The UN Declaration on the Rights of Indigenous Peoples provides “a crucial framework for achieving reconciliation, justice and healing in Canada for all Indigenous peoples,” according to Paul Joffe, a lawyer who represents the Grand Council of the Crees in international forums and who has done a lot of work on Aboriginal law.
Joffe was part of a panel that discussed the declaration in one of the sessions at the closing event of Canada’s Truth and Reconciliation Commission (TRC) being held at the Delta Ottawa hotel, May 31 to June 3.
Adopted by the United Nations General Assembly in 2007, the declaration has been praised by Indigenous legal rights experts as “the most comprehensive international human rights instrument” for Indigenous people around the world seeking to ensure that their rights are protected by the laws of the countries they inhabit.
In 46 articles, the declaration upholds the rights of Indigenous people as distinct in all aspects of their lives in relation to the states in which they live. This includes (among many others) rights to self-determination (Article 3), self-government (Article 4), the right not to be forcibly removed (Article 10) and the right to demand that states “obtain free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them” (Article 19).
Canada—along with the United States, Australia and New Zealand—initially refused to adopt the declaration, but endorsed it as a “non-legally binding aspirational document” in 2009.
While every panelist agreed that the declaration was a potentially powerful tool for advancing reconciliation, they were also united in their skepticism about the Canadian government’s willingness to act on it in good faith.
The declaration guarantees that Indigenous peoples are “free and equal to all other peoples and individuals” and have the right to “practise and revolutionize their cultural traditions and customs,” but Canada’s policy toward language education reflects its lack of commitment to these principles, said Ellen Gabriel, an Indigenous rights activist from Kanehsatà:ke and former president of the Quebec Native Women’s Association. “Canada invests—if you can even call it the right word—$2 per Aboriginal child in the revitalization of languages. It spends $2,000 per French child for the French language, and $4,000 [per child] for the English language. So there we go: for the revitalization of our own language, we don’t have a chance.”
Notwithstanding the government’s unwillingness to fully recognize it, the declaration is still having an effect on Indigenous law in Canada, said David Langtry, president of the Canadian Association of Statutory Human Rights Agencies and former chief commissioner for the Canadian Human Rights Commission.
“In the short time since the declaration was endorsed by Parliament, it has been relied on in several human rights cases,” said Langtry. “What’s encouraging is in human rights cases, complainants, respondents and the Canadian Human Rights Commission are all using the declaration in their arguments…the declaration helps us further understand how to balance collective Indigenous rights and individual rights.”
Langtry went on to cite what he called “the Child Welfare Case,” involving the federal government in which the declaration was used to argue that because the government failed to provide equivalent funding for care on reserves as is provided for off-reserve care, it was acting in a discriminatory manner.
For his own part, TRC Commissioner Wilton Littlechild said in his address to the panel and the audience that the declaration must be viewed in the context of the treaties.
“When we look at the declaration, every single article has a treaty reference,” said Littlechild. “Indigenous law is like an eagle…one wing [is] carrying the treaty, and the other wing the declaration, and the treaty and the declaration working together makes the Indigenous law fly.”
The panel on the UN declaration, moderated by Jennifer Preston, the Indigenous rights co-ordinator for the Canadian Friends Service Committee (Quakers), also featured Grand Chief Edward John, of the Tl’azt’en Nation in northern interior of British Columbia.