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

On September 12, 2007, the day before the General Assembly voted on UNDRIP, the Minister of Foreign Affairs and the Minister of Indian Affairs issued a joint statement explaining the government’s stance in more detail. They noted that while Canada supported the “spirit and intent” of the Declaration, it would nevertheless vote against it, not only because it was “incompatible with Canada’s constitutional framework” but also because it was incompatible with the Canadian government’s “need to balance indigenous rights to lands and resources with the rights of others” (Ibid, Strahl and Bernier 2007). The two ministers pointed to Article 26 as a stumbling block, noting that it could be used by indigenous groups to “re-open historic and present-day treaties” which the government of Canada feels have already been adequately addressed (Ibid).4 The Canadian government evidently felt that accepting the Declaration would have changed the reconciliation process between indigenous and non-indigenous persons in a negative way.

A fact sheet on the Indian and Northern Affairs website further explains that the government’s major concerns are with the Declaration’s articles on “lands, territories and resources; free, prior and informed consent; self-government, military issues, intellectual property and the need to achieve an appropriate balance between the rights and obligation of Indigenous peoples, States and third parties” (Indian and Northern Affairs Canada 2008). The statement notes, for instance, that Article 19 could be interpreted to mean that Canada’s government could not act on general policy matters that affect not only indigenous peoples, but also non-indigenous peoples, because of the need to obtain “free, prior and informed consent” on any measures that might affect them (Strahl and Bernier 2007).5 Clearly, the Canadian government believes that by accepting the rights the Declaration grants to indigenous persons, the rights of non-indigenous persons within Canada might be compromised in some cases.

Objections to the Canadian government’s position on the Declaration have been swift, widespread, and compelling. Indigenous groups within Canada have responded with outrage. Following Canada’s vote against UNDRIP, Phil Fontaine, the National Chief of the Assembly of First Nations, called the government’s decision “a stain on the country’s reputation” and a waste of over “20 years of consultations with Indigenous persons around the world” (Assembly of First Nations 2008). The National Chief noted that it was the Assembly of First Nations’ belief that the most effective way to address the daunting poverty problems facing indigenous peoples in Canada was to allow First Nations people more rights and responsibilities concerning their land and territories, which UNDRIP clearly established (UN Department of Public Information 2006). In a similarly disconcerted statement, the Indigenous Caucus noted that Canada’s stance on the Declaration sent the message that “indigenous peoples were not equal to all other peoples” (UN Department of Public Information 2006). Indigenous groups within the Canadian government were also dismayed. Several groups, such as Parliament’s Standing Committee of Aboriginal Affairs and Northern Development, sent recommendations urging the government to vote for the Declaration prior to the vote in the General Assembly (Indigenous Peoples Caucus).

International organizations have also criticized the Canadian government for refusing to recognize and accept UNDRIP once it passed in the UN General Assembly. In a UN press conference, the spokesperson acting on behalf of numerous organizations under the International Service for Human Rights remarked that in the case of Canada, “domestic political agendas had taken precedence over the protection of human rights” (UN Department of Public Information 2006). The Canadian government also received pressure from the United Nations itself, when Louise Arbour, the UN High Commissioner for Human Rights expressed “profound disappointment” in Canada’s stance (Ibid).6 Another highly respected international organization, Amnesty International, issued a statement noting that Canada had never before refused to accept the terms of any human rights documents the General Assembly adoptedand accompanied its statement with an open letter signed by Canadian experts, including lawyers and scholars, that claimed UNDRIP was consistent with the Canadian Constitution Act and the Canadian Charter of Rights and Freedoms (Amnesty International 2008).

Other scholars and academics also voiced great concern over Canada’s decision to vote against and refuse to uphold the Declaration. A writer for the Chicago Journal of International Law stated that the Declaration is necessary because it includes rights which are “unique to indigenous populations, which have often gone overlooked by national governments and international organizations” (Prasad 2008). Erica-Irene Daes, a human rights expert and Chairperson of WGIP, claimed that the Declaration must be adhered to “for the benefit of the states, indigenous peoples and the global community as a whole” (2008). Finally, in a rigorous case study comparing national and international protection of indigenous rights, Dr. Keri Smith, author of The State and Indigenous Movements,notes that indigenous groups across the globe advocating for rights would be no better off under Canadian laws than under their own nations’ laws (Smith 2008).7

Academics have also closely examined the wording of the Declaration itself and concluded that the Canadian government’s reasons for voting against the Declaration are unfounded. In an article exploring the legal rights granted to indigenous persons under UNDRIP, research professor Timo Koivurova concludes that the Declaration has been developed to a point where no country should feel threatened by articles on self-determination and the balance of indigenous and non-indigenous rights (2008). The author claims, for instance, that the articles on self-determination have been amended so that they can point only to internal self-determination, and thereby have little to no effect on the country as a whole (Ibid). Furthermore, Siegfried Wiessner, a professor in law specializing in intercultural human rights, notes that the sole even semi-serious claim by an indigenous group for secession in Canada occurred when the James Bay Cree Indians threatened to secede from Quebec if Quebec were to secede from Canada (2008).

