Indigenous Activists Networks
Defenders
of the Land, Truth Campaign, Idle No More
PRESS RELEASE
UNDRIP BILL C-15 DEEPLY FLAWED AND MUST BE REJECTED SAY
INDIGENOUS
NETWORKS AND LAND DEFENDERS
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(December 11, 2020) The Federal UN Declaration of the Rights of Indigenous Peoples Bill C-15 “is a sleight of hand that promises to increase and expand Indigenous rights but actually accomplishes the opposite,” says Truth Before Reconciliation Campaign spokesperson Russell Diabo.
“The government has done this,” he says, “by flipping the requirement for making Canadian law’s subject to the provisions of UNDRIP, to making UNDRIP subject to existing Canadian laws under Section 35 of the Constitution. Section 35 of the constitution has already been adjudicated in Canadian courts to give Canada control of Indigenous lands under the Doctrine of Discovery, and places severe limits on the right of self-determination.”
By subjugating UNDRIP to Section 35, Diabo says, “the government is taking away all of the rights the declaration was designed to recognize. Under Section 35, the Indian Act and other federal laws directed at First Nations and Indigenous Peoples, Indigenous Peoples are not recognized as part of self-determining nations, as UNDRIP is supposed to do, but only as what Prime Minister Trudeau has described as a “fourth level of government” behind the federal, provincial and municipal governments. Similar conclusions have been reached by the Association of Iroquois and Allied Indians (AIAI).”
“While we support the UN version of UNDRIP, Grand Chief Joel Abram says, “the AIAI assembly voted to oppose the UNDRIP Act because in it’s current state it forgoes the original intent of the declaration and instead comes in the form of another White Paper sought by Trudeau’s father. Now the Prime Minister is attempting his own version of the White Paper under the guise of a different interpretation of UNDRIP.”
Professor Nicole Schabus, who teaches law at Thompson Rivers University, says that the central problem is that Bill C-15 tries to “domesticate” international law and “international law is approved and developed at the international level, and these standards cannot be lowered at the national level.” By subjugating UNDRIP to Canadian law and lowering standards, Bill C-15 denies Indigenous Peoples the right to self-determination that UNDRIP recognizes and “the right to self-determination is the main remedy for colonization.”
Diabo was also sharply critical of the way the Bill has been recently presented by the AFN leadership at their recent Assembly. “By refusing to allow debate on the Bill at the AFN Assembly, the AFN is opening the door to a Trojan Horse that is designed to subjugate rather than liberate. Indigenous people should not be dazzled by the flowery language in the Bill’s preamble but must look at the actual content of the Bill to see the danger it poses.” Diabo is now working with Indigenous Networks and Land Defenders from across the country to mount national and even international opposition to the Bill.
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Communications Contact: Tori Cress at E-Mail: info@IdleNoMore.ca Sylvia McAdam, Idle No More Organizer, Cell: (306) 281-8158
Kanahus Manuel, Defenders of the Land, Spokesperson, Cell: (250) 852-3924
Russ Diabo, Spokesperson, Truth Before Reconciliation
Campaign Cell: (613) 296-0110 Rachel Snow, Spokesperson, Truth Before
Reconciliation Campaign Cell: (403) 703-8464
8 Defenders of the Land is a network of Indigenous communities and activists in land struggle across Canada, including Elders and youth, women and men, dedicated to building a fundamental movement for Indigenous rights, was founded at a historic meeting in Winnipeg from November 12-14, 2008. Idle No More was founded by four women (three of whom are Indigenous and one of whom is White) in November 2012 in response to several bills passed in Canada that undermine Indigenous rights and environmental protection. The movement grew quickly, and by January 2013 there were tens of thousands of Indigenous and non-Indigenous people taking part in locally-based actions and mass mobilizations around the world. The Truth Campaign is a core team of people who are part of an advocacy and public education campaign to get Crown governments and Canadian society to address “Truth Before Reconciliation” because the Truth and Reconciliation Commission and its Calls to Action are not sufficient to address the colonization that First Nations have historically experienced and which continues today particularly under the colonial policies and legislation passed under the Constitution Act 1867 and the Constitution Act 1982.
Indigenous Activists Networks
Defenders of the Land, Truth Campaign, Idle No More
Declaration on the Rights of Indigenous Peoples Act
December 2020
Background:
Firstly, there were three distinct drafts of the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP)1
Hundreds of Indigenous representatives had direct participation over years to develop the original Text version of UNDRIP. Politicized negotiations with nation-states lead to the The United Nations General Assembly adoption of draft three in 2007 by resolution. The third draft of UNDRIP in 2007.
