By Athina Pantazopoulos
It’s no secret that Canada has had a troubled history with its Indigenous peoples. When the United Nations introduced the Declaration on the Rights of Indigenous Peoples (UNDRIP) on September 13, 2007, Canada was one of only four states to vote against its adoption. The federal government did formally endorse UNDRIP in 2010, but at the time was clear that the declaration was an “aspirational document” that was not binding in domestic law. This is not an uncommon approach. Canada takes a “dualist” approach to international law, meaning that international conventions are not binding unless and until they are adopted in domestic legislation.
In 2021, the federal government passed the United Nations Declaration on the Rights of Indigenous Peoples Act (DRIPA), officially affirming UNDRIP in domestic law and setting out what the act calls a framework for “implementation.” This framework sets out three main obligations for the federal government:
Ensure that all laws of Canada are consistent with UNDRIP,
Prepare and implement an action plan to achieve the objections of UNDRIP,
Prepare an annual report on the progress of the two obligations above.
Recently, the Government of Canada made a public advancement in the second of these three obligations. While these steps may seem to indicate some forward momentum in the implementation of UNDRIP, closer investigation reveals that efforts have been performative at best and do not meet the obligations envisioned in DRIPA. Worse yet, there are no mechanisms in place to hold the government to account on the legislated obligations that they have undertaken, leaving Canada’s Indigenous peoples once again left waiting with empty hands.
What is UNDRIP?
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international human rights treaty aimed at setting out a universal minimum standard of treatment for Indigenous peoples around the world. This declaration was created in collaboration with Indigenous representatives from around the world, and addresses both individual and collective rights.
Some of the most noteworthy articles of the declaration include:
article 18, the right to participate in decision-making in matters which affect their rights;
article 19, the right to free, prior, and informed consent before implementing administrative measures that may affect them;
article 28, the right to redress and restitution; and
article 38, the obligation of States to take appropriate measures to achieve the Declaration in consultation and cooperation with Indigenous peoples.
What did DRIPA Require?
Section 6 of DRIPA sets out the form and content requirements of the federal action plan. There are a few key requirements that need to be highlighted.
The Act is explicitly clear that the action plan must be prepared and implemented “in consultation and cooperation” with Indigenous peoples. “Indigenous peoples” is defined in the Act as having the same meaning as that assigned of “aboriginal peoples of Canada” in s. 35(2) of the Constitution Act, 1982, meaning that it includes First Nations, Inuit, and Métis peoples.
The content of the action plan is also set out with a fair amount of detail. The Act outlines a number of required elements that must be considered and addressed within the action plan. In short, the plan must include both measures to eliminate injustices, violence, and discrimination, and measures to ensure recourse, remedy, and accountability. The wording of this section is broad enough that these measures could take a variety of forms, but the underlying assumption is that these measures must be fair and effective.
Finally, the Act set outs a time limit for the government to produce a “final” action plan. The Act does require that the action is able to be reviewed and amended when necessary, but also sets a hard deadline for completion no later than 2 years after the day that DRIPA came into force. The action plan must therefore be completed no later than June 21, 2023.
What did the Government Present?
On March 20, 2023, the Department of Justice released a “Draft Action Plan” for discussion and feedback. The document is 21 pages setting out “priorities” to be addressed in implementing UNDRIP in Canada.
These priorities are laid out in 4 groups: 1) shared priorities, 2) First Nations priorities, 3) Inuit priorities, and 4) Métis priorities. Each section is further divided into thematic categories, and “action items” are listed with federal departments assigned in bold. The bulk of the document is dedicated to setting out shared priorities, with only 2 pages dedicated to First Nations, 1.5 pages dedicated to Métis, and a complete absence of content for Inuit.
Articles of UNDRIP are referenced throughout, but often it is left to interpretation to decide how these articles are related to the action items presented.
Overall, the document is short, incomplete, and difficult to understand.
What is Missing?
While the product of a draft is evidence that the Government of Canada has dedicated some time to considering UNDRIP implementation, this document is effectively meaningless and demonstrates significant shortfalls in the consultation and collaboration process.
Collaboration and Cooperation
At the very start of the document, it is made clear that the draft is incomplete. A full section on Inuit priorities is left blank “pending further co-development,” as are the subsections “vision for the future” and “shared understandings/principles.” Surely clarifying these two subsections should have been the first step in creating a meaningful collaboration?
The process of developing the action plan is similarly confusing. The release of the draft document marks the end of the “first phase” of what the government describes as a “two-phase broad, inclusive, and distinctions-based consultation and cooperation process.” This first phase, running from December 2021 to March 2023, was intended to identify priorities and potential measures to be put in place. To do this, the Government of Canada consulted with Indigenous peoples and distilled their varied and complex priorities into a single document where they (seemingly unilaterally) decided on the best approach to addressing these priorities.* The second phase, set to run from March 20, 2023 to June 21, 2023, a period of only 3 months, is intended to serve as a period of “validating proposed measures and modifying them as necessary.” Indigenous peoples, organizations, and communities are invited to submit their comments on the draft document, which the government will consider and put towards making changes. It is not evident that Indigenous peoples will have any meaningful input into what the final document looks like, as the government appears to have full discretion over what stays and what changes.
