Bill C-15: symbolism that matters

Indigenous rights bill must not die on the order paper

David Lametti, the federal justice minister (centre), with Perry Bellegarde, the national chief of the Assembly of First Nations (left) and Natan Obed, the president of Inuit Tapiriit Kanatami, at an event in Ottawa held Dec. 3 to introduce a proposed new law that would begin to implement the United Nations Declaration on the Rights of Indigenous Peoples in Canada. (File photo)

By Jim Bell

For the people of Nunavut, the Liberal government’s proposed new law for carrying out the United Nations Declaration on the Rights of Indigenous Peoples is more symbolism than substance.

But Bill C-15, which Prime Minister Justin Trudeau’s government laid before the House of Commons yesterday, might turn out to be the kind of symbolism that builds and heals.

In 2016, Canada gave its full support to the UN declaration, which you’ll often see represented by the ugly acronym “UNDRIP.”

But the federal government didn’t say how it would use the declaration to change Canadian law.

Romeo Saganash, then the NDP MP for the northern Quebec riding that includes Nunavik, filled that gap. He sponsored a simple private member’s bill in 2017 that passed the House of Commons and then died in the Senate before the 2019 federal election.

That’s because some Conservative senators were scared of one of the UN declaration’s big ideas: free, prior and informed consent.

That concept is often represented by another ugly acronym: “FPIC.” It means certain things can’t happen unless governments first talk to the representative institutions of Indigenous peoples and try to seek their free, prior and informed consent.

Those Conservative senators feared that putting this into Canadian law would give Indigenous people a veto over big resource projects.

But they were wrong. Bill C-15 doesn’t contain the word “veto” and neither does the UN declaration. What it does require is deep consultation and collaboration.

Besides, in Nunavut that issue likely doesn’t matter. Inuit representative institutions already enjoy — effectively — the right to free, prior and informed consent. It’s enshrined in constitutionally protected land-claim agreements, and in Inuit impact and benefit agreements with developers.

Natan Obed, the president of Inuit Tapiriit Kanatami, explained this to reporters yesterday in Ottawa.

“Canada is already doing it in many ways. So we should look to these places where free, prior and informed consent is actually happening and is being implemented,” Obed said, in a reference to Inuit Nunangat.

If there’s anything to fear, it’s the timing, because it’s highly likely a federal election might occur this spring. So it’s not impossible that, like Romeo Saganash’s bill, this bill could also be killed by the calling of an election.

Also, the Liberal government never actually promised to pass a UN Indigenous rights bill. It promised only to introduce it by the end of this year.

That likely explains why the leaders of the three national Indigenous organizations, including the president of ITK, this week called on all political parties to give speedy passage to Bill C-15.

We mentioned earlier that for the Nunavut territory, Canada’s implementation of the UN declaration is mostly symbolic. Because of the Nunavut Agreement and the duty-to-consult principle contained in multiple Supreme Court rulings, most of Bill C-15 may actually be redundant.

But symbols are important. Symbols can signify big transformations and the start of important new relationships. MPs and senators must pass this bill before Parliament dissolves.

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(19) Comments:

  1. Posted by Frobisher Keep on

    Mr. Trudeau and his ilk are great at virtue signalling, not so great at action. UN declarations don’t bring clean water to reservations, for example. Just more fluffy acting.

  2. Posted by Stop This Now on

    This bill must absolutely die. It is much more than mere symbolism, and would have a very deleterious effect on Canada.

    The duty to consult is fine, the duty for consent? Absolutely not- that would put the development of this country in the hands tiny groups who do not speak for the majority of our citizens.

    Write your MP expressing your opposition to this ill-considered and sovereignty destroying piece of foreign legislation.

    • Posted by Stop This Misinformation Now on

      There is no “duty for consent” within it. It also doesn’t “destroy sovereignty”.
      .
      In fact, part of article 46 of UNDRIP states: “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”.
      .
      UNDRIP explicitly says anything which impairs or contradicts territorial and political integrity of the sovereign and independent states who chose to sign onto it, is invalid.
      .
      Stop acting like this is an insidious, foreign-backed imposition that will destroy Canada, when the bill itself says the exact opposite and the representatives of Canada have chosen to willingly sign onto it.
      .
      It is important to political discourse to be honest with each other and well-informed of what is being discussed. You may disagree, but all your over-the-top talk of death and destruction is clearly wrong, and not conducive to open discussion of what it actually contains and what it could actually mean for Canadians.

