Since I discovered the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) I have been reading people's views about it. I later came to my own conclusions on UNDRIP, which is that while the declaration could have been better, it remains a critical recognition that the UN's 1948 Universal Declaration of Human Rights (UDHR) was never "universal", and was authored (first draft by Canadian John Peter Humphrey) from a western worldview perspective.
I consider UNDRIP to be a modernization of our understanding of human rights, and not something that creates special rights for anyone. In fact, I believe the UDHR granted special rights to a specific subset of peoples, a problem which UNDRIP starts to correct.
I pretty much reject all opposition to UNDRIP from western worldviews, as being opposition to human rights. Western worldviews have received excessive privilege globally for hundreds of years, and I believe we as a species must modernize away from this injustice. For no other human right do people even entertain the concept of whether the protection of that human right constitutes a "veto" against an economic interest, and I do not consider that a valid conversation to have in this case.
I understand the frustration that indigenous peoples feel in how the version of UNDRIP that passed the UN General Assembly in 2007 was watered down from earlier drafts that were strongly opposed by specific countries. The countries that opposed this recognition of human rights are Canada, USA, Australia, and New Zealand. These are all creations of the British Empire, imposing British derived legal and governance systems outside of Britain, and where foreign descended settler populations currently outnumber indigenous.
I don't consider this a closed area of policy, but I believe it is harmful to wait until we have a perfect resolution before we support any resolution. The world doesn't change overnight, and the human rights violations induced by colonialism have been ongoing for hundreds of years.
I also learned about a bill that Romeo Saganash and others have been working on for decades that relates to work to bring Canada in conformity with UNDRIP. I also became aware of opposition to this bill from the Truth Before Reconciliation Campaign (See First Nations Strategic Bulletin June - Dec 2020), in cooperation with Idle No More.
While this is not an area of policy I had prior experience with, I wanted to describe my process and thinking for anyone else who is trying to understand any controversies surrounding this area of policy.
The overall sections.
- My background
- My experience with federal government policy
- The design of the bill
- The text of this specific iteration of the bill
- What is in the bill vs what people claim is in the bill
- What is in the bill vs what people wish were in the bill
My background
My training and profession is as a systems administrator and software author. I harness the skills and experience I have from this technical work into policy work.
In a way, computer software is a set of instructions for what computers should do and policy (laws, procedures, etc) are instructions for what people should do. This concept of comparing computer code and legal code is expanded upon by law professor Lawrence Lessig in his book "Code and Other Laws of Cyberspace" (which received a "Version 2.0").
While I have been politically active since the early 1990's on peace, environment and technology related policy, it wasn't until 2001 that I started to become more familiar with the workings of the federal government.
In the summer of 2001 I was alerted to the fact that Canada was planning on bringing the anti-circumvention aspects of the USA's Digital Millennium Copyright Act (DMCA) to Canada. This is a policy I was aware of since the mid 1990's that was part of the USA's National Information Infrastructure (NII) policy from 1995/96. The theory was this: New communications technology could be abused to violate copyright, and thus private citizens shouldn't be allowed