By: Athina Pantazopoulos
In our previous Spring 2023 issue of the Moot Times, I wrote a review of the Federal Government’s Draft UNDRIP Action Plan and noted a number of glaring gaps that had yet to be addressed only three months before the legislated deadline to produce a working plan. Since then, the final plan has been released and while many of the most evident gaps have been filled, there are still a number of concerns that the plan does not address. These gaps have the potential to seriously undermine reconciliation efforts and the effective implementation of UNDRIP principles.
UNDRIP and DRIPA
In 2021, the federal government passed the United Nations Declaration on the Rights of Indigenous Peoples Act (DRIPA), officially affirming into domestic law the United Nations Declaration on the Rights of Indigenous Peoples 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.
It is the second obligation that this article will examine.
The act is explicitly clear that the action plan must be prepared and implemented “in consultation and cooperation” with Indigenous peoples; that the action plan must include both measures to eliminate injustices, violence, and discrimination and measures to ensure recourse, remedy, and accountability; and that the plan must be completed no later than June 21, 2023.
When the government released the first draft of their action plan on March 20, 2023, I was concerned that they were not providing enough time to receive meaningful feedback from Canada’s Indigenous peoples, especially given that the draft document was incomplete, the collaborative process had already been criticized, and the plan contained very meagre accountability measures. Nevertheless, a final action plan was released on June 21, 2023, and while the Federal Government does appear to have addressed a number of these concerns, weak accountability measures remain.
Final Action Plan
The finalized action plan has built significantly on the former draft, and while there are a number of very positive commitments, there is some vagueness relating to how those commitments will be implemented and what measures will be taken to ensure effective implementation.
Some notable commitments include: a commitment to repeal the Indian Act and to consult with impacted Indigenous groups to develop an opt-in alternative; a commitment to ensure that all bills and proposed regulations are consistent with UNDRIP; a commitment to co-develop a framework to transfer responsibility for the design, delivery, and management of services from Indigenous Services Canada to Indigenous partners; and a commitment to develop guidelines for consultation and cooperation in good faith with the Indigenous peoples impacted by natural resource development in order to obtain free, prior, and informed consent prior to the approval of any project.
While specific articles of UNDRIP are occasionally referenced within the Plan, there remains a lack of clarity as to which commitments align with which UNDRIP principles, which means that it may not be evident whether the Action Plan effectively works to implement UNDRIP for many years. The UNDA Action Plan is intended to be an “evergreen roadmap” that can be modified as needed to “achieve the objectives of UNDRIP” and will be monitored through publicly available progress reports prepared by the Government of Canada. The Action Plan also notes that an “Action Plan Advisory Committee” composed in part of First Nations, Inuit, and Métis experts will be established to “provide support and advice, upon request” which will then be considered by Ministers as they implement the Action Plan.
It's fairly evident that while Indigenous peoples are being “consulted” in the development, implementation, and review of this plan, the bulk of the power and responsibility to determine final priorities remains in the hands of the federal government, and very little recourse is provided if they fail to meet their stated objectives.
The Importance of Accountability
Accountability is a key element to creating trust and goodwill, and by extension, achieving meaningful reconciliation. The Government of Canada has demonstrated a pattern of disregarding Indigenous rights that has been noted both domestically and internationally, and these same patterns persist even as the government continues to voluntarily take on additional human rights obligations by enacting DRIPA.
It may seem that the government has made efforts to put accountability measures in place. Enacting DRIPA works to render an otherwise non-binding international declaration binding in domestic law. The UNDA Action Plan sets out a proposed monitoring and review framework to be co-developed in partnership with First Nations peoples and measured against clear and specific indicators and timelines. The government has committed to publicly report on progress implementing the UNDA Action Plan annually and to collaboratively review and update the action plan every five years. These are all positive steps towards accountability, assuming that the government follows through with their commitments and never demonstrates any resistance to achieving the objectives of UNDRIP. I would argue that while a number of good accountability plans have been presented, it is unlikely that these measures will prove effective, given the Federal Government’s continued reticence to prioritize Indigenous rights.