      • Posted by UNDRIP Is Bad For Canada on

        The increase in criminality (railway blockades, etc) can be traced directly to BC’s inclusion of the UNDRIP in provincial law. Some among indigenous communities interpret UNDRIP as giving them veto over development projects. This is a dangerous misunderstanding of this “symbol”.

        FPIC and its provisions were not consistent with our constitution 10 years ago, and they are not now. Nothing has changed except the political environment and the current government’s need for support.

        UNDRIP is bad for Canada.

        • Posted by Lynn Palmer on

          You are clearly an ultra right-wing conservative who has no genuine understanding of this matter that you have chosen to speak about

          • Posted by Ad Hominum on

            How about you actually engage with the argument instead of engaging in logical fallacies? Its interesting that you and Jim Bell are throwing the word “conservative” around like it is a bad word. Let’s actually remember that -LIBERAL- -aboriginal- former Justice Minister Jody Wilson-Raybould (so liberal that Trudeau burned her, if you remember) was AGAINST UNDRIP for exactly the reasons mentioned by the poster: FPIC is a bad idea, and we already have these protections in our Constitution.
            .
            People are so naive saying FPIC doesn’t mean “-C-onsent” like you think it does! Oh wait, it is now being thrown around exactly that way whether it is Mikmaq on the East Coast or Wetʼsuwetʼen on the West when UNDRIP isn’t even ratified. I guess the duty to Consult under the Constitution isn’t enough. CONSENT = VETO. If it isn’t mean to say that, then change it to say the opposite. They won’t because it is not meant by proponents as a legal tool and veto only, but a political tool for rhetoric and social media bombardment.
            .
            Bad idea for Canada. It is like putting lipstick on a pig.

  3. Posted by I Disagree Strongly with What You Say, But Absolutely Support Your Right to Say It on

    It is not your place to decide what is “clearly wrong”. That is a subjective assessment, and carries no more nor less weight that mine. I will decide what I find wrong, thank you very much. Nor is it your place to decide what is conducive to open discussion by trying to dismiss opinions such as mine.

    I don’t need, nor I do I seek, your agreement or approval. All that I need from you is the acknowledgement of my viewpoint, nothing more. I offer you the same, no matter how much I disagree with you.

    I would appreciate you stopping the spread of disinformation. Canadian representatives have not ratified this aspirational document, and I am confident that good sense will prevail in our Parliament and that our representatives have the good common sense to kick this document to the curb.

    I live in hope.

  4. Posted by Soothsayer on

    I’ve read UNDRIP several times over the years and would encourage anyone interested in this issue to seriously engage with it themselves. I have reservations and questions surrounding it too. Granted, there’s a lot to unpack and a fair discussion is likely beyond the constraints of a forum like this.
    .
    On the one hand, I agree with Natan that many of the features of the declaration are already enshrined in practice and in law in Canada. For example, the duty to meaningfully consult indigenous groups on development projects that affect them. This is not (nor should it be, in my opinion) an effective veto. Still, it is a fair practice and should be engaged in in good faith.
    .
    On the other hand, the language of the document is such that it is understandable why some might feel it subversive to the sovereignty of nation states. This concern may or may not be warranted. Ultimately, I believe, it will depend on the actors on both sides of the issue and how they come to interpret its meaning over time.
    .
    The courts, for example, (with some constraints, perhaps) will ultimately play the largest roll in deciding the weight of the declaration. It will effectively be handed away from politicians, local or national governments or the organizational leadership of Indigenous groups themselves—though the latter will wield certain interpretive and moral power that can shift the direction of sentiment over time. This will not be a static process but a fluid one.
    .
    While I understand the desire to enhance institutions and processes that preserve culture, I am have concerns that, for example, calls to enhance and protect the practice things like traditional science and education (these are only possible examples) could act as mechanisms to withdrawal, under an idealized and romantic worldview, from the adaptation needed to fully participate in modernity. We see strains of this now were isolation from modernity is understood as a panacea to the ills that have accompanied modernity, rather than as real tools for participating in the world.
    .
    For example, Indigenous institutions that are not well adapted to modern practices are more susceptible to enshrining maladaptive practices beyond the scope of necessary criticisms from beyond the bounds of indigenous people alone. Some would celebrate this, but consider for example the abuse of financial resources by small family cliques within some Indian Bands in the south, where mechanisms for accountability are so weak they allow for the perpetuation of abuse, cloaked as it were under the unassailable guise of ‘cultural practice.’ These are class hierarchies replicating themselves under a system that protects them from charges or pushback against abuse.
    .
    An example from Nunavut, the dissolution of the Nunavut Social Development Council
    by NTI (a group embedded in the NLCA), which has met no resistance, no criticism and silence in the place where accountability should be demanded. Let’s hope this issue is raised in the upcoming election.

