Indigenous Sovereigntists critique Canada’s toothless take on UNDRIP

In 2007 the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples, commonly referred to as UNDRIP, after watering down the declaration drafted in 1994 by Indigenous nations globally into a version that could be acceptable to European-style Westphalian states, including settler colonial states like Canada. For the Indigenous writers, the original declaration was to be a legal basis for Indigenous sovereignty against the colonial power of nation states. But for UN member states UNDRIP was a stop-gap, meant to fill the silence of the UN’s 1946 Universal Declaration of Human Rights about the specific rights of Indigenous peoples. The most forceful sections of the version of the declaration passed in 2007 bear the marks of its original creators, recognizing Indigenous peoples’ right to self-determination and the principle of free, prior and informed consent. 

The principle of free, prior and informed consent is the ‘teeth’ of UNDRIP. It says that settler colonial states have an obligation to honour Indigenous nations’ sovereign control over their lands and waters, and not to impose resource extraction or transportation industries on Indigenous peoples or their territories. “Free” means that Indigenous peoples must not be coerced into accepting resource extraction from their lands or waters; they must give active consent. “Prior” means that Indigenous people must be able to say no to a resource extraction or construction project before it begins, not to be merely consulted midway along the stream of development. And “informed” means that Indigenous peoples have a right to receive and be part of total production of knowledge about the impact of a resource extraction project on their lands, waters and air before giving or refusing their free and prior consent.

(Unist’ot’en Camp)

The “free, prior and informed consent” provision of UNDRIP has been cited most often by Indigenous land defenders as a legal shield against invasions, resource extraction, and land theft organized by settler colonial governments in Canada. In the decade leading up to Canada’s reinvasion of the Wet’suwet’en nation in January and February 2020, members of the Unist’ot’en Clan wielded the principle of “free, prior and informed consent” at their gate on the bridge over the Morris River in order to stop RCMP, logging trucks, and pipeline engineers from crossing into their sovereign territory without permission.

For reasons that should be obvious to anyone who is familiar with Canada’s founding and ongoing genocide against Indigenous peoples, Canada voted against UNDRIP in 2007, alongside other settler colonial powers: the USA, Australia, and New Zealand. Canada did not endorse the Declaration until 2010, when Conservative Prime Minister Stephen Harper voiced half-hearted support for UNDRIP as an “aspirational document” which has “no legal effect” on Canada’s laws and relations with Indigenous peoples. While this seems out of step with the spirit of UNDRIP, like other UN General Assembly resolutions, UNDRIP does not carry with it enforcement provisions. Hayden King, Gchi’mnissing Anishinaabe writer and editor of the Yellowhead Institute’s report on British Columbia’s implementation of UNDRIP, says the “fundamental flaw” of UNDRIP is that it “relies on the government of the day’s interpretation.” Those states that ratify the resolution are not compelled to make their laws or practices relative to Indigenous peoples consistent with UNDRIP.

Indigenous critics of CANDRIP argue that Bill C-15 does not actually put the UN Declaration into law, but instead uses it to undermine nation to nation relations between Canada and Indigenous nations, and in doing so undermines Indigenous sovereign rights by subordinating Indigenous rights to a Canadian constitutional framework.

In 2016, well into the era of reconciliation, the Liberal government declared support for the spirit of UNDRIP. By December 2020, Prime Minister Trudeau introduced Bill C-15, known as “CANDRIP,” which proposes to implement UNDRIP with Canada’s settler colonial characteristics. 

Trudeau’s CANDRIP has been met with two opposing critiques:

The Conservative Party has raised a settler panic over an imaginary Indigenous “veto power” over development and resource extraction projects, which CANDRIP does not, outside of their nightmares, allow. Minister of Crown-Indigenous Relations Carolyn Bennett has been quick to reassure industry and the settler public that there is “complete consensus” from legal and Indigenous experts that this is not the case: Bill C-15 will not grant veto power to Indigenous peoples.

The more substantive critique of Bill C-15 is in the strong opposition from Indigenous nations and leaders, who view it as an attempt to undermine Indigenous sovereignty. We are publishing a selection of these critiques from the Mohawk Council of Kahnawà:ke; the Assembly of Treaty Chiefs of Treaty 6, 7, and 8 (Alberta); the Indigenous Activists Network; and Mohawk policy analyst Russ Diabo.

These Indigenous critics of CANDRIP argue that Bill C-15 does not actually put the UN Declaration into law, but instead uses it to undermine nation to nation relations between Canada and Indigenous nations, and in doing so undermines Indigenous sovereign rights by subordinating Indigenous rights to a Canadian constitutional framework. 

Rather than forcing change in Canadian laws, Bill C-15 molds UNDRIP into the Canadian Constitution as an additive to be used or abandoned as a particular government chooses.

