Professor Bradford W. Morse Professor of Law, University of Ottawa August 2008

1. Canada’s Role in the Declaration on the Rights of Indigenous Peoples (DRIP): From Staunch Supporter to Aggressive Opponent Professor Bradford W. Morse Professor of Law, University of Ottawa August 2008

2. Canada’s Role in the Development of the DRIP • Since the mid-1980’s until 2006, Canada’s successive governments participated in drafting an international Declaration on indigenous rights • Canada was a supporter of the United Nations Working Group on Indigenous Populations (WGIP) established in 1982 and which completed a Draft Declaration in 1989 • WGIP later submitted the Draft Declaration to the Sub-Commission on the Promotion and Protection of Human Rights in 1993 • The Sub-Commission, which quickly adopted the Draft Declaration, then submitted it to the former UN Commission on Human Rights (CHR) for consideration • CHR set up the Working Group on the Draft Declaration (WGDD), where Canada also played an influential role

3. Canada’s Role in the Development of the DRIP • For over two decades of debate and discussion, Canada took on a critical leadership role in advancing, and later strongly supporting, the development of DRIP • Canada’s position changed dramatically in 2006, evidenced by its decision to vote against the Draft DRIP at the newly established Human Rights Council (HRC) • The HRC adopted the WGDD Chairperson-Rapporteur’s version of the Draft DRIP on June 29, 2006 by a vote of 30 in favour, 2 against (Canada and the Russian Federation), 12 abstentions and 3 states not recording a vote • Canada’s ambassador to the HRC at the time, Paul Meyer, officially declared “that this Declaration has no legal effect in Canada and does not represent customary international law”

4. Canada’s Contemporary Position • Posted 11 page rationale for its opposition on government website 27 September 2006 • Led a coalition [the “Canada Group”] in August 2007, developing a “non-paper” of proposed amendments to DRIP - largely ignored by other General Assembly members • September 13, 2007, DRIP was endorsed by the UN [144 Member States in favour & 11 abstentions); Canada is one of 4 nations that voted against DRIP (with USA, Australia & NZ) and remains hostile to it today • Canada has damaged its international image as a champion of indigenous rights

5. What Led Canada to Change its Position • Prior to the new Conservative Party government gaining power in early 2006, Canada’s Liberal Party government expressly endorsed DRIP • As the only member of the HRC among dissenting States, Canada was in a strategic position to advocate against the adoption of DRIP • Prime Minister Stephen Harper met former Prime Minister John Howard in May 2006; this meeting allegedly acted as a catalyst in Canada’s shift • The Harper government ignored advice from 3 federal departments and the Parliamentary Standing Committee of Aboriginal Affairs and Northern Development to adopt DRIP

6. Arguments: (1) The DRIP text is vague and ambiguous, leaving it open to different, and possibly competing interpretations (2) The DRIP could be interpreted as being inconsistent with the Canadian Constitution Act 1982, the Canadian Charter of Rights and Freedoms, and past decisions of the Supreme Court of Canada Rebuttal: (1) Redrafting won’t eliminate possibilities of competing interpretations. The DRIP will never reach a level of clarity that there are no possible alternative interpretations (2) The Canadian Government doesn’t even regard the DRIP as having legal effect in Canada. Besides, Article 46(2) makes clear that all of the rights within the DRIP are subject to limitations set out “by law,” thus States can override or infringe on provisions so long as domestic laws respect existing international human rights law Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

7. Arguments: (3) Certain provisions of the Declaration could be interpreted to go beyond existing jurisprudence of the Supreme Court of Canada regarding the collective rights of Aboriginal peoples pursuant to section 35 of the Constitution Act, 1982, such as the right to hunt, to fish and to gather Rebuttal: (3) This argument seems to imply that our Supreme Court cannot expand its own interpretations of section 35 over time, which is absurd. It is interesting to think that the status quo of Canadian case law serves as a ceiling that cannot be surpassed by the DRIP, or presumably any other international non-binding declaration, let alone a binding treaty Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

8. Arguments: (4) The text and provisions on lands and resources fails to consider the wide variety of landholding regimes in existence in our nation, the varying forms of recognizing these discrete lands when exclusively held by or for Aboriginal peoples, and the different types of rights they may possess Rebuttal: (4) the reality is that immensely different situations exist around the world for the over 370 million Indigenous peoples such that one cannot expect an international instrument to reflect all local nuances. Further, agreements between governments & indigenous peoples can reach new arrangements Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