Trudeau’s government has been developing a Canadian definition of UNDRIP since 2015, with this qualified statement by Indigenous Affairs Minister Carolyn Bennett to a United Nations body in 2016 “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” [emphasis added
The Government of Canada committed, through the 2019 Minister of Justice mandate letter and the 2020 Speech from the Throne, to ensure the introduction of a government bill to support the “implementation” of the UN Declaration.
Calculated Process Leading up to Tabling of Bill C-15 into Parliament
Bill C-15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples was introduced into Parliament on December 3, 2020, bypassing the rights holders (Indigenous Peoples and Nations). Rather the government focused on its funded organizations (AFN, MNC, ITK) to manufacture consent: a continued violation of our right to self- determination. This manufactured consent brings disrepute to the process, the administration of justice and the compromised people who have cooperated with the oppressor—the government of Canada.
Bill C-15 will negatively impact all aspects of the lives of Indigenous Peoples and Nations in Canada for generations to come, because the Bill will keep in place the colonial system of the Crown’s (federal, provincial, municipal) centuries old domination through its laws, including the Constitution Act 1867 and the Constitution Act 1982, which are based on the colonial Doctrine of Discovery.
If this Bill becomes federal law, all aspects of the lives of Indigenous Peoples will be impacted negatively for generations to come because the colonial system remains in place. The Doctrine of Discovery underscores Canadian law including the Constitution Act 1867 and the Constitution Act 1982.
1 Indigenous Nations' Rights in the Balance, An Analysis of the Declaration on the Rights of Indigenous Peoples, By Charmaine White Face, Zumila Wobaga, 2013, Living Justice Press
Federal UNDRIP Bill C-15 Preamble:
The preamble of Bill C-15 is not legally binding, it is meant to confuse and mislead Indigenous Peoples and Nations as to what really is, or is not, in sections 1-7 of Bill C-15. The courts will focus on the main sections (1-7) of Bill C-15 not the preamble.
So, do not be fooled by supporters of Bill C-15 who refer to the preamble, which is weakly worded to benefit the Crown anyway. For example:
• the preamble states that the doctrine of discovery is “legally invalid”, but Bill C-15 contains nothing to acknowledge or reverse the common law’s reliance on the doctrine of discovery in its interpretation of s. 35 of the Constitution Act, 1982;
• the preamble states the urgent need to respect and promote the inherent rights of Indigenous peoples, including their rights to their lands, territories and resources, but then contains no substantive provisions about this in Bill C-15;
• the preamble weakly states that the “declaration is affirmed as a source of the interpretation of Canadian law”, then the preamble goes on to use even weaker wording to the effect that the declaration has “application in Canadian law”.
Summary of Federal UNDRIP Bill C-15 Sections 1-7:
Bill C-15’s reference to section 35(1) of the Constitution Act, 1982 contradicts the preamble and reaffirms Canadian law foundations are based on the colonial Doctrine of Discovery:
Canada is relying on the current legal framework applicable to section 35 of the Constitution Act, 1982 to implement UNDRIP in Canadian law. This is a fatal flaw in Bill C-15, subsection 2(2) Rights of Indigenous Peoples of the Bill states that:
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and not as abrogating or derogating from them
The wording of section 2(2) of Bill C-15 completely domesticates the UNDRIP commitments within the borders and confines of the Canadian common law. This is very similar to the accomplishment made of the 2017 effort to have the Trudeau government’s “10 Principles for Indigenous Relationships” act as a proxy for the UNDRIP, with the federal “10 Principles” simply being a restatement of the Canadian common law limitations of section 35 rights. To be clear, First Nations should not support this legislative bill as it subjugates UNDRIP rights to the common law interpretation of section 35(1) of the Constitution Act, 1982 which is heavily based on the colonial Doctrine of Discovery.
In fact, the federal ‘Inherent Right’ Policy states “The inherent right of self-government does not include a right of sovereignty in the international law sense…implementation of self-government should enhance the participation of Aboriginal peoples in the Canadian federation [as fourth level “Indigenous governments”]”. [emphasis added]
Section 35(1) of the Constitution Act, 1982 must be interpreted in accordance with UNDRIP and not the other way around.
