United Nations Declaration on the Rights of Indigenous Peoples: The History, Content, Meaning, and Impact on Canadian Law

Introduction

The United Nations Declaration on the Rights of Indigenous Peoples, or “UNDRIP”, came into existence on September 13, 2007.[1] The Declaration was created by the United Nations (“UN”), UN member states, and Indigenous people across the world. It is celebrated as the only UN declaration that has been created with the rights-holders themselves.[2] The Declaration includes sections on self-determination, self-government, land rights, culture and language rights, and consent rights.

The purpose of UNDRIP is to create a new and positive relationship, free from discrimination and exploitation, between Indigenous Peoples and state governments.[3] This document will explain what a United Nations declaration is, how UNDRIP was created, the significant parts of the Declaration, and its impact on Canadian law.

What is a United Nations Declaration?

A United Nations Declaration is a document produced by the General Assembly of the United Nations. The General Assembly is just one of many UN bodies and includes all 193 UN member states. To be produced, a General Assembly declaration must gain a majority of the votes in the Assembly. Other important UN declarations include the Universal Declaration of Human Rights and the Declaration on the Rights of the Child.

The General Assembly does not have the power to create binding international law.[4] However, the Assembly does have the power to issue declarations such as UNDRIP. While not strictly binding, declarations are considered part of international law and have significant power to influence how all UN member states behave.[5] There are expectations that members of the international community shall implement and abide by any declaration passed by the General Assembly.[6] Declarations also have a powerful role in the development of new international law.[7] Over time, as more states follow the rules in a declaration, it is possible that it may evolve into binding requirements that states must comply with.[8]

The principle that declarations are not binding does not necessarily mean that specific rules within them cannot be binding. A rule within a declaration may reflect binding international law that already exists. These may be found in other treaties or customary international law.[9]

Treaty Law

Treaties are voluntary agreements that states enter into with each other, similar to contracts. They create obligations for states that sign the treaty. A rule within a declaration may already be part of a binding international treaty. If so, the rule found in the declaration is binding on all countries that are part of the treaty regardless of whether they view the declaration as binding by itself.

Customary International Law

Customary international law refers to international law that has been built up over time. While there are specific legal tests to determine its existence, once established, customary international law is binding on all countries regardless of whether they have agreed. Like treaties, many declarations restate principles already understood to be customary international law. If so, the rules in a declaration that are also customary international law are legally binding on all countries.

History of UNDRIP

The development of a declaration on Indigenous rights took decades.[10] Indigenous Peoples across Canada and the world worked directly on the Declaration.[11] Over 30 years after they began, the UN General Assembly voted in favour of adopting UNDRIP as a General Assembly resolution on September 13, 2007.

World Reception

Originally, 143 countries voted in favour of UNDRIP. 34 countries were absent and 11 abstained.[12] Four other countries, Australia, New Zealand, the United States, and Canada voted against the Declaration.

Some of the concerns of the member states included the financial cost of the rights found in the Declaration.[13] Additionally, many countries in the world understood rights as individual in nature. For example, we each individually have the right to freedom of expression (free speech) under section 2 of the Canadian Constitution Act, 1982. Countries feared that UNDRIP gave special communal rights to groups of people rather than the individual rights they were used to.[14] This challenged the traditional view of equality that many countries believe in.

Canada’s Reaction to UNDRIP 

Canada originally voted against UNDRIP. The government was concerned with many parts of the Declaration, including land rights, resource rights, self-government, and a requirement of consent for government actions that impact Indigenous people.[15] Canada also believed that, as a global document, the Declaration was too general and did not recognize the country’s unique circumstances.[16]

Canada, Australia, the United States, and New Zealand also argued that the Declaration should not be passed until it was unanimous. This has never been necessary for any other General Assembly declaration and would have effectively killed the Declaration.[17] Lastly, Canada argued that the Declaration may not be compatible with Canadian law and may jeopardize the property interests of non-Indigenous Canadians.[18]

In 2010, Canada gave a qualified endorsement of the Declaration. This means that they accepted UNDRIP but stated that it may be inconsistent with Canadian law.[19] The Canadian government stated that the Declaration was not legally binding and did not reflect already established international law.[20] In effect, this approach placed UNDRIP as secondary to existing Canadian law and reduced any potential impact.