Nevertheless, despite all the questioning and condemnation, the government has not changed, or even defended, its stance on UNDRIP. It’s surprising and troubling that a nation which prides itself on its human rights record has adopted this position and has maintained it in the face of widespread criticism. Since the initial statements about its position regarding UNDRIP, the government has not addressed the substantial and convincing arguments raised by international groups, national groups, and academics.

Fortunately, even without the backing of UNDRIP, indigenous persons in Canada are not completely without government support. The government has taken steps to assist indigenous peoples and groups. For instance, one of many Health Canada initiatives for indigenous persons is the National Native Alcohol and Drug Abuse Program (2008). The program’s goal is “to support First Nations and Inuit people and their communities establishing operating programs aimed at arresting and offsetting high levels of alcohol, other drugs, and substance abuse among the target population living on reserve” (Ibid). A simple search of Native initiatives on the Canadian government’s website yields compelling evidence of other governmental support of indigenous persons.

However, another simple search of Native statistics from Statistics Canada reveals the enormity of the problems still facing indigenous peoples. The year before the government voted against UNDRIP, for example, only twenty percent of indigenous people graduated from high school and seventeen percent of indigenous peoples were unemployed (compared to six percent of the general population) (Human Resources and Social Development Canada 2006). It seems obvious that the Canadian government should neglect no opportunity that could lead to bettering the lives of indigenous peoples. At the very least, the government should begin to seriously engage in discussion and debate about UNDRIP.

To vote against a declaration that an international body as prestigious as the UN hailed as the “most comprehensive statement of the rights of indigenous peoples ever developed” and then, upon its, adoption, declared to be “the clearest indication yet that the international community is committing itself to the protection of the individual and collective right of indigenous peoples” was a startling and troubling action for a country which has over 1.2 million Native Peoples within its borders, – some of the leaders of whom were actually involved in the creation of the draft of UNDRIP (UNPFII 2006 About UNPFII; Bailey 2008). Accordingly, the government needs to face the strong criticism raised against its stance, particularly the challenges to its assertion that UNDRIP could conflict with the Constitution Act and Charter of Rights and Freedoms. Otherwise, it is hard not to speculate that the government may have other motives for voting against UNDRIP, which would be a further stain on Canada’s human rights record on both the domestic front and the international stage.

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1 Article 3

Indigenous peoples have the right to self-determination. By virtue of that right

they freely determine their political status and freely pursue their economic, social

and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the

right to autonomy or self-government in matters relating to their internal and local

affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct

political, legal, economic, social and cultural institutions, while retaining their right

to participate fully, if they so choose, in the political, economic, social and cultural

life of the State.

2 The other three countries were Australia, New Zealand, and the United States of America

3 Article 46, Part 2

2. In the exercise of the rights enunciated in the present Declaration, human

rights and fundamental freedoms of all shall be respected. The exercise of the rights

set forth in this Declaration shall be subject only to such limitations as are

determined by law, and in accordance with international human rights obligations.

Any such limitations shall be non-discriminatory and strictly necessary solely for

the purpose of securing due recognition and respect for the rights and freedoms of

others and for meeting the just and most compelling requirements of a democratic

society.

4 Article 26

1. Indigenous peoples have the right to the lands, territories and resources

which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the

lands, territories and resources that they possess by reason of traditional ownership

or other traditional occupation or use, as well as those which they have otherwise

acquired.

3. States shall give legal recognition and protection to these lands,

territories and resources. Such recognition shall be conducted with due respect to

the customs, traditions and land tenure systems of the indigenous peoples

concerned.

5 Article 19

States shall consult and cooperate in good faith with the indigenous peoples

concerned through their own representative institutions in order to obtain their free,

prior and informed consent before adopting and implementing legislative or

administrative measures that may affect them.

6 Ironically, Mrs. Arbour is a former Justice of the Canadian Supreme Court (UN Press Releases 2004).

7 “It appears that the Native Hawaiians and the Zapatistas would not be better protected by Canada.”