  5. Posted by Brad Chambers on

    Tiny minority interest groups!? Admitedly, indigenous Canadians account for, what, 4% of the population of the country, and that is not huge, but it is not tiny, especially when you recognize that is down from 100%, a while back. Also, there are many non-indigenous Canadians who support reconciliation and a recognition of rights, even rights that have been trampled so consistently than many forget that anything is wrong. More importantly, the size of the group – minority or majority – that is being discussed shouldn’t have any bearing on upholding their rights.
    So far there seems to be 2 opinions: it is nice symbolism or it is a problem because -(please sit for your own safety), indigenous peoples may have the final say on their own lives and what is left of their lands. And that might mean other Canadians lose something in the bargain. It should; if it doesn’t, it was just symbolism.
    Oh, and Wilson-Raybould does support UNDRIP, but says more legislative change is needed to go along with it, because it is supposed to be more than symbolism.

    • Posted by Hillbilly Elegy on

      …”it is a problem because… indigenous peoples may have the final say on their own lives and what is left of their lands.”
      .
      A bit like your own comment, UNDRIP is effectively one big aspirational signal to the world that yes, we are so virtuous, behold! (yet, not much will change by us saying so… we need not emphasize that fact).

    • Posted by Terje Haakenson on

      I’m all for reconciliation, the recognition of culture, and ensuring that FN Canadians receive the necessities required to thrive (water, health care, education, etc.)

      I hit a wall when we start talking about giving ownership and control over land. I have seen first hand how badly this can play out. The land of Canada should be controlled by the Federal government, period. There is no reason, in my mind, why an Indigenous population of a few thousand (in my area) should have control over a massive swath of land where hundreds of thousands of non-Indigenous people live.

      I don’t believe the politicians making these decisions at the highest level have any clue (or concern) about how things play out in smaller communities.

    • Posted by Tax by another name on

      “it is a problem because… indigenous peoples may have the final say on their own lives and what is left of their lands”
      .
      It is a problem when the rest of the population has to pay for FPIC, just like a tax, over lands and concerning rights that have not even recognized by law. UNDRIP will require consent even when claims from indigenous groups have no historic evidence to support them. Great example is the pipeline last year. Government gets CONSENT of all band chiefs, but not “hereditary chiefs” who never have had their aboriginal title recognized by law. Under UNDRIP, it means no pipeline.

      • Posted by Terje Haakenson on

        Bingo.

        There were many FN people who wanted that pipeline because it meant revenue and jobs. How “Hereditary Chiefs” 3 provinces away can dictate the desires of FN workers on the other side of the country is beyond me. Better yet, it highlights the issues with this document – it treats FN people as one singular group. They are not. It’s different bands with different needs and wants and legislation like this means the the Federal government is powerless to step in and say “No, the country needs this, we’re making it happen.” Major projects will be sidelined based on the competing interests of different bands.

        It is a terrible bill with vague language that will lead to more issues down the road (e.g. TCP and Nova Scotia fisheries).

  6. Posted by Brad Chambers on

    Where do you get your facts from? The UNDRIP specifically says governments should consult the institutions that indigenous people themselves want to represent them. Band councils are structures created by the colonial Indian Act. The Hereditary chiefs where the pre-existing leadership structure (right there, not 3 provinces away. I think you are confused by the shows of support from other groups). Just because it seems confusing to some observers doesn’t mean it is suspicious or even complicated. Secondly, the hereditary chiefs actually proposed two routes for the pipeline through their land. The proponent just decided to use their weight and reliance on the sort of public ignorance and self-interest that is exhibited in many comments here to push through their preferred , cheaper, optiion. To say indigenous self -control means no development is alarmist and wrong.
    The knee-jerk assumptions about indigenous governance being less competent sure smells bad to me. It is not a problem if the rest of Canada pays a price of some kind for FPIC. That is restitution. Imagine someone steals your wallet, then complains about the hardship when they have to give you a quarter of it back. A bit shocking? Well, that’s exactly what I’m seeing in these comments.