The “domestication” of international law appropriates UNDRIP as another step towards Prime Minister Trudeau’s piece-by-piece implementation of a new version of the 1969 White Paper. Mohawk policy analyst and Indigenous Activists Network member Russ Diabo argues the Liberal government’s Recognition and Implementation of Indigenous Rights Framework, introduced in 2018, amounts to a “White Paper 2.0,” which seeks to undermine the distinct legal status and inherent rights of Indigenous peoples and reframe Indigenous peoples as just another “cultural group” within Canada’s mythical multicultural mosaic. Trudeau’s method, Diabo says, is to recast Indigenous nations as a fourth tier of Canada’s government. 

The unenforceability of UNDRIP is not weak enough for Prime Minister Trudeau. The section of Bill C-15 that defines the purpose of the Act qualifies the adoption of UNDRIP in Canada so that rather than altering fundamental legal referents like wiping out the Doctrine of Discovery, the Bill ensures UNDRIP will have only interpretive “application in Canadian law.” Rather than forcing change in Canadian laws, Bill C-15 molds UNDRIP into the Canadian Constitution as an additive to be used or abandoned as a particular government chooses.

As the Indigenous Activists Network statement explains, the significance of CANDRIP is not that it introduces Canada’s colonial claim to Indigenous lands and waters; those claims are fundamental to Canada’s national, legal, and property claims to territorial sovereignty. The Network calls to stop CANDRIP because “the Bill will keep in place the colonial system of the Crown’s… centuries old domination through its laws, including the Constitution Act 1867 and the Constitution Act 1982, which are based on the genocidal Doctrine of Discovery.” Trudeau’s fealty to the Doctrine of Discovery defies the recommendations of Canada’s 1996 Royal Commission on Aboriginal Peoples, its 2015 Truth and Reconciliation Commission Calls to Action, as well as the United Nations Declaration on the Rights of Indigenous Peoples itself.

The Mohawk Council of Kahnawà:ke 

Statement opposing Bill C-15, April 14 2021

On April 14, the Mohawk Council of Kahnawà:ke released a statement in opposition to Bill C-15. It argues despite the rhetorical flourishes and anti-colonial claims made by the preamble, which is not legally binding, the Bill itself does not implement UNDRIP in any meaningful way. Instead, Bill C-15 blocks the implementation of UNDRIP, as well as the Truth and Reconciliation Commission’s calls to action, by “subjugating UNDRIP rights to the current legal framework” in Canada.

“In accordance  with  the  Two  Row  Wampum  treaty  relationship,  Mohawk  jurisdiction  continues  to apply independently and in parallel to the Crown”

Mohawk Council of Kahnawà:ke

The Mohawk Council of Kahnawà:ke argues Bill C-15 subordinates UNDRIP to Section 35 of the Canadian Constitution, which recognizes Aboriginal rights as subsumed by Canadian law, undermining nation-to-nation relations. Although the CANDRIP preamble denounces the Doctrine of Discovery as “legally invalid,” the Bill continues Canada’s fraudulent claim that the Crown has the “ultimate title” to the land. Bill C-15 ensures that when the rights of Indigenous peoples outlined in UNDRIP exceed what is recognized by Section 35 of the Canadian Constitution, Section 35 will prevail.

Bill C-15 says that Canada must act “in consultation and collaboration” with Indigenous peoples, but the Mohawk Council of Kahnawà:ke calls for the establishment of a legislative basis for nation to nation relationships recognizing Indigenous peoples’ independent and parallel sovereignty. Bill C-15 would subordinate Kahnawà:ke sovereignty to Section 35 of the Constitution and therefore subordinate Kahnawà:ke sovereignty to Canadian law.  

Against Bill C-15, the Mohawk Council of Kahnawà:ke calls for legislation implementing UNDRIP to “recognize the possibility of concluding Nation to Nation agreements.” The example they give is a description of their original Two Row Wampum treaty relationship with the Crown:

“Wampum belts were among the first documented agreements between First Nations and European settlers. The Two Row Wampum belt consists of two rows of purple beads separated by three rows of white. The white symbolizes the river of life or the land that we all now share. The two purple rows symbolize the Haudenosaunee and the Europeans traveling side by side, never interfering with each other’s journey.”

The Mohawk Council of Kahnawà:ke is clear: “In accordance  with  the  Two  Row  Wampum  treaty  relationship,  Mohawk  jurisdiction  continues  to apply independently and in parallel to the Crown” (emphasis added). 

The Assembly of Treaty Chiefs of Treaty 6, 7, and 8 (Alberta)

Press release and resolution rejecting Bill C-15, April 1 2021

On March 17, the Assembly of Treaty Chiefs of Treaty 6, 7, and 8 (Alberta) passed a resolution opposing Bill C-15 and calling for it to be withdrawn. 

They make two criticisms of the process of drafting Bill C-15: first, that the Assembly of First Nations (AFN) should not have been involved in drafting the bill since the AFN is neither a rights-holder, a treaty-making body, nor a nation; and second, that Canada failed to engage Indigenous nations in discussion on the Bill.