The promise of UNDRIP includes the repudiation of the Doctrine of Discovery. In fact, the repudiation of the Doctrine of Discovery is specifically cited in the text of UNDRIP, in addition to the Royal Commission on Aboriginal Peoples recommendations and the Truth and Reconciliation Commission’s calls to action.
It is not possible to implement UNDRIP and respect the recommendations of the Royal Commission and Truth and Reconciliation Commission’s calls to action by subjugating UNDRIP rights to the current legal framework associated with section 35 of the Constitution Act, 1982. It is dishonest for the preamble of Bill C-15 to pretend it is rejecting the colonial Doctrine of Discovery and that there is harmony and consistency with Bill C-15 subjugating UNDRIP rights to the current legal framework associated with section 35 of the Constitution Act, 1982, which reaffirms the supremacy of the colonial Doctrine of Discovery.
Indigenous Peoples in international human rights law are not “Aboriginal peoples of Canada”
Another fatal flaw of Bill C-15 is the wording of subsection 2(1) Definitions – Indigenous Peoples
Subsection 2(1) of the legislative proposal states that:
In this Act, Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.
The term “Aboriginal peoples of Canada” in section 35 of the Constitution Act, 1982 will be interpreted by the Supreme Court of Canada very soon in the Desautel case2. It is currently unknown how this term will be interpreted. One of the issues that was central to this appeal was the debate around the “source” of Aboriginal rights and how this informs who can hold Aboriginal rights within the borders of present-day Canada. If the Supreme Court of Canada defines section 35(1), Constitution Act, 1982 rights holders as being limited to Indigenous peoples within or connected to present day Canada- how could Canada then respect its obligations under section 36 (Indigenous peoples divided by international borders) of UNDRIP that would be subject to this restrictive definition? The incoherence of subjecting UNDRIP rights to Canadian law interpretations of associated with section 35 of the Constitution Act, 1982 would once again be demonstrated.
UNDRIP reflects the Inherent human rights of Indigenous Peoples, it would be inappropriate to define rights holders based on a reference to section 35 of the Constitution Act, 1982 that is separate from international human rights law.
Bill C-15 does not actually implement UNDRIP
The substantive provisions of what Bill C-15 actually does is outlined in Sections 4, 5 and 6. The wording of section 4 b) Purpose of Act (in part)
(b) provide a framework for the Government of Canada’s implementation of the Declaration.
This wording confirms very clearly that the legislation’s purpose is not to implement UNDRIP, but rather to provide a framework for this to occur progressively through other means outlined in the legislation.
The government of Canada already has a section 35 domestic law “National Reconciliation Framework” for discussions and negotiations with Indigenous Peoples and Nations (Recognition Tables, Modern Treaty Tables, Self-Government Tables & federal laws creating National Fiscal & Land Institutions and there is a federal plan for a National Infrastructure Institute) that will be used as an UNDRIP “Framework” for “implementation of the Declaration” if Bill C-15 becomes law.
2 https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=38734
The wording of section 5 Measures for Consistency of Laws and Achieving the Objectives of the Declaration (in part)
The Government of Canada, in consultation and cooperation with Indigenous peoples, must take all measures necessary to ensure that the laws of Canada are consistent with the Declaration
The difficulty remains that even if this section of the legislative proposal could ground an action by Indigenous Peoples and Nations against the government of Canada for failing to take administrative steps to ensure that the laws of Canada are consistent with UNDRIP, there could only be procedural remedies available. A court could not “order” the government of Canada to adopt legislation that conforms to UNDRIP based on this section, nor could it invalidate a federal law for being inconsistent with UNDRIP based on this section. Again, the “aspirational” nature of UNDRIP is reinforced by this legislation, with at most, limited procedural remedies available to Indigenous Peoples and Nations.
Wording of section 6 Action-Plan (in part)
6 (1) The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.
This section of the Bill C-15 gives the government of Canada a dominant role in interpreting UNDRIP “principles” in relation to federal laws, since under Canada’s constitutional division of federal and provincial powers, the provincial governments have a veto in subject areas that may affect their jurisdiction.
Moreover, the reference to “consultation and cooperation with the Indigenous peoples of Canada” has meant for the past five years that the Trudeau government uses the three National Indigenous Organizations and three National Leaders, though what is called “Bilateral Mechanisms”, which means three federal-Indigenous Cabinet Sub-Committees, where the federal government controls the funding, pen and agenda.
