Toward UNDRIP: Bill C-262 and Partisan Attacks on Indigenous Rights

Parliament is debating a Private Member’s Bill introduced into the House by Romeo Saganash (NDP) in April of 2016. The proposed legislation, Bill C-262, would require the conformity of all of the laws of Canada with the United Nations Declaration on the Rights of Indigenous Peoples. While the Government was initially opposed to the Bill, they committed in November of 2017 to support the legislation.

On second reading of the Bill on February 7, 2018, the House voted in overwhelming majority to support the proposed legislation, except every single Conservative Party of Canada MP, all of whom voted against.

The UNDRIP, itself, is a non-binding international legal document; however, most of the principles expressed in the UNDRIP are binding principles of international law, such as the rights of all peoples to self-determination and the right to be free from genocide. The Saganash Bill essentially takes this codification of Indigenous rights at international law and requires the strict conformity of Canadian legislation with these rights. So why would anyone oppose conforming domestic law with Indigenous rights?

You’d better take a moment to stretch, because there is some serious contortion involved here.

During the House’s February 5, 2018, MP Mark Strahl (CPC) argued that there are principles under UNDRIP, particularly the right to give or withhold free, prior and informed consent (FPIC), that are simply incompatible with Canada’s domestic law. According to Mr. Strahl, the Canadian courts and Parliament have spent decades developing law on state-Indigenous matters, and that implementing the UNDRIP would be inconsistent with this law.

Mr. Strahl went on to argue that the UNDRIP would give Indigenous peoples a “veto” over state decision making that other groups do not have and that more time is needed to understand what the UNDRIP principles really mean in application in Canada.

While the Conservative position that there is uncertainty in the way some principles of the UNDRIP can and should be implemented in Canada is true, that argument misrepresents what Bill C-262 actually does, and the position that FPIC is inconsistent with domestic law is entirely misleading. There is, after all, nothing in the constitution which would prohibit Parliament from ensuring greater guarantees for Indigenous rights than those provided under the Constitution.

As Linda Duncan (NDP) pointed out in the House debate, Bill C-262 requires that any legislative reforms for the implementation of the Declaration be undertaken in consultation and collaboration with aboriginal peoples. The reason Parliament cannot exactly define every UNDRIP principle and its application domestically is because the principles cannot be applied uniformly. Indigenous peoples in Canada are not one harmonious group and the application of UNDRIP must respect that diversity.

Bill C-262 is the beginning of the process. It is a legislative commitment to conforming Canada’s laws with Indigenous rights and sets out consultation, collaboration and reporting requirements to achieve this goal.

The Conservative Party of Canada is working hard to distort the issues around the implementation of UNDRIP, but the reality is that opposition to Bill C-262 is not a defence of domestic law; it is an attack on the basic international principles of Indigenous rights.

UPDATE – On May 8, 2018, Bill C-262 was passed by the Standing Committee on Indigenous and Northern Affairs.

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