Dear Senate of Canada: Time to Pass Bill C-262 and stand up for the human rights of Indigenous peoples

February 26, 2019

Last May 2018, Bill C-262, (United Nations Declaration on the Rights of Indigenous Peoples Act) was passed by the House of Commons. 

Significantly, this was achieved with the non-partisan support of NDP, Liberal, Green, and Bloc Québeçois MPs.  The Bill’s sponsor in the House was NDP MP Romeo Saganash (Abitibi—Baie-James—Nunavik—Eeyou).  The Bill also is supported by the Assembly of First Nations, a  broad swath of Indigenous peoples organizations across the country as well as Canadian faith based groups and Canadian human rights advocates and organizations (see for example joint statement of the Coalition on the Human Rights of Indigenous Peoples).  Other supporters include  the Indigenous Bar Association.

The Bill is now in the Senate at second reading, sponsored by Senator Murray Sinclair, a former Commissioner of the Truth and Reconciliation Commission of Canada.  

The core issue being debated (the principle of the Bill) is the need for Canada to take steps to develop a plan for implementing the Declaration in an orderly way. Canada is now many years overdue to develop a national action plan to implement the Declaration as called for by a 2014 UN General Assembly Resolution (A/RES/69/159 Rights of indigenous peoples (18 December 2014). 

The UN Declaration has not been imposed on Canada (much less imposed from the "outside" as some may suggest).  The Canadian government, Indigenous peoples and human rights advocates from Canada worked to develop it for more than two decades and a half with other nations and peoples.  Its adoption in 2007 was hardly a surprise.  Its provisions are firmly grounded in existing human rights principles - notably the equality of all individuals and the equality of all peoples and their equal right to all human rights.  

Parliamentary debate on Bill C-262 is not a debate about the UN Declaration on the Rights of Indigenous Peoples itself.  Canada is part of the global consensus that has reaffirmed it ten times since its adoption in 2007 by the UN General Assembly (my thanks to Paul Joffe for this number).  A few of these resolutions are listed below:

The Declaration is now a fixture of the international human rights system and is regularly used to assess Canada’s human rights performance.  The next step is an orderly plan for its implementation.  

Canada is consistently called out for falling short on implementing the UN Declaration, and for not having a national action plan for implementation.   

Senators should note that the Declaration is used every year by various UN and regional human rights bodies to judge Canada’s human rights record.  Here are just a few examples.

• By Resolution, the United Nations Human Rights Council has asked the High Commissioner for Human Rights to submit an annual report on the rights of Indigenous peoples containing information on relevant developments in human rights bodies and mechanisms; and on activities that promote respect for and the full application of the provisions of the United Nations Declaration on the Rights of Indigenous Peoples, and to the follow-up on the effectiveness of the Declaration.
• Under the Universal Periodic Review (UPR) procedure, the UN Human Rights Council reviews the human rights records of all UN member States and Canada has received many recommendations under that process respecting the standards of the UN Declaration.  The criteria for assessment include binding human rights treaties, many of which are relevant to the situation of Indigenous peoples and aspects of which have been incorporated into the UNDRIP – the right to self-determination, the obligation of States to eliminate racist policies and laws, gender equality and many others. The UPR process includes among its criteria: Voluntary pledges and commitments that Canada has made.
• In April 2018 at the UN Permanent Forum on Indigenous Issues, the EU delegation announced that in May 2017 for the first time in 15 years, the European Union adopted Council Conclusions on Indigenous Peoples which are fully in line with the UNDRIP and the Outcome Document on the World Conference of Indigenous Peoples. 
• Senators should also note that the EU Action Plan on Human Rights and Democracy (2015–2019)  requires EU policy to develop in line with the UN Declaration on the Rights of Indigenous Peoples and the Outcome document of the 2014 World Conference on Indigenous Peoples.  The EU conducts country assessments of human rights situations around the world including Canada each year and employs the UN Declaration on the Rights of Indigenous Peoples in carrying out such assessments which are reported back to all EU member states.
• In 2012, the Committee on the Elimination of Racial Discrimination (CERD) noted with appreciation the endorsement by Canada of the United Nations Declaration on the Rights of Indigenous Peoples.
• CERD then expressed several concerns respecting implementation.  It requested that Canada in consultation with indigenous peoples, consider elaborating and adopting a national plan of action in order to implement the United Nations Declaration on the rights of indigenous peoples. (para 19 of 2012 CERD Concluding Observations on Canada, CERD/C/CAN/CO/19-20).
• CERD expressed concern that “the right to prior, free and informed consent which is referred to as an “international standard” to projects and initiatives concerning Aboriginal peoples, are not fully applied by the State party, and may be subject to limitations”.
• CERD also reminded Canada of the Committee’s 1997 General Recommendation on free, prior and informed consent (para 20).
• In 2017, CERD again reviewed Canada’s performance under the Convention on the Elimination of Racial Discrimination.  It welcomed Canada’s commitment to implement all of the Truth and Reconciliation Commission’s (TRC) 94 Calls to Action, but stated it is concerned at the lack of an action plan and full implementation; and “The Committee is further concerned that the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) Action Plan has not yet been adopted” (para 17, Concluding observations on the twenty-first to twenty-third periodic reports of Canada, CERD/C/CAN/CO/21-23).
• In this 2017 assessment, CERD went on to recommend that Canada (para 18) develop a concrete action plan to implement the TRC’s 94 Calls to Action in consultation with Indigenous Peoples; and to implement the Declaration and adopt a legislative framework to implement the Convention including a national action plan, reform of national laws, policies and regulations to bring them into compliance with the Declaration (as well as annual public reporting).  These are all objectives of Bill C-262.  It is also worth noting that CERD again expressed concerns that Canada was not meeting the free, prior and informed consent standard and reminded Canada of CERD's 1997 General Recommendation on this point.

It would not be in Canada’s interest to hope international law and the international human rights system will simply go away on the question of Indigenous peoples’ human rights.  That system affirms important rights intended to prevent the repetition of the long pattern of human rights violations against Indigenous peoples in Canada and elsewhere.  As Senator Murray Sinclair stated in his address on second reading: "The days of states being able to simply disregard international standards without repercussion are long gone."

The days of putting our collective head in the sand and ignoring the realities of Indigenous peoples rights under Canadian law and under international human rights law are over.  We all know where a strategy of rights denial leads – to more litigation that Canada typically loses and to more international embarrassment.

To debate the merits of the UN Declaration all over again is very much a case of "train left station"/"horse bolted barn".  We will not delay or prevent the judgement of the global community on our performance in meeting minimum human rights standards that are now a fixture of the human rights system.

It is time to pass Bill C-262 and, in cooperation with Indigenous peoples, get on with the planning required to bring Canada into compliance with the Declaration in an orderly way.