Wording of section 7 Annual Report to Parliament (in part)
7 (1) Within 90 days after the end of each fiscal year, the Minister must, in consultation and cooperation with Indigenous peoples, prepare a report for the previous fiscal year on the measures taken under section 5 and the preparation and implementation of the action plan referred to in section 6.
As in B.C. with Bill 41 DRIPA, This section of Bill C-15 provides that the government of Canada will control the pen as to the content of the report to Parliament on the federal measures taken to “prepare and implement an action plan to achieve the objectives of the Declaration.”
Conflicts with land defenders and water protectors will likely not be included in Reports to Parliament, as was the case with the B.C. Bill 41 DRIPA 2019/2020 Report to the B.C. Legislature, which excluded any mention of the violation of UNDRIP Article 10 regarding forced removal of Indigenous Peoples from their territories, as RCMP invaded and forcibly removed the Wet’suwet’en Hereditary Chiefs from their own territory in 2019 and 2020.
Conclusion:
If Bill C-15 becomes law all 46 Articles of the UN Declaration will be interpreted and implemented through the colonial Canadian constitutional framework, instead of respecting international law regarding the rights of Indigenous Peoples and the Bill will reinforce the status quo and Canada has made it clear that they want national laws—many of which violate Indigenous rights—to prevail over UNDRIP.
As noted above, the main sections of Bill C-15, particularly section 2, maintain the common law interpretation of section 35(1) and section 35(2) of the Constitution Act, 1982, which is heavily based on the colonial Doctrine of Discovery.
The application of this doctrine has resulted in a number of problems in legal interpretations in case law based on section 35 of the Constitution Act, 1982, which negatively impact in daily life, on the ground for Indigenous Peoples and Nations in Canada including:
• The imposition of Crown sovereignty over Indigenous peoples, including self-government rights.
• Disregarding Indigenous laws and legal traditions.
• Establishing that the Crown has “ultimate title” to land.
• The burden of proof imposed on Indigenous Peoples and Nations to establish their rights in Canadian courts.
• The racist and “frozen in time” “Van der Peet test” for establishing Aboriginal rights.
• The ability for the Crown to infringe Aboriginal rights based on the “Sparrow test”.
• The erosion of the duty to consult and accommodate to nothing more than a procedural right that is reviewable based on administrative law principles.
RECOMMENDATION: Based on our analysis we are strongly recommending Indigenous Peoples and Nations reject Bill C-15 and take action to stop Parliament from Passing it! Because it’s obvious AFN and many of our Leaders won’t!
#LANDBACK!
As families, communities and Nations we need to exercise our international right of self-determination and take back decision-making from Indian Act Band Councils and Chiefs’ Organizations to develop our own Self- Determination Plans from the ground up, using information we collect from our own research, mapping and planning to restore our cultures, societies and Nationhood and to expand our juridisction over our Indigenous traditional territories and challenge federal, provincial and municipal governments who have illegally or improperly encroached on our Indigenous territories!
Communications Contact: Tori Cress at E-Mail: info@IdleNoMore.ca Sylvia McAdam, Idle No More Organizer, Cell: (306) 281-8158
Kanahus Manuel, Defenders of the Land, Spokesperson, Cell: (250) 852-3924
Russ Diabo, Spokesperson, Truth Before Reconciliation Campaign Cell: (613) 296-0110 Rachel Snow, Spokesperson, Truth Before Reconciliation Campaign Cell: (403) 703-8464
- This document is issued by the Coordinating Group of the Idle No More, Defenders of the Land and Truth Campaign Networks.10
10 Defenders of the Land is a network of Indigenous communities and activists in land struggle across Canada, including Elders and youth, women and men, dedicated to building a fundamental movement for Indigenous rights, was founded at a historic meeting in Winnipeg from November 12-14, 2008. Idle No More was founded by four women (three of whom are Indigenous and one of whom is White) in November 2012 in response to several bills passed in Canada that undermine Indigenous rights and environmental protection. The movement grew quickly, and by January 2013 there were tens of thousands of Indigenous and non-Indigenous people taking part in locally-based actions and mass mobilizations around the world. The Truth Campaign is a core team of people who are part of an advocacy and public education campaign to get Crown governments and Canadian society to address “Truth Before Reconciliation” because the Truth and Reconciliation Commission and its Calls to Action are not sufficient to address the colonization that First Nations have historically experienced and which continues today particularly under the colonial policies and legislation passed under the Constitution Act 1867 and the Constitution Act 1982.
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