TORONTO -- The proposed Bill C-15, which harmonizes the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP) into Canadian law, has been trumpeted by the Liberal government as a significant step forward on the path to reconciliation, one developed in consultation with First Nations, Inuit and Metis leaders.
But among the many Indigenous rights holders in Canada – there are more than 600 First Nations, for example – there are many who see Bill C-15 as a flawed instrument born of a limited consultation progress.
To be sure, there is also considerable support for the bill, which the government drafted with input from the Assembly of First Nations (AFN), as well as Inuit Tapiriit Kanatami, and the Métis National Council.
However, some critics say the development process for C-15 was flawed from the start and did not adequately take into account the views of many Indigenous rights holders.
“There were no meaningful consultations that took place with First Nations people, with rights holders, and from that there hasn't been the opportunity to be able to share some of (our) objections,” Stacia Loft, Deputy Grand Chief at the Association of Iroquois and Allied Indians, told CTVnews.ca in an interview.
“The AFN for instance. The AFN is not a rights holder, it's a lobby group. It’s an advocacy organization, and there wasn’t the opportunity for this nation-to-nation relationship to take place.”
Currently being pre-studied by Senate Standing Committee on Aboriginal Peoples as it’s set to pass the House of Commons imminently, the bill represents the third attempt to enshrine UNDRIP into law, and the Liberal government is hoping to get it passed before the summer parliamentary shutdown, particularly with uncertainty over when Canadians will next go to the polls.
The UN General Assembly adopted UNDRIP in 2007, to establish “a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world” through 46 articles. While Bill C-15 won’t directly make the articles law, it would establish a framework for their implementation.
However, Loft says that while UNDRIP has a solid foundation that many nations accept, she and others say C-15 ‘Canadianizes’ the declaration by saying it “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.”
Section 35, which covers the recognition of existing treaty rights of Aboriginal peoples, has been the subject of court disputes over its interpretation.
“Section 35 in many ways hasn't solved any problems in terms of rights recognition, it's just created more of a litigious process,” said Loft.
Jason Rasevych, president of the Anishnawbe Business Professional Association, would also have liked to have seen a more extensive consultation process for Bill C-15. However, he called the bill a “legitimate” effort to implement UNDRIP.
“If it's well-crafted and executed Bill C-15 has the potential to improve socioeconomic outcomes for Indigenous people and all Canadians,” he told CTVnews.ca in an interview.
For him, whether this happens depends on how the government develops a detailed plan for enshrining individual articles of UNDRIP into law.
“From what I'm hearing from the elders and Indigenous leaders as well, there's going to need to be more community engagement on that action plan and how it's going to be resourced for implementation and that will be a true condition and a measure for success moving forward,” he said.
This includes clarity on the meaning and application of “free, prior and informed consent,” which is present in six of the UNDRIP articles and has been the subject of much public debate, particularly as it applies to government approvals of development projects on Indigenous lands. He said the action plan will need to take into account the varying governance structures of different First Nations.
“In certain areas there's the hereditary chief, there's the First Nation elected Chiefs and then some communities have class structures. Some of them have other governance models, so there isn't a cookie cutter approach to how ‘free, prior and informed consent’ is going to be obtained,” he said.
Clarity on the consent clause is also a concern for Arnie Bellis, chairman of the Indigenous Resources Network (IRN), who worries that it will put a chill on resource investment at a time many nations are trying to be more engaged in resource extraction in their territories.
“This bill, like others before it, just makes it harder to attract investment for their projects in Canada because of the uncertainty. It isn’t clear what the bill means in practice, and that means at the end of the day a court will have to decide,” he said in an email.
“The government, I think, has deliberately made the bill ambiguous so as not to offend any of its supporters. But that will cause problems down the road,” he said.
While some are worried that the bill will pass with significant flaws, or perhaps not pass at all, others say C-15 is an inherently flawed approach to reconciliation and a product of Canada’s failure to live up to treaty obligations.
“We like the articles in the United Nations declaration,” Treaty 8 First Nations of Alberta Grand Chief Arthur Noskey said in an interview. Treaty 8 is the largest of the 11 treaty areas, which together amount to more than half of Canada. “But we do not believe (C-15) accomplishes the goals of UNDRIP.”
Instead, Canada should be engaging on a nation-to-nation basis, he said.
“Everybody knows that these treaties are in place -- there's s years and years of administrating programs right? -- so why does Canada need their own C-15 to be able to start implementing this?” he said.
The Senate Standing Committee on Aboriginal Peoples continues to study the legislation, and there is the potential for amendments to be made while in the Senate. If changes are made, it would have to be sent back to the House of Commons.
However, Loft says the government should go back to the drawing board and implement a process of more meaningful engagement with nations and rights holders.
Bellis acknowledged that the COVID-19 pandemic likely made the consultation process more challenging, but he also echoed others in noting that, while C-15 may represent a significant gesture, getting it wrong would represent a missed opportunity.
“Canada needs to do more to recognize Indigenous rights. But if it implements UNDRIP poorly we will be the ones that lose. We will be in the ones to suffer the unintended consequences. So they better take the time to get it right,” he said. “We don’t need any more symbolic gestures.”
