. Meaningful implementation of the Declaration in Canada--implementation that renders UNDRIP rights effectively enforceable--will indeed require the active cooperation of constitutionally competent mainstream legislatures and governments. Nothing in UNDRIP purports to give Indigenous peoples access to international forums for redress where states have breached UNDRIP rights. (6) (Such access might well have been pointless; UNDRIP, like most other UN declarations, is understood to be "soft law": potentially persuasive, but not legally binding on any of its signatory states.) (7) Instead, the Declaration assigns to signatory states the task of providing for its enforcement. (8) And in Canada--unlike, for example, the United States, where international treaties become "the supreme Law of the Land" (9) when made by the President and ratified by the Senate (10)--international instruments, even when legally binding at international law, have no domestic legal effect as such, (11) except when implemented by valid domestic legislation (12) or, presumably, (13) by means of valid treaties with Indigenous communities. (14) Courts do, where possible, construe domestic legislation in a manner consistent with the provisions in international instruments, (15) but, according to very recent Supreme Court of Canada jurisprudence, non-binding international instruments (such as UNDRIP) have much less interpretive weight than those with binding effect, especially in construing legislation that precedes them. (16) Lower court decisions to date differ on whether to consider UNDRIP when interpreting the constitution, (17) and the Federal Court has declined to consider UNDRIP in determining when and to whom the Crown owes a duty to consult. (18) The Declaration's usefulness to Indigenous peoples living in Canada is, beyond doubt, substantially at the mercy of domestic political will.

    The good news, though, and it is good news, is that UNDRIP today is having a moment in Canadian public policy. For at least some of Canada's elected governments, UNDRIP implementation is a signature policy priority. In 2019, British Columbia (BC) enacted legislation (19) whose stated aims include "affirm [ing] the application of the Declaration to the laws of British Columbia" and "contribut[ing] to the implementation of the Declaration." (20) The Act includes a(n unenforceable) (21) requirement that the government of that province, "in consultation with the Indigenous peoples of British Columbia, take all measures necessary to ensure that the laws of British Columbia are consistent with the Declaration." (22) At least five current federal statutes proclaim in their preambles the federal government's "commit[ment] to implementing the United Nations Declaration on the Rights of Indigenous Peoples." (23) And the federal Throne Speeches in December, 2019 (24) and September, 2020 (25) each included commitments to develop and introduce UNDRIP implementation legislation no later than the end of 2020.

    There is reason to take such advantage as we can of this UNDRIP moment. Meaningful incorporation of UNDRIP into Canadian law would improve materially the circumstances, and enhance the autonomy, of Indigenous peoples dwelling here. Here are two easy examples. Other international instruments have recognized peoples' rights of self-determination, (26) but international enforcement of such rights has proved elusive. (27) UNDRIP is said (28) to be the first such instrument to have acknowledged expressly that Indigenous peoples--sub-State collectives -have rights of self-determination. (29) Giving such rights enforceable legal effect in Canada would be a historic achievement. (30) Likewise, the several mentions in UNDRIP of "free, prior and informed consent" (31) would, if given domestic effect, almost certainly impose more stringent obligations on mainstream governments than does the current domestic law requiring Crown consultation. (32)

    The UNDRIP legislation the federal government introduced--the United Nations Declaration on the Rights of Indigenous Peoples Act (33)--took effect on 21 June 2021. Like the BC Act (34) and an earlier private member's bill (35)--which had passed the House of Commons but stalled in the Senate just before the last federal election (36)--the federal UNDRIP Act does not give enforceable legal effect to the rights and obligations in UNDRIP. (37)

    One of its purposes is to "provide a framework for the Government of Canada's implementation of the Declaration." (38) If the Actwere sufficient to give UNDRIP domestic legal effect, no such implementation framework would be necessary. By way of elaboration, the Act requires that the federal government, (39) "in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration,"' (40) and that a designated minister, (41) "in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration."'* (2) The action plan must be in place no later than two years after the date the Act came into effect. (43)

    In all honesty, the federal UNDRIP Act is neither necessary nor sufficient to accomplish these objectives: not necessary, because the federal government could have set about harmonizing its laws with UNDRIP and developing an action plan for UNDRIP implementation even in the absence of enabling legislation; not sufficient, because nothing in the Act provides for enforcement of these requirements or attaches legal consequences to non-compliance. The new Act does, however, create a context and prescribe a period of time for focused collaborative reflection on how to make UNDRIP work as law in Canada.

    It seems prudent and timely, therefore, to consider with some care what it would mean, and what it would take, to implement UNDRIP meaningfully in contemporary Canada: to render UNDRIP's rights and obligations effective and enforceable. This article is one such attempt. It has two principal parts. Part II identifies some of the issues that will require clarification, ideally in advance, for there to be a shared understanding of what UNDRIP means on the ground in Canada. Who is entitled to exercise and enforce the rights that UNDRIP sets out? Which lands and cultural practices do those rights protect ? And what ongoing protection, if any, may Indigenous peoples exercising rights in the Declaration expect from the Crown if something goes wrong for them in the course of that exercise ? Part III considers the mechanics of UNDRIP implementation: the relative merits of treaties and legislation as possible implementation vehicles; the relative importance of comprehensiveness, timeliness, uniformity and customization; and the challenge of giving the Declaration lastingdomestic legal effect, despite the risk that subsequent elected governments will have quite different constituencies and priorities.

    Implicit in almost all that follows is the special challenge of implementing UNDRIP within a legal order that is not well designed to welcome it. Complicating the task is the fact that the cumulative impact on Indigenous peoples of the Canadian and, before that, the Imperial legal regime has been to fragment and disaggregate their ancestral communities, destabilize their relationships in and with their traditional territories, and suppress and marginalize such elements of their cultures as had proved, or seemed, distasteful or inconvenient. How, exactly, does one unscramble an egg or put Humpty Dumpty back together ? It would be unwise, and could be tragic, to underestimate the magnitude of this undertaking: the care it will take to get there from here. Yet these same considerations, taken together, also make the task of implementation morally imperative. Postponing the project further will not make it any easier.

  2. PREPARING FOR IMPLEMENTATION

    Anyone reading UNDRIP with a view to enforcing it here must face and seek to answer some questions of surpassing difficulty, conceptually and operationally. It is, I think, not difficult to imagine UNDRIP operating somewhat successfully in Canada once we have satisfactory answers to many of these questions, but much--quite possibly everything--depends on the background assumptions that inform the very beginning of that enterprise: the shared default understandings from which implementation would proceed.

    In considering each of these questions--and to be clear, I propose to consider here only a partial list (44)--we need to wonder not only what its right, or best, answer is, but who will, or should, get to decide on the answer when the time comes for decision.

    In the absence of sufficient forethought at the outset of implementation--sufficient specificity in the implementing instrument about substance, process, or both--the answer to the second question is going to be, as usual, "the ordinary courts," comprising almost certainly, for at least the discernible future, predominantly non-Indigenous judges approaching these issues, faute de mieux, from first principles anchored in a non-Indigenous mindset in mainstream law. This need not mean, of course, that non-Indigenous litigants would always succeed in limiting or blocking...

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