    • Posted by Not Surprising on

      Well, it can’t be too surprising people here are incredibly misinformed… You have people saying talking about this bill as if its foreign imposition on Canadians, and that it will threaten the sovereignty and territorial integrity of Canada… Despite the fact the bill was largely crafted and created through the involvement of many Canadian indigenous groups and politicians like Romeo Saganash, that the bill is being chosen to be discussed and signed onto and Canadian politicians are willingly starting the process to harmonise Canadian law with it, and the fact that the bill itself literally has a clause saying it cant be interpreted to override territorial and political unity and state sovereignty.
      .
      And when that gets pointed out, as clear and unambiguous objective fact, instantly you get people saying “actually, it’s all subjective and that clause doesn’t mean anything”.
      .
      People love conflating things and filling in their lack of understanding with other issues they don’t understand… like the rail blockades and ‘issues of hereditary chiefs’, which have literally nothing to do with UNDRIP.
      .
      Comments sections often attract the most outraged rather than the most informed.
      .
      The comments sections would be massively in favour of the Clyde River Hamlet case where Inuit were standing up for poorly planned and environmentally dangerous fracking testing that would destroy marine mammal habitats and migration… and then go and complain about how other indigenous groups want to have a say in managing their lands and waters. It’s just non-sensical, nonstop.
      .
      So many have the colonised mindset where they think anyone who looks more like them must be worse at maanging things than the blondes and blue-eyed people that have been mismanaging much of the country since their ancestors first landed and set up the dysfunctional system of the Canadian colonial project… People will complain about mismanagement from know-nothing bureaucrats in Ottawa and then complain about assumed mismanagements which will arise from local people having a say on local issues.
      .
      There’s just no pleasing some people, they are just bitter for the fun of it and refuse to become better informed.

      • Posted by Soothsayer on

        Interesting comment. A few thoughts;
        .
        Would you say that the ‘Act Respecting the Future of Quebec’ (1995) was not a threat to the territorial, legal or integrity of Canada, because it was written by Canadians? Probably not…
        .
        *Not to suggest UNDRIP is the same, only that origins do not preclude possibilities like this (which seems to be your point).
        .
        As to whether the declaration objectively refutes this concern, or that “the clause doesn’t mean anything,” this gets us to the more interesting question. To understand the concerns some might have we need to consider qualitative differences between specific uses of language. Consider the difference between terms like ‘should’ and ‘will’ sprinkled throughout the document. As I see it the appearance of ‘should’ in a political declaration often indicates a lukewarm, milquetoast, commitment to an ideal.
        .
        On the other hand, terms like ‘will’ and ‘shall’ or claims to specific rights carry a different weight that will undoubtably have real world legal implications.
        .
        To expand on this point, you state it is a fact that the “bill itself literally has a clause saying it cant (sic) be interpreted to override territorial and political unity and state sovereignty.”
        .
        I believe you are referring here to Article 46. If so, your interpretation is not entirely clear. Consider the wording:

        “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
        https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
        .
        The sovereignty of states over specific legal decisions is not explicitly defended, only that this Declaration shall not be used to dismember them or threatened their own territorial integrity. That leaves considerable ground for the reinterpretation of existing laws and the implementation of rights claims.
        .
        Also consider Article 46.2 – The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations.
        .
        No mention of constraints by sovereign states, such as Canada. The only constraints and indeed, the only reference point for any limitations at all are by “international human rights obligations”… in other words, by rules set out by the United Nations, no one else.

    • Posted by Nonsense on

      “It is not a problem if the rest of Canada pays a price of some kind for FPIC. That is restitution”.
      .
      When indigenous chiefs have an unproven legal claim and will, under UNDRIP, veto projects, that is not restitution – that is paying people for unproven claims. I hope my car insurance follows suit with UNDRIP and then I’d never have to prove a claim again, just make a claim and get paid whatever I say.

  7. Posted by Valid Concern on

    The concern I have with UNDRIP is less about the duty to consult as this is already a standard practice.

    My issue is with the constraints on the declaration itself. As pointed out above these seem vague and open to a range of interpretations which are simply too broad and, should they be implemented, require a much wider public discussion around implementation.

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