Binding Legal Commitments
Canadian courts are theoretically given the authority to hold the government to account when they fail to meet their binding obligations. In practice, courts have had varied levels of success holding governments in check when their action or inaction has resulted in the violation of human rights. This is demonstrated in the ongoing legal challenges presented by the First Nations Child and Family Caring Society of Canada (FN Society).
The FN Society has been fighting in Canadian Courts and Tribunals for the government to effectively fulfill their obligation to provide effective delivery of child and family services in First Nations communities in Yukon, as well as their undertaking to apply Jordan’s Principle in cases of medical need since 2011. Despite the fact that the Canadian Human Rights Tribunal ordered the government pay compensation to families of children apprehended from their homes from January 2006 onward, until such a time that discrimination in child welfare funding ceased to be discriminatory, the Government of Canada has yet to comply, and has since had the case judicially reviewed and appealed.
Canada is evidently not moved by court orders, and more than willing to draw out legal proceedings when found to be in the wrong. Indigenous peoples have no reason to believe that a binding commitment to implement UNDRIP would ensure that the government complies with their obligations.
Proposed Monitoring and Review Measures
Co-development of monitoring and review measures is undeniably a positive step. The commitment to employing clear and specific indicators and timelines will ensure that government progress is easy to track. This will be a powerful tool to demonstrate where the government is failing to meet their obligations, however, once that is determined there is no actionable recourse that First Nations partners can take. This measure does not address the extremely unbalanced relationship of power between the Government of Canada and First Nations partners.
Annual Report and Periodic Review
Annual reporting is another great tool to measure whether the government is meeting its obligations. However, like the monitoring and review measures proposed in the UNDA Action Plan, this tool does not ensure government action.
We have seen in a number of areas, including endangered species’ protection and recovery, that the government will gladly report that no action has been taken to advance their own policy commitments, or simply fail to report if the policy commitment is not a priority.
Accountability measures are necessary if the government is to be trusted to prioritise the internationally recognized human rights of Indigenous peoples over the financial and political interests of the federal government. Holding any government to account is, and continues to be, a challenge that will not be solved by one action plan, but the government’s demonstrated lack of goodwill continues to cause anxiety.
Canada is Not Alone, Accountability is also a Challenge Abroad
While UNDRIP remains a non-binding international declaration, a number of other states with histories of widespread Indigenous colonization have made their own commitments to adopt the declaration domestically. Boliva, Australia, and New Zealand are all notable examples of states that have made similar efforts to integrate UNDRIP into domestic law or policy, and each of them has likewise struggled to ensure meaningful government accountability.
Bolivia enacted National Law 3760 in 2007, mere months after signing UNDRIP at the UN. While initially the state made a great number of legal and policy changes to address the rights of Indigenous Peoples, a change in governance and continued economic reliance on extractive industries have pushed Indigenous Rights to the wayside. While the state’s violation of their own legal framework is well documented and has addressed by domestic courts, there is no evidence that the state intends to take any steps to modify its actions.
Australia has taken a slightly different approach. A bill was brought before Parliament to implement UNDRIP domestically, but the government took steps independently to promote the rights of Indigenous people through their National Agreement on Closing the Gap. This Agreement, like the UNDA Action Plan, relies on annual reports and updates to ensure accountability; however, unlike the UNDA Action plan, the Agreement establishes independent Aboriginal and Torres Strait Islander led reviews that seek to balance the uneven power dynamic between colonizer state and Indigenous community. These reviews allow for more critical reporting, but there is nothing that Indigenous partners can do to push for further action if the government continues to fail in meeting their obligations.
New Zealand’s own action plan most closely mirror’s Canada’s approach to UNDRIP implementation; however, they have taken a much more meticulous route to developing an action plan. Development began in 2019, and the final action plan has yet to be released. From the drafts that have been set out, accountability measures (regular reporting and review) seem to, once again, rely on government goodwill.
The task of reconciliation has never been purported to be simple or straightforward. Despite the concerns of weak accountability and enforcement options, any commitment to promote Indigenous rights is welcome, and I hope that the Government of Canada continues to build robust government-to-government relationships with First Nations across Canada and remains committed to implementing and reviewing the actions set forth in the UNDA Action Plan.