The draft document is upfront that the agreement of Indigenous partners on the contents of the document has not yet been secured, and it is unclear whether it ever will be. In order to meet the guidelines set out in DRIPA, all that is required is “consultation and cooperation.” This requirement actively goes against the intentions of UNDRIP, but as UNDRIP is a non-binding international document, the government has full discretion how they chose to pursue implementation.
*In their companion document, the “What we Learned to Date Report,” the government outlines in much more detail what their process of information gathering looked like.
Recourse, Remedy, and Accountability
According to the “What we Learned to Date Report,” issued alongside the Draft Action Plan, the category of “implementation and redress” garnered the greatest number of priority recommendations from Indigenous partners. Despite this finding, there is very little in the Draft Action Plan to establish any form of accountability for implementation.
The federal government ultimately appears to maintain full discretion in determining whether they are meeting their UNDRIP obligations. While there is a monitoring and implementation section in the plan, this includes only obligations to publish an annual public report and to review and update the action plan every 5 years. There are no measures in place to prompt government action if they fail to meet deadlines, no measures in place to allow for Indigenous input into the manner in which action plan items are implemented, and no measures to register complaints.
Canada may have made a commitment to enshrine UNDRIP in domestic law, but unless there are meaningful accountability measures in place to ensure compliance with the obligations of the declaration, this action is effectively meaningless.
Time to Respond
As previously mentioned, the government has scheduled only 3 months for “phase two” responses and subsequent adjustments before the final plan is released. Considering that “phase one” consultations took over a year-and-a-half, and were not able to produce sufficient outcomes to complete a full draft, the task of collecting, reviewing, and implementing responses in only 3 months seems ambitious. Additionally, the government does not seem to be prepared to address criticisms that will require deep and substantial changes to the form and content of the plan. The Draft Action Plan indicates that “the second phase will consist of validating proposed measures and modifying them as necessary,” which seems to suggest that Canada is expecting general agreement going into phase two. Given the incomplete consultation provided in phase one, this expectation seems incredibly unlikely.
This tight timeline will also prevent changes from being implemented collaboratively as was seemingly contemplated in DRIPA. The government may still make a meaningful attempt to engage with Indigenous people and organizations that chose to submit commentary; however, based on what we have seen so far, it seems much more likely that Canada will unilaterally decide which comments to further implement and which comments to dismiss.
These tight timelines are not a new trend; Canada has demonstrated a pattern of leaving little to no time for meaningful input from Indigenous partners in their past efforts at consultation. Tight timelines that did not allow for meaningful consultation were well documented in the TMX project, in the cases brought by both the Tsleil-Waututh Nation and the Coldwater First Nation. In both cases, the Federal Courts ultimately found that this disregard for adequate time to respond contributed to the finding that the Crown did not adequately meet their obligations to consult. While the Action Plan is not bound by the same consultation duties as energy development projects, the Crown’s failure to provide time for meaningful engagement is the continuation of a troubling pattern that does not bode well for successful UNDRIP implementation.
What has Been Said in Response
Despite the short timeline, a number of Indigenous organizations have completed thoughtful and in-depth responses to the draft that demonstrate just how much work there is still to do to create a meaningful Action Plan that will make any significant progress in implementing UNDRIP in Canada.
The Yellowhead Institute (an Indigenous-led research center) released a general memo shortly after the draft plan went public, wherein author Hayden King, criticizes the plan for failing to put forward any actual action items. King notes that the draft fails to propose anything new, saying:
“The vast majority of the actions reflect work already underway […] in some ways, the draft Action Plan resembles an internal government tracking document of all the federal Indigenous policy, programs, legislation and initiatives.”
King’s memo does note that there is potential hidden within the draft that could work towards meaningful action. The draft plan includes passing mentions of both consent protocols and monitoring bodies to be developed moving forward. These elements have not been present in previous government actions and are necessary to meet the objectives of UNDRIP. King does not note that these two elements are among the few in the plan that lack a departmental assignment, and therefore are most likely to lag on implementation, though the rest of the memo makes it clear that King does not have high hopes for implementation in the first place.
Another response worth noting is the detailed commentary provided by the Assembly of First Nations. In their report, “Implementing the UN Declaration,” the assembly breaks down areas of concern, how these areas are addressed in the government draft, necessary outcomes that are required to achieve the objectives set out in UNDRIP, and essential elements that are required to meet these outcomes. This document is everything that the draft should have been. It is clear, specific, and extensive. While it was not developed with Métis or Inuit representation, it is the result of extensive conversation at the Special Chiefs Assembly of April 3, 2023, and thus represents the input of a wide variety of First Nations. Finally, it is attentive to the actual meaning behind the various articles of UNDRIP.
While these responses do not represent the entirety of the Indigenous population in Canada, it is clear from the many concerns raised that Canada needs to try harder. Repeated assurance that the government is committed to reconciliation are not meaningful when the actions that follow are lackluster. UNDRIP implementation will be an incredibly challenging task and will require dedicated long-term effort and meaningful accountability to ever be successful. We will see on June 21st how the Government of Canada plans to meet this challenge.
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