Canada and the United Nations Declaration on the Rights of Indigenous Peoples

This essay briefly examines the historical processes involved in the creation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It explores the reasons why Canada, a nation usually in the forefront on human rights issues, voted against the adoption of the Declaration during the 2007 UN General Assembly vote; and further explores objections to the Canadian government’s position from international organizations, academics, and indigenous groups within Canada. This essay concludes that the government must be honest about their stance on UNDRIP, and engage in an open debate with critics.

On September 13, 2007, the UN General Assembly voted overwhelmingly in favour of the United Nations Declaration on the Rights of Indigenous Peoples (UNPFII 2006). UNDRIP was a declaration with two decades of hard work behind it. The first draft of UNDRIP was created by the Working Group of Indigenous Populations (WGIP) (Office of the United Nations High Commissioner for Human Rights 2008). Established in 1982, WGIP had the specific mandate of advancing “the promotion and protection of the human rights and fundamental freedoms of indigenous populations” (Ibid). WGIP submitted the first draft of the Declaration to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which approved it in 1993 (Sub-Commission on the Prevention of Discrimination of Minorites1993).Next, the draft was sent to the UN Commission on Human Rights (UNPFII 2006). However, here the process stalled once again, as several countries had qualms with major clauses of the draft. States were most concerned about three articles that stressed indigenous peoples’ right to self-determination (Office of the United Nations High Commissioner for the Human Rights 2008)1.

As the conflict over the Declaration’s wording continued, an inter-sessional working group was created in 1995 to generate a declaration that could be accepted by the General Assembly (Ibid). The goal of this new working group was to have the Declaration adopted by the end of the International Decade of the World’s Indigenous People, in 2004 (UNPFII 2006). However, as the years passed and no resolution was forged, the goal date was extended to 2015, the end of the aptly named Second International Decade of the World’s Indigenous Peoples (Ibid). Progress quickened, and in 2006 the UN Human Rights Council adopted the Declaration (UN Human Rights Council). Finally, the Declaration was sent to the General Assembly, which adopted it by a landslide, with 144 votes in favour and only 4 against.

However, Canada was one of the four nations who voted against the Declaration (UNPFII 2006).2 Given that the Declaration is not even legally binding, opposition to it constituted an exceptionally symbolic move for the Canadian government.According to Liberal MP Anita Neville, the reason the Canadian government cited for their nay vote was that it went “against the Constitution of Canada” (Fiddler 2008). An article on the government’s Indian and Northern Affairs website claims that the Declaration contradicts and threatens to undermine both the Canadian Constitution Act and the Canadian Charter of Rights and Freedoms (Indian and Northern Affairs Canada 2008).The Canadian Constitution Act recognizes and imparts the rights of Indigenous persons and their treaty rights; the Canadian Charter of Rights and Freedoms guarantees rights and freedoms to all persons in Canada, both indigenous and non-indigenous (Department of Justice Canada 1982). According to Indian and Northern Affairs Canada, interpretations of the Declaration could support rights that are not established under the Constitution, and could also interfere with the balance of individual rights and public interest outlined in the Charter (Indian and Northern Affairs Canada 2008). (Ibid). In particular, the government expresses discomfort with the wording of Article 46, which it believes provides a more rigid balance of individual and collective rights than the Charter of Rights and Freedoms (Ibid).3