9. Arguments: (5) There is the potential for articles and provisions discussing land issues to have a retroactive effect, undoing centuries of Canadian treaties with indigenous peoples (6) Article 28 affirming the right of redress where lands were lost without indigenous consent is problematic Rebuttal: (5) Fears that prior treaties between the Crown and First Nations, Inuit and Métis peoples in Canada might be undone is unfounded as Article 37 affirms that “treaties, agreements and other constructive arrangements concluded with States” are to be honoured and respected (6) Article 28 recognizes that prior land loss will have occurred and does not suggest that all such circumstances will be corrected by dislocating current occupants and returning the land Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

10. Arguments: (7) Article 27 suggests the creation of specific adjudicative mechanisms, and is so prescriptive it precludes other successful approaches for resolving land claims issues, such as direct negotiations Rebuttal: (7) Article 27 requires a “fair, independent, impartial, open and transparent process” for litigating land claims issues, and for indigenous peoples “right to participate in this process.” The Government’s concern is the absence of Aboriginal peoples in establishment of CDN court system, but suggesting negotiations are precluded by text is groundless as it is inherent in any form of adjudicative process Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

11. Arguments: (8) Article 29 is opposed because the right to the conservation and protection of the environment is not recognized at international law Rebuttal: (8) Environmentalists and indigenous peoples among others may find the opinion that international environmental law does not support the right to environmental protection as a human right a surprising one. Canada also wanted an amendment that would limit any State obligation to providing equal access to existing environmental protection assistance programs, rather than the text’s placement of a mandatory duty to “establish and implement assistance programmes for indigenous peoples” to meet this objective Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

12. Arguments: (9) Self-government - Article 4 fails to address the sources of funds to finance self-government & should have clarified indigenous governments’ share of responsibility for financing their functions. There should also be an explicit paramountcy clause that favours federal and provincial laws over others (10) Articles using the language “free, prior and informed consent” could be seen as an indigenous veto over matters that also affect non-indigenous populations Rebuttal: (9) Canada opposed Article 4 but not Article 3 which affirms “Indigenous peoples have the right to self-determination.” The government’s complaint would have some merit if the onus was on States to finance such means of self-government, but Article 4 does not do so (10) Prior consent on projects impacting traditional lands would limit governmental freedom, and DRIP goes further than current CDN jurisprudence, but again DRIP is not binding and recognizes indigenous rights are subject to limitations “determined by law” Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

13. Arguments: (11) Art. 10 restricts capacity to relocate Aboriginal communities during times of disaster, armed conflict or other emergencies, while Art. 30 requires Indigenous agreement for military activities on their lands (12) Art. 36 assures the “right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes” across international borders should be exercised in accordance with border control laws (laws on customs and immigration) Rebuttal: (11) Art. 30(1) addresses such concerns, as it acknowledges that consent can be overridden where “justified by a significant threat to relevant public interest.” It is hard to envision how natural disasters or armed conflict would not surpass a “public interest” test (12) Amendments in final text may have clarified, yet even as it stood then federal immigration & customs laws are secure both under the general limitations of DRIP as well as through many other international law instruments Specific Concerns Articulated by the Government of Canada and Why These Arguments Fail

14. Recent Positive Movement on DRIP in Canada’s House of Commons • In April 2008, Parliament’s House of Commons passed by majority vote a resolution to endorse DRIP • Conservative Party maintained its opposition as only party to vote against resolution, stating erroneously that the “Declaration would undo centuries of Canadian treaties with Indigenous peoples” • Domestic pressure & momentum has built to adopt DRIP since Harper government’s national apology for the approximately 150,000 Aboriginal children who suffered traumatically while in residential schools in place for a period over a hundred years • In June 2008, Bill C-659 was introduced by a Liberal Member of Parliament which, if passed, would ensure Canadian domestic laws are consistent with DRIP

15. DRIP and Domestic Law in Canada • Even though Canada did not vote in favour of DRIP, it may still be compelled to comply with its principles • The Supreme Court of Canada is known to look to international instruments to guide its reasoning in domestic decisions and particularly in interpreting Constitutional provisions and common law principles - thereby indirectly may force the federal government to comply with international obligations • CDN government will hopefully change its mind in future