Present Day

            The Declaration now has almost unanimous international support. All four of the countries that voted against UNDRIP have since endorsed it. On May 9, 2016, Canadian Minister of Indigenous and Northern Affairs Carolyn Bennett and Justice Minister Jody Wilson-Raybould gave a full Canadian endorsement of UNDRIP at the United Nations in New York City.[21] Minister Bennett stated that “it is Canada’s intention to remove our permanent objector status and become a full supporter of the United Nations Declaration on the Rights of Indigenous Peoples... We want to demonstrate today and in these coming weeks our commitments to ensure that all Canadians have a truly concrete roadmap to reconcile with Indigenous people.”[22]

UNDRIP – What’s in it?

UNDRIP includes 24 preambles. Preambles are statements that may be at the beginning of Canadian legislation, international treaties, and General Assembly declarations. They may discuss the purpose of the document or some principles that support it. In UNDRIP, these preambles include the recognition of the injustices of colonization and the realization that when Indigenous rights are based on “justice, democracy, respect for human rights, non-discrimination and good faith,” they will create better relations between Indigenous Peoples and state governments.[23]

The Declaration includes 46 articles. These articles recognize and develop the rights of Indigenous Peoples, including:[24]

• The right to be free from discrimination (Article 2).

• The right to self-determination, including the right to autonomy or self-government over internal affairs (Articles 3-5 and 19).

• The right to life, physical and mental integrity, liberty and security of the person (Article 7).

• The right to culture, religious, and linguistic identity (Articles 5, 8, 9, 11-13, 15, 31, 33 and 34).

• The right to education, public information, and employment (Articles 14-17).

• The right to participation in decision making and free, prior and informed consent before governments take action that may affect them (Article 19).

• Economic and social rights such as the right to adequate living standards and economic well-being (Articles 20, 21 and 23).

• The right to lands, territories and resources (Articles 10, 25, 26, 27, 29 and 32).

• The right to have treaties, agreements and other constructive arrangements upheld (Article 37).

• Indigenous children and women’s rights (Article 22).

Is UNDRIP Law in Canada?

The general rule is that declarations do not have any legal effect in Canada unless the government fully implements them in legislation and policy.[25] A full endorsement of the Declaration is not enough. However, there are strong expectations that UN member states implement declarations in good faith. The near unanimous support of UNDRIP increases this expectation further. The UN has previously stated that UNDRIP is considered to have a “binding effect for the promotion, respect and fulfillment of the right of [I]ndigenous [P]eoples worldwide.”[26]

It is argued that many of the rules in UNDRIP are binding on the Canadian government due to their existence in other treaties or as customary international law. Even if not binding, it is also argued that UNDRIP should be used by courts as an interpretive tool for understanding how the relationship between Indigenous people and the Canadian government should continue.

Treaties

            If the rules of UNDRIP are found in other treaties to which Canada is a party then they are already part of Canadian law. Even if the specific UNDRIP rules are not found in other treaties, experts argue that the Declaration should be used to provide context for Canada’s binding obligations in other international human rights documents.[27] This is because all international law should be read to be consistent with other pieces of international law.

Customary International Law

             It is argued by international law experts that because UNDRIP is almost universally supported and largely followed, many parts have become customary international law.[28] This includes:[29]

• The Indigenous right to self-determination

• The right to autonomy or self-government

• The right to recognition and preservation of their cultural identity

• The right to traditional lands and natural resources

• The right to reparation and redress for the wrongs suffered

• The right to expect that all treaties be honoured and fully implemented

If these rights are found to be part of international customary law, they are therefore binding upon UN member states such as Canada.

