UN Declaration on Rights of Indigenous Peoples

BC's Declaration Act explained

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The first part of the act sets out a requirement. The government must take a responsibility to take all measures to ensure all laws are in alignment with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The act requires an action plan to be developed with First Nations to achieve that objective. And further, the minister responsible must report annually on progress toward this objective. This requirement creates an accountability mechanism so that First Nations and the public can see whether the government is productively moving toward the goal.

The next part of the act creates the ability for the government to create agreements with Indigenous governing bodies. Those agreements can be for a great reason: sharing statutory powers claimed by the provincial government with Indigenous governing bodies ie: decisions are to be made jointly.

This section is powerful for a few reasons. The act defines Indigenous governing bodies as Indigenous Peoples with rights and title or treaty rights under Section 35 of the Canadian Constitution Act. There is a critical distinction here: the act does not define Indigenous governing bodies as Indian bands under the Indian Act, but as self-determining groups with rights and title.

Those could include multi-community organizations, mixtures of elected and hereditary leadership or any structure as determined by the group itself. The act then gives powers for the government to share statutory decisions with Indigenous Peoples through formal agreements. It’s important, however, to recognize it’s up to First Nations to organize themselves to do this work.

Shared decision-making

What are all the statutory decision-making powers the province claims? That is the crucial question for anyone wondering what the legislation means. Indigenous governing bodies may use this to create agreements on shared decision-making in environmental assessments over industrial projects in their territory or taking control of child welfare for kids in the care system.

The point is that each Indigenous community can define for themselves what they would like to prioritize.

The provincial government is also now recognizing the inherent self-determination of Indigenous groups and including them in decision-making. The province is extending its arm of decision-making to include Indigenous communities. It uses UNDRIP as a framework for determining what decisions need to be shared.

The act also includes a “non-derogation clause.” This wording is a standard clause often added to legislation or agreements to protect and affirm inherent Aboriginal and treaty rights and title. Nothing in the act can be read to take away any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under Section 35 of the Constitution Act of 1982. As is later laid out, B.C.’s Declaration on the Rights of Indigenous Peoples Act is to enable further rights without watering down any existing rights.

The province is creating new tools available to all First Nations in B.C. Any First Nation that may have signed a final agreement under the B.C. Treaty Process or self-government agreement is given new opportunities to exercise rights and decision-making.

..the author of the above piece

 Tl'akwasik'an Khelsilem -  Councillor Squamish Nation, North Vancouver

B.C. takes historic steps towards the rights of Indigenous Peoples, but the hard work is yet to come

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Implementation questions linger

In some quarters, any talk of actually upholding the UN Declaration will spur anxiety and opposition. Readers may be familiar with the fact that Bill 41 is based on proposed federal legislation. Romeo Saganash’s private members bill, Bill C-262, died in the Senate in June 2019 after the delaying tactics of a handful of Conservative senators prevented it coming to a final vote.

Concerns over the implications of the UN Declaration have also popped up from time to time in B.C. media.

Speaking to the legislature after the bill was introduced, Cheryl Casimir, of the First Nations Summit, joked: “Did you hear that? The sky didn’t fall.”

I agree wholeheartedly. As someone who has intensively studied the UN Declaration, its content, its history and the work of Indigenous Peoples around the world to bring its provisions to life, I can say without hesitation that the fears and anxiety that have been stirred up around implementation are overblown and unwarranted.

Implementation of the declaration is already well under way, albeit in a patchwork and uncertain way. Courts, human rights tribunals and environmental impact assessment panels have already referenced and applied its provisions.

The importance of Bill 41 is that it provides a framework for the province to now engage more proactively so that implementation can unfold in a more predictable and consistent way. Bill 41 requires the province to develop a co-ordinated action plan “to achieve the objectives of the Declaration” and to report regularly to the legislature on the progress being made.

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The bill also requires that the government implement it “in consultation and co-operation” with Indigenous Peoples. The phrase “in consultation and co-operation” is crucial. The words come directly from the UN Declaration itself and signal the imperative of going beyond mere consultation to instead work together in what the declaration calls “a spirit of partnership and mutual respect.”

Legislative pathways have always been considered essential for domestic implementation of the UN Declaration. As the text of Article 38 states: “States, in consultation and co-operation with Indigenous Peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

Various UN bodies have called for legislative measures and public policies to implement the rights recognized in the declaration, yet they also recognize that legislation alone is generally not sufficient.

Without a doubt, there is significant work ahead to identify, prioritize and implement the reforms needed to bring B.C. in line with the requirements of international human rights law. Even with the framework provided by the UN Declaration, it will not be quick or easy work to uproot the legacies of colonialism present in provincial law and policy.

Action plans

While B.C. is about to become the first jurisdiction in the Commonwealth to adopt a legislative framework for implementation of the declaration, it will not be the first to develop an action plan for implementation. The collaborative development of a National Action Plan is already well under way in New Zealand.

The New Zealand government is working with the Maori people to identify key reforms necessary in their national laws and policies and co-develop their National Action Plan. As part of its process, the Human Rights Commission of New Zealand and Maori groups co-invited members of the UN Expert Mechanism on the Rights of Indigenous Peoples to visit and provide advice. The government of British Columbia should follow suit.