The Assembly of Treaty Chiefs also identifies problems with the content of Bill C-15. They argue it is “contrary to its stated aims,” because it subverts the original intent of UNDRIP by “removing sovereign rights” of Indigenous peoples and interpreting UNDRIP through the “colonial Canadian constitutional framework.” 

Rather than correcting Canada’s refusal to recognize the terms of what the Assembly of Treaty Chiefs refer to as the “peace and friendship treaties,” CANDRIP could instead advance Canada’s agenda of terminating Indigenous land title. The Assembly of Treaty Chiefs of Treaty 6, 7, and 8 warn that Bill C-15 redefines Indigenous people to a “pan-Aboriginal” definition in reference to the Constitution Act of 1982, rather than the UN definition of “those who were present at the time of contact.” Bill C-15, they argue, would be used as “evidence of Canada’s ownership of our territories and resources.”

Indigenous Activists Network: Defenders of the Land, Truth Campaign, and Idle No More

Press release and analysis of Bill C-15, December 11 2020

The Indigenous Activists Network provides an in-depth analysis of Bill C-15, including point-by-point criticism of the content of the Bill itself; see especially pages 17-25 of their analysis, linked above.

Like the Mohawk Council of Kahnawà:ke and Assembly of Treaty Chiefs, the Indigenous Activists Network argues that if Bill C-15 becomes law, UNDRIP “will be interpreted and implemented through the colonial Canadian constitutional framework,” which includes the colonial Doctrine of Discovery. 

The problem of UNDRIP’s unenforceability looms here. The Network explains: 

“A court could not “order” the government of Canada to adopt legislation that conforms to UNDRIP… nor could it invalidate a federal law for being inconsistent with UNDRIP based on this section. Again, the “aspirational” nature of UNDRIP is reinforced by this legislation, with at most, limited procedural remedies available to Indigenous Peoples and Nations.”

Citing Nicole Schabus, professor of law at Thompson Rivers University, they argue against the “domestication” of international law like UNDRIP. Schabus argues, “international law is approved and developed at the international level, and these standards cannot be lowered at the national level.”

The Indigenous Activists Network says “Bill C-15 denies Indigenous peoples the right to self determination that UNDRIP recognizes.” CANDRIP reframes Indigenous self determination as a jurisdictional level of Canada’s state governance. According to the federal “inherent right” policy, Canada’s Orwellian legal interpretation of Indigenous self determination “does not include a right of sovereignty in the international law sense… implementation of self-government should enhance the participation of Aboriginal peoples in the Canadian federation [as fourth level ‘Indigenous governments’].” The Network explains, “Canada’s position is that Indigenous Peoples must exercise our right to self-determination as Canadians and as part of Canadian society” (emphasis added). 

By reframing UNDRIP under Canada’s constitution, and therefore through the perspective of the colonial Doctrine of Discovery, Bill C-15 files down UNDRIP’s teeth, the principle of “free, prior and informed consent,” down to its gums. The Network quotes then-Indigenous Affairs Minister Carolyn Bennett in 2016, speaking to the UN Permanent Forum on Indigenous Issues: 

“We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution…Canada believes that our constitutional obligations serve to fulfill all the principles of the Declaration, including “free, prior and informed consent.”…We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among partners.”

The Indigenous Activists Network concludes with a grassroots call to action. Spokesperson for the Truth Before Reconciliation Campaign and member of the Indigenous Activists Network Russ Diabo says, “Indigenous people should not be dazzled by the flowery language in the Bill’s preamble but must look at the actual content of the Bill to see the danger it poses.” 

The Network analysis concludes: “Based on our analysis we are strongly recommending Indigenous Peoples and Nations reject Bill C-15 and take action to stop Parliament from Passing it! Because it’s obvious AFN and many of our Leaders won’t!”

Additional references

Yellowhead Institute (December 2020), “The UN Declaration on the Rights of Inidigenous Peoples in Canada: Lessons from B.C.” (See timeline on page 4).

Russ Diabo (June-December, 2020), “Indigenous Peoples Should Reject Canada’s UNDRIP Bill C-15: It’s not all That Meets the Eye,” Indigenous Policy Journal.

Russ Diabo (Dec 21, 2021), “Federal UNDRIP Bill C-15 is an attack on Indigenous sovereignty and self-determination: Opinion,” APTN.

Russ Diabo (October 5, 2020), “Canada’s use of UNDRIP as cover for implementing White Paper 2.0 termination plan,” The Media Coop.

Association of Iroquois and Allied Indians (April 1, 2021), ”AIAI Opposes a Canadian Undrip that Acts Without Consent and Consultation.”

Brian Champ (January 22, 2021), “Bill C-15: UNDRIP as cover for ongoing colonialism,” The International Socialists.

An Indigenous sovereigntist strategic defense of CANDRIP: Pamela Palmater (April 16, 2021) “Ellen Gabriel on UNDRIP & Bill C-15,” Warrior Life (podcast).

You might also like
404 Not Found

404 Not Found