I appreciate Trudy Klassen’s closing remarks in her article about UNDRIP, namely that she acknowledges that what she says is grounded on a “basic understanding.” I will try to set her straight.
She rightly points out earlier in her article that UNDRIP is not about the superiority of one culture over another; that would certainly be a strange premise on which to base a widely adopted (if not implemented) international agreement.
And I agree that youthful demonstrators have much to learn about what UNDRIP does and does not say. However, to suggest that the agreement basically adds nothing new to the suite of rights already established in Canada’s constitution and Supreme Court decisions is wrong, overlooking both the severe limitations of Canadian law for indigenous rights and the deeper and more meaningful provisions in UNDRIP.
Section 35 of the Constitution was an enormous leap forward, no doubt, as it enshrined the legitimacy of aboriginal and treaty rights, though these were not specified. That specification was left to a host of subsequent court decisions, most of which tended to expand the way that Canada (and its provincial governments) must include First Nations in land and resource decision-making. The case that came to be known as Delgamuukw, brought by Gitksan and Wet’suwet’en hereditary chiefs made it clear that “there is always a duty to consult” and that in most cases that has to mean something more than (in the court’s wording) “mere consultation.”
But despite the understandably celebratory reaction of many First Nations leaders to Delgamuukw, the court did not break with the longstanding primacy of settler interests over Indigenous ones. Rarely mentioned was that the learned justices of the Supreme Court left a door open to settler government override of Indigenous rights through which a truck could (and has) literally and figuratively been driven through. The Supreme Court ruled that those governments could infringe on the rights the First Nations for a dizzying array of purposes: “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations” (paragraph 165 of the decision). Put bluntly, settler interests to do damn near anything would prevail if push came to shove.
It is against this background that UNDRIP is so very different. Ms. Klassen cited UNDRIP Article 5 which certainly doesn’t create much new. But the truly ground-breaking section of UNDRIP is Article 32 (2):
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
No loophole there for infringement!
And there are numerous other articles in UNDRIP repeating this requirement for Indigenous “free and informed consent” for a host of governance matters from education to hazardous waste management. If stuck to (something that neither Canada nor B.C. seem willing to do as opposed to talk about) this would certainly be a massive change, one “new-to-Canada” and likely to avert the kind of bad faith decision-making that Horgan’s government has pursued regarding the Coastal Gas Link pipeline.