How 2021 Really Did Change Everything for Indigenous & Aboriginal Law in Canada: The Dramatic But Little Known UNDRIP Act

Probably no area of legal practice in Canada is so prone to great expectations followed by repeatedly dashed hopes as is Indigenous and Aboriginal law. Once every year or two, the Supreme Court of Canada will grant leave to appeal to what seems to be such a significant case about Aboriginal rights, treaties or title. Everyone will hold their breath waiting for judgment, imagining a truly groundbreaking breakthrough decision. Only to learn when reasons for judgment are released that while there is lots of interesting theorizing, in the end the result is only yet another trial (Delgamuukw v. British Columbia, [1997] S SCR 1010), or more negotiations (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44), or that poor consultations really were okay after all (Taku River Tlingit First Nation v. British Columbia, 2004 SCC 74).

But 2021 was dramatically different because the truly groundbreaking breakthrough had nothing to do with the Courts, and everything to do with Parliament.

Parliament Fully Adopts UNDRIP into Canadian Domestic Law

It’s quite true that the Indigenous and Aboriginal law expectations and dashed hopes cycle has also played out to a lesser degree in Federal and Provincial legislatures over the decades, though often not in as dramatic a way as with the courts, as the legislative process is more transparent in that one can see the modest efforts from the start not even getting off the ground or accomplishing much, like Indian Act reforms debated since the 1960s, or various forms of exceedingly modest self-government legislation created from the 1990s onwards.

But in 2021, Parliament quite quietly in the middle of the pandemic passed what was known as Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples, S.C. 2021, c. 14, which received Royal Assent on 21 June 2021 (UNDRIP Act).

Over fourteen years ago, on 13 September 2007, an overwhelming majority of 144 states voted in favour at the United Nations General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Only four countries voted against it, Canada being one of them (along with the US, Australia and New Zealand).

Reading over the rights UNDRIP’s 46 Articles articulate, it’s hard to imagine how anyone could oppose it. Canada especially objected to 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.”

But then suddenly on 10 May 2016, Canada announced through a speech given by the Minister of Indigenous and Northern Affairs at the UN that “Canada is now a full supporter of the Declaration, without qualification, is an important step in the vital work of reconciliation. Adopting and implementing the Declaration means that we will be breathing life into Section 35 of Canada’s Constitution, which provides a full box of rights for Indigenous peoples.”

While it took five more years to pass legislation fully adopting the Declaration into Canadian law, it’s now been six months since we’ve all been living with UNDRIP throughout Canada. While none of us might feel any different, that doesn’t mean there hasn’t been a dramatic legal shift that we all need to wake up to.

UNDRIP Immediately Applies Throughout Canadian Law

The language used in the 2021 UNDRIP Act is quite definitive and without qualification that all of UNDRIP’s 46 Articles are now part of Canadian law. While the Act may talk about developing a framework, the Act is very clear that the lack of a framework is not an excuse to fail to implement UNDRIP immediately. The referenced framework is only a technical means to an end.

Section 4 of the Act explicitly establishes that: “The purposes of this Act are to (a) affirm the Declaration as a universal international human rights instrument with application in Canadian law; and (b) provide a framework for the Government of Canada’s implementation of the Declaration.” Section 5 requires that “The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration. Very importantly, sub-section 2(3) of the Act clarifies: “Nothing in this Act is to be construed as delaying the application of the Declaration in Canadian law.”

I’m asking you to take my word as a lawyer involved in constitutional and Indigenous legal issues as well as statutory construction for over 25 years that this is very strong and imperative language which actually means something. It’s not merely aspirational. It’s not vague. In short, it’s not merely political fluff!

You need to understand that even binding international treaties don’t self-implementation under Canadian law - unlike in some countries where once they’ve been internationally ratified they automatically become part of the laws of those lands - rather, they require implementing legislation by a competent legislature. And UNDRIP might not even be considered an international treaty in the traditional sense with operative provisions among the parties, rather it’s just a declaration of important principles. Canada sometimes never domestically implements even the international agreements it accepts, or only does so in a piecemeal fashion, for various political and legal reasons.

Thus, Parliament’s UNDRIP Act wholeheartedly incorporating UNDRIP into Canadian domestic law is a dramatic legal step. The Act even attaches UNDRIP as an Annex, so that there’s no doubt about precisely what is becoming part of Canadian law.

The Act’s lengthy preamble includes confirmation that: “the rights and principals affirmed in Declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world, and must be implemented in Canada” as well as that “all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government.”

Our Collective Responsibility to Ensure This Doesn’t Turn Into More Aspirational Fluff

At the end of the day, we all know that talk is cheap. The UNDRIP Act isn’t talk. It’s now law. And has been for the last six months. Though I’m not sure how many have realized that.

I’ve already heard directly from at least one Government of Canada representative the claim that the Act only creates a framework, and nothing more. But that’s not what the Act says. And isn’t what Parliament intended.

It’s up to all of us collectively to hold the Crown to account in honouring the UNDRIP Act’s strong words, which apply all of UNDRIP everywhere in Canada, right now. Will the lawyers and politicians have exceedingly long debates over what the words of UNDRIP really require inside Canada? Of course they will.

But in 2016 Canada’s recognition of UNDRIP was still only talk. In 2021 that all changed when UNDRIP became part of Canadian law. It’s up to all of us now to start invoking the UNDRIP Act whenever it’s appropriate to remind all Canadians that the law shifted dramatically in 2021, and while there’s still lots of work to do in figuring out how that shift works in practice on the ground, there is no denying the dramatic change.

Gordon S. Campbell practices Indingenous & Aborginal law throughout Canada. Learn more at www.acmlawfirm.ca/Indgenous&AboriginalLegalServices