It is time: Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act

Last week, at long last and much anticipated, federal Justice Minister David Lametti tabled Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, and the prospect that this crucial international human rights instrument will become part of the laws of Canada drew one very significant step closer.

This is law-making at its best, the potential to truly be a source of justice, to be ground-breaking and to be transformative. The vital importance of this legislation is made convincingly clear in its searing 22 paragraph preamble, beginning with the following:

“Whereas the United Nations Declaration on the Rights of Indigenous Peoples provides a framework for reconciliation, healing and peace, as well as harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith…”

The Declaration is the result of a remarkable collaborative drafting process with Indigenous peoples -- painstaking and time-consuming -- that spanned 25 years.  Even within the United Nations that is slow-going.  But that represents the extensive work that went into getting it just right.  And it is reflective of how seriously this was taken, by Indigenous peoples and states alike.

So many years and so much effort, yet almost immediately – though not unexpectedly – we heard from the naysayers and doomsayers, complaining there has not been enough time to think things through.  The Globe and Mail reports that the premiers of Alberta, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick jointly registered objections with the federal government last month, claiming this is moving too quickly and asking for a delay:

“The federal approach has not allowed us enough time for informed discussions, nor to engage with our industry stakeholders and Indigenous communities on this issue. We need more time to talk, not less. To ask for our input with a mere six weeks for engagement – a handful of meetings for provinces and territories and one ministers-only meeting – is wholly inadequate. We want a meaningful opportunity for real dialogue.”

We need more time? When it comes to upholding the rights of Indigenous peoples there is indeed a great deal that is needed, but more time to get around to the action needed can be nowhere on that list.

And how about a bit of a reality check when it comes to the passage of time here. This has by no means come upon governments overnight.

The UN took the first step towards developing the Declaration back in 1982 when the world body’s Economic and Social Council passed a resolution authorizing its Sub-Commission on the Prevention of Discrimination and Protection of Minorities to establish a Working Group on Indigenous Populations, specifically tasked with giving “special attention to the evolution of standards concerning the rights of indigenous peoples.”  Need more time?  That was 38 years ago. 

The Working Group began reviewing a draft of a Declaration on the Rights of Indigenous Peoples back in 1988.  Need more time?  That was 32 years ago.

UN human rights processes are not at all famous for speed.  True to form, the Declaration’s journey through the Working Group and the Sub-Commission, then on to the Commission on Human Rights, an Open-Ended Working Group set up by the Commission, the newly-established UN Human Rights Council (which replaced the Commission in 2006) and ultimately the UN General Assembly, took another 19 years.  Need more time? 

And at long last, the UN Declaration on the Rights of Indigenous Peoples was adopted by the United Nations in 2007, 25 years after the initial Working Group had been established.  Need more time?

Sadly and notoriously, Canada voted against adoption of the Declaration, two times: at the UN Human Rights Council in 2006 and again in the General Assembly in 2007.  That opposition, though disgraceful, reflected a tiny minority (only one other vote against the Declaration at the Council, and just three countries joined Canada in opposition in the General Assembly).  With overwhelming global support, the Declaration had become part of international human rights law.  That was 13 years ago.  Need more time?

Canada was, rightly, roundly criticized at home and abroad for its active opposition to the Declaration.  The Harper government half-heartedly reversed that opposition in 2010, stating that, “after careful and thoughtful consideration, Canada has concluded that it is better to endorse the UNDRIP while explaining its concerns, rather than simply rejecting the overall document.”  Ten years ago.  Need more time?

In its final report in 2015, the Truth and Reconciliation Commission pressed all governments in Canada to adopt the Declaration:

“We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.”

Five years ago.  Need more time?

Following the October, 2015 federal election, the newly elected Trudeau government quickly signaled its strong support for the Declaration and, two times at the United Nations in 2016, proclaimed Canada’s “unequivocal” endorsement. Five years ago.  Need more time?

The effort to bring the Declaration into Canada’s laws gained impressive momentum with the introduction of private member’s legislation by Romeo Saganash in April 2016, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. (Notably, the current legislation, Bill C-15 is significantly inspired by and based on Bill C-262.) 4½ years ago.  Need more time?  

In November, 2017, the Minister of Justice at the time, Jody Wilson-Raybould, announced that the Trudeau government was lending its support to the adoption of Bill C-262. Three years ago. And in May 2018 Bill C-262 was passed by the House of Commons (not a common or easy feat for private member’s bills). 2½ year ago. Need more time?

C-262 never, however, made it out of the Senate.  A handful of Conservative Senators resorted to stalling tactics that held up a final vote on the Bill long enough such that it was never passed before that session of Parliament ended in June 2019 and we headed to the polls for the October 2019 federal election.  A hopeful journey came to an end after being stuck in the Senate for a full year.  Need more time?

In June 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls issued its final report.  Like the Truth and Reconciliation Commission four years earlier, the Inquiry recommends that the Declaration be implemented in Canada.  1½ years ago.  Need more time?

And finally, in November 2019 the government of British Columbia adopted legislation that implements the Declaration in that province, the first government in Canada to do so.  Notably, the sky did not fall in.  That was one year ago.  Need more time?

Respecting the Declaration and incorporating it into Canadian law is certainly first and foremost owed to and will be of tangible benefit to Indigenous Peoples.  But truly it is a milestone development in which everyone across Canada has a direct interest and which all of us should champion.  After all, as Professor Brenda Gunn at the Faculty of Law at the University of Manitoba reminds us, that is made abundantly clear in one of the most important passages in the Declaration’s opening preamble, noting that governments are “convinced that the recognition of the rights of indigenous peoples in this declaration will enhance harmonious and co-operative relations between the state and Indigenous peoples.”

We do not need more time to think about whether the Declaration -- 25 years in the making and enshrined in international law for the past 13 years -- should be part of the law of the land in Canada.  Nor do we need more time to think about moving ahead with Bill C-15, which is very similar to Bill C-262, already amply debated and studied in Parliament over the course of four years.

Time is up on doing the right thing when it comes to advancing real reconciliation with Indigenous peoples.  Time is up on ensuring that Treaties are respected, past injustices redressed, and international human rights obligations upheld.  And most certainly time is up on excuses and delays. It is long past time to truly commit to the Declaration and embark with the work of implementing it. 

The time, Premiers Kenney, Moe, Pallister, Ford, Legault and Higgs, is now.