By Gary Mar and Colleen Collins
Published in the Calgary Herald

September 19, 2020

When Parliament reconvenes in later this month with a throne speech, many Indigenous Canadians and those who work with them will look for clarity on reconciliation. Last year, Bill 262, a private member’s bill, sought to harmonize Canadian law with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had the support of the NDP and Liberal government, but it died on the order paper when the parliamentary session ended, because it was clear that it created more problems than it solved. Uncertainty created by word for word adoption of UNDRIP, without adaptation for the Canadian context, would undermine existing progress made by the resource sector and Indigenous nations on economic reconciliation.

Indigenous nations and industry have made progress: creating prosperity, building First Nations consultation into the design of projects and creating opportunities for First Nations to participate in ownership of developments. For example, Enbridge Line 3 Replacement provided more than $450 million for Indigenous nations and groups and 20 per cent of the workforce was Indigenous. In 2019, Suncor spent $836 million with Indigenous suppliers. And there are several proposals for Indigenous ownership in the Coastal Gas, Trans Mountain and Eagle Spirit pipelines. This progress is good for everyone involved and for all Canadians. Is there room for further progress? Absolutely. Is there room for additional uncertainty? Absolutely not.

Investments that would have created economic opportunities in communities have already been cancelled or delayed due to uncertainty created by federal actions like the Impact Assessment Act (Bill C-69), Oil Tanker Moratorium Act (Bill C-48) as well as implementation of the UN declaration.

There is no disagreement on the aspirations of the declaration. However, the objections to the declaration as “overly broad, unclear and capable of a wide variety of interpretations” expressed by Canada’s UN ambassador to the General Assembly in 2007 have proven prophetic. Canada has since endorsed the declaration with an intention to implement it “in accordance with the Canadian Constitution … as a way to breathe life into Section 35” (Carolyn Bennett, Canada’s Indigenous and northern affairs minister, May 10, 2016, UN Permanent Forum on Indigenous Issues).

But here we are in 2020. The meaning of the declaration is still unclear and open to a wide variety of interpretations. Meanwhile, our judicial system, in the years since the declaration was first introduced, has provided life and meaning to Section 35 in the Charter of Rights and Freedoms, the Rights of Aboriginal Peoples of Canada. We can’t afford to lose that “Made in Canada” clarity.

Canada has been down this road before. The precedents should be instructive.

The Universal Declaration on Human Rights was adopted at the General Assembly in 1948. Canadians were proud in 1960 when Parliament adopted the Canadian Bill of Rights, and again in 1982, when the Charter of Rights and Freedoms became part of our newly repatriated constitution. But why did it take so long?

Canada had substantial input into the drafting of the Universal Declaration (unlike UNDRIP), but there were concerns about the compatibility of the Universal Declaration with Canada’s system of government. Even after the Bill of Rights was adopted, it became clear that it failed to account for the federal nature of Canada and its existing legal and political systems. The bill was cited in 35 cases between 1960 and 1982 — 30 were rejected in court. The inclusion of the Charter of Rights in the 1982 Constitution further Canadianized the Universal Declaration.

The aspirations of the Universal Declaration of Human Rights needed to be adapted to the Canadian context. It is no different for the Declaration on Indigenous Rights.

Bill 262 failed to recognize the need to adapt the declaration to the Canadian context — the role of provinces and territories, the existence of numbered treaties and negotiation of modern treaties, existing processes to self-determination and importantly, the existence of Section 35 and surrounding jurisprudence.

The lack of clarity of the declaration itself and how it will be implemented in Canada produces uncertainty. The glaring example is the inclusion of “Free, Prior and Informed Consent” (or FPIC). Do Indigenous Peoples have a veto over projects like pipelines? Opposing legal opinions exist. Supreme Court judgments have clarified that under the Constitution there is a duty to consult but no right of veto in most situations. If we are not careful, we will send projects and First Nations back to Square 1 with years of delay and further court challenges.

Although “Free, Prior and Informed Consent” has received the most attention, it’s not the only problem. Other sections on language and education rights also need to be Canadianized in order to do more good than harm.

Going forward there are two pathways:

Ongoing court challenges, uncertainty and frustration of economic and social ambitions of First Nations if we legislate the UN declaration as written.

Or, we agree now that for Canada to achieve the aspirations of the UN declaration, we need to Canadianize it. Let’s start with a reference to the Supreme Court to clarify whether or not FPIC is consistent with Section 35. Real economic reconciliation depends on it.

Colleen Collins is the vice-president and Gary Mar is the president and CEO at the Canada West Foundation.