While the action plan developed in B.C. must adapt to the specific needs of Indigenous Peoples in the province, it’s important to remain engaged with the ongoing processes of how the declaration is interpreted and applied globally.

..and bolivia wasn't the first. then there's brazil. the declaration isn't about the un.  

Is Reconciliation A Peaceful Process?  - by Tamara Starblanket

https://canadiandimension.com/articles/view/is-reconciliation-a-peaceful...

"On the international stage, Canada portrays itself as a peaceful state; however, the reality is quite different for our Original Nations and Peoples that remain in a colonial grip...The doctrine of reconciliation is implemented by the Recognition and Implementation of Rights Framework, the United Nations Declaration on the Rights of Indigneous Peoples (UNDRIP) and the Truth and Reconciliation Commission of Canada's (TRC) Call to Action.

These three mechanisms are assumed to be peaceful, but what actually drives the policy of reconciliation is intent to overrun our lands and our Nations and assimilate our Peoples into the colonial state. Reconciliation is the assimilation project refurbished through a false facade of peace..."

And since the primary wish of most Canadian liberals is mostly to disassociate themselves from these processes of usurpation, colonization and genocide of which they are beneficiaries, the above symbols and semblance of 'reconciliation', the 'false facade' are all that is required. Not its reality.

Re #60 -  Jack Woodward QC et al -  How They Got So Rich and Fat Losing Cases For Indigenous

"As an institutional class the legal profession in North America labours under a conflict of interest...Even if the lawyer is aware of the constitutional and international law that supports the sole authority of the ancestral law, the lawyer will feel bound to say that law does not matter given the legal system's prior suppression of its existence..."

An Identification of the Conflicted Relationship Between the Indigenous Nations and the Legal Profession in North America

https://dissidentvoice.org/2009/01/an-identification-of-the-conflicted-r...

Horgan's Pipeline Push Betrays His Reconciliation Promise

https://thetyee.ca/Opinion/2020/01/15/Horgans-Pipeline-Push-Betrays-Reco...

"...Are we not in a new era of reconciliation? A new decade? The decade of the enactment of the United Nations Declaration of the Rights of Indigneous Peoples (UNDRIP) Act in this province? So what does consent mean to this BC government? The answer is nothing..."

https://www.cbc.ca/news/indigenous/therese-keenatch-residential-school-iap-claim-ruling-1.5433985

Woman denied settlement for sexual assault on way to residential school because she wasn't yet a student

Nuchatlaht take fight for heavily logged territory to B.C. Supreme Court. Here’s what you need to know

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The Nuchatlaht rights and title case, claiming about 200 square kilometres of Nootka Island, off the west coast of Vancouver Island, is the first to apply the precedent-setting 2014 Tsilhqot’in decision, in which the Supreme Court of Canada granted the Tsilhqot’in First Nation title to 1,750 square kilometres of territory.

It is also the first title case to test the province’s Declaration on the Rights of Indigenous Peoples Act, passed in 2019. The act is meant to bring all B.C. laws into alignment with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

So, as the Nuchatlaht prepare to take their arguments to B.C. Supreme Court, here’s what you need to know about one of the most important Indigenous title cases currently being fought in the province.

Why is the Nuchatlaht land title case heading to court now?

Intensive industrial clearcut logging by forestry company Western Forest Products has removed 80 per cent of the old-growth timber on Nootka Island and destroyed salmon streams, according to Nuchatlaht Ha’wilth (Hereditary Chief) Jordan Michael, who spoke about the legal case at a webinar hosted by the Wilderness Committee in early March.

But the provincial government, which manages forestry tenures and licences, has refused to recognize Nuchatlaht’s right to manage and protect their territory, Michael said.

In January 2017, expressing frustration that protracted treaty negotiations with B.C. and Western Forest Products were allowing extensive forestry operations to continue impacting water quality and salmon runs, the Nuchatlaht filed their land claim in B.C. court.

The case then stalled out, after the province claimed the Nuchatlaht did not have legal claim to their lands because the nation abandoned its territory.

The abandonment claim snagged the case in pre-trial limbo for years as the province sought to establish the Nuchatlaht’s abandonment of their territory. Provincial lawyers even requested the nation provide documents proving they did, in fact, abandon their territory. 

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B.C. is arguing the Nuchatlaht abandoned their territory and did not hold Aboriginal title

Last week, Woodward received the province’s latest response to the nation’s civil claim which states B.C. “denies each and every allegation of fact” put forward by the Nuchatlaht, “except as expressly admitted.”

The province argues the Nuchatlaht abandoned Nootka Island, that B.C. laws displaced their Indigenous title — meaning forestry tenures are lawful — and that the Nuchatlaht Nation was a loosely affiliated group of First Nations families that was too small and weak to hold Aboriginal title, as it’s known in legal terms.

Woodward, who successfully litigated the precedent-setting Tsilhqot’in case — which established that semi-nomadic First Nations can claim entire territories, not only village sites — and is renowned for his role in drafting Section 35, which enshrined Indigenous Rights into the Canadian Constitution, is exasperated by the provincial arguments.....