In Canada, courts typically take the approach that customary international law, unless expressly contradicted by Canadian legislation, is binding and directly applicable.[30] No implementation by the government is needed.[31] This means that Indigenous Peoples trying to establish Aboriginal rights or land title could argue that the courts should interpret Canadian law, including the Constitution Act, 1982, to be consistent with the provisions of UNDRIP listed above.

Norms

            Whether binding in Canada or not, UNDRIP provides strong moral authority for Indigenous Peoples’ assertion of their rights.[32] Canadian courts may use documents such as UNDRIP to interpret legislation and the Constitution when there may be doubt or clarification needed.[33] For example, the Supreme Court of Canada has previously found that the UN Declaration on the Rights of the Child, while unimplemented in Canada, was relevant for the interpretation of Canadian law.[34] This means that when the court is interpreting Aboriginal rights or title under section 35(1) of the Constitution Act, 1982, they may interpret it to be consistent with the articles in UNDRIP.

UNDRIP in the Future

            Many of the articles in UNDRIP could have a large impact in Canada. The Declaration includes the right for Indigenous People to self-government (Article 4), a right to their traditional lands (Article 26), and a right to withhold their consent to any government action that may affect them (Article 19). However, experts argue that legality is not the main obstacle to the implementation of UNDRIP. Rather, it is a lack of political will.[35]

            Even without full implementation, UNDRIP can still be used to inform the public about Indigenous rights, influence government policy, and develop Canadian law.[36] Most importantly, UNDRIP sets standards for how governments across Canada should approach their relationships with Indigenous Peoples. International law can be a tool that can be used to put pressure on governments and make change at the national level, regardless of its status as binding in law.

Footnotes

[1] United Nations Declaration for the Rights of Indigenous Peoples, United Nations, 13 September 2007, A/61/295, https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.

[2] Brenda L. Gunn, “Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada” (2013) Windsor Yearbook of Access to Justice 148 [Gunn].

[3] Gunn, 149.

[4] Phillip Saunders, Robert J. Currie, Kindred’s International Law: Chiefly Interpreted and Applied in Canada, (Toronto: Edmond Montgomery Publications, 2019) at 51 [Kindred’s International Law].

[5] Kindred’s International Law, 59.

[6] Gunn, 160.

[7] Kindred’s International Law, at 51.

[8] Gunn 160

[9] Kindred’s International Law, at 59.

[10] Gunn, 148,

[11] Gunn, 149.

[12] Gunn, 151.

[13] Gunn, 158.

[14] Gunn, 156.

[15] Gunn, 151; Kindred’s International Law, at 692.

[16] Gunn, 148.

[17] Gunn, 151 and 152.

[18] Gunn, 169.

[19] Gunn, 155.

[20] Kindred’s International Law, at 692.

[21]  Brian Hill, “Canada endorses United Nations Declaration on the Rights of Indigenous Peoples”, Global News (11 May 2016), https://globalnews.ca/news/2689538/canada-endorses-united-nations-declaration-on-the-rights-of-indigenous-peoples/.

[22] Brian Hill, “Canada endorses United Nations Declaration on the Rights of Indigenous Peoples”, Global News (11 May 2016), https://globalnews.ca/news/2689538/canada-endorses-united-nations-declaration-on-the-rights-of-indigenous-peoples/.

[23] Gunn, 153.

[24] Gunn, 153.

[25] Gunn, 148.

[26] “Declaration on the Rights of Indigenous Peoples: Frequently Asked Questions”, United Nations, https://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf.

[27] Gunn, 165.

[28] Gunn, 161.

[29] Gunn, 165.

[30] Gunn, 164.

[31] Gunn, 164.

[32] Gunn, 162.

[33] Gunn, 167.

[34] Gunn, 167.

[35] Gunn, 150.

[36] Gunn, 169.