Federal Bill to adopt UNDRIP is useless, dangerous, and divisive

OTTAWA: The Justice Centre has submitted a report to the House of Commons’ Standing Committee on Indigenous and Northern Affairs, entitled “Bill C-15: Useless, dangerous, and divisive.”

Bill C-15 proposes to adopt the United Nations Declaration on the Rights of Indigenous Peoples. According to the Government, the purpose of this Bill is to affirm the Declaration as a universal international human rights instrument with application in Canadian law and provide a framework for the Government of Canada to put the Declaration in place. Once passed by Parliament, this legislation would require the Government of Canada to “to take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”

UNDRIP essentially provides that Indigenous people, among other things, own the land and resources, have the right to self-government and to their own distinct political, legal, economic, social and cultural institutions and educational systems, and that the federal government shall foot the bill. The declaration provides in part:

Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired…to own, use, develop and control … to redress…restitution…compensation…to have access to financial and technical assistance…to autonomy or self-government…as well as ways and means for financing their autonomous functions…to establish and control their educational systems…States shall take effective measures [to provide for all of the above].

The Justice Centre’s Report, written by a Director of the Board, law professor Bruce Pardy, sets out several grounds as to why the adoption of UNDRIP is dangerous.

1. Aboriginal law applies different rules to different people based on race, lineage, and culture. That’s a problem that Bill C-15 makes worse.

Part of the Justice Centre’s mandate is to support the principle of equality before and under the law – namely that each Canadian must be treated equally under the law regardless of race, gender, colour, ethnicity, religion, disability, or other characteristics, without privilege, discrimination or bias. The idea that “Justice is blind” is a longstanding and hard-won principle in Anglo-American law. UNDRIP and C-15 are based upon the opposite premise – that there are different rules for people who are of Indigenous descent.

2. The existing “duty to consult” is paternalistic, incomprehensible, and unpredictable. Bill C-15 threatens to make this situation worse. Bill C-15 and UNDRIP represent an existential threat to Canada’s resource industry.

The duty to consult Indigenous communities has become a threat to the Canadian economy. What does a government have to do, exactly, to satisfy the duty to consult? The term is undefined and unclear. The courts seem unable to set out any parameters or guidelines, except after the fact.

3. Indigenous persons are not permitted to own Aboriginal property. Neither Bill C-15 nor UNDRIP will change that.

These documents treat the concept of Aboriginal land rights as collective rights over which individual Aboriginal people have no say, control, or personal interest.

Normally, individual property owners can accumulate equity in the property, care for and improve it to enhance its value, utilize it as collateral to secure loans at attractive interest rates, and sell it to the highest bidder in the open market. The system of landholding on reserves remains an anachronistic obstacle to the prosperity of individual Indigenous people who live on them.

4. Bill C-15 will not reduce Indigenous dependency on the federal government.

Genuine self-government requires genuine self-sufficiency. Self-sufficient means self-funded. If Indigenous communities are dependent, they cannot be independent. “Self-government” is a fiction while taxpayers are footing the bill.

5. UNDRIP prescribes vast and broad collective land rights for Aboriginal people but no property rights for anyone else. Bill C-15 threatens to divide rather than reconcile.

The Canadian Constitution does not protect individual property rights. UNDRIP, on the other hand, provides that Aboriginal people “have the right [to own, use, develop and control] … the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Non-Aboriginal Canadians will rightfully wonder if the government may expropriate their land in the name of complying with UNDRIP’s directives and Bill C-15’s requirements.

6. Bill C-15 effectively grants UNDRIP quasi-constitutional status. It will become a standard to which the laws of Canada are to conform.

On its own, UNDRIP is nothing more than a resolution of the UN General Assembly, and as such is not formally binding in international law nor directly enforceable in domestic courts.

Yet Bill C-15 will give UNDRIP quasi-constitutional status in Canada by requiring the federal government to make the laws of Canada consistent with it. In effect, while Bill C-15 is in force, the laws of Canada will be expected to conform to the declaration of the UN, an international body not democratically accountable to the people of Canada.

7. The intended consequences of Bill 41 in British Columbia foretell what Bill C-15 might mean for Canadians across the country.

Although it is couched in the language of self-determination and self-government, its proponents mean to render the country unrecognizable. In British Columbia, Bill 41: Declaration of the Rights of Indigenous Peoples Act, was passed in November 2019. One month before, the 17th Aboriginal Law Conference, sponsored by BC Continuing Legal Education, laid bare the agenda. Bill 41 was explained as a means to move away from the Westminster model of governance.

At the conference, one of the contributors to UNDRIP had this to say of Bill 41:

  • “We’re not talking small changes; we’re talking big changes, and I don’t know if the BC government recognizes that, but we sure do”;
  • “The government gave us money, but it’s not enough money”;
  • “Compensation for sacred sites, for lands taken, for relocation…it’s going to be overwhelming at the number of compensation claims that there will be and so I’m hoping that the Province is ready for that”; and
  • “Life [in British Columbia] can and will change”.

Bill C-15 has been heralded as the means to build a better future for Indigenous people in Canada, and an important step towards reconciliation, but it is neither,” states Justice Centre Director of the Board, Professor Bruce Pardy. “Instead, Bill C-15 and UNDRIP itself are based upon mistakes and myths. They will be an obstacle to the prosperity of ordinary Indigenous men, women, and children. Bill C-15 is useless, dangerous, and divisive.”

“All Canadians, regardless of heritage and descent, should be treated equally under the law,” adds Professor Pardy.

The Justice Centre is urging the House of Commons Standing Committee on Indigenous and Northern Affairs to reflect on the consequences of a declaration dedicated to wreaking havoc on Canada’s economy and legal system before recommending that Bill C-15 be unleashed on the country.

Due to restrictive word limits by the federal Committee, a longer version of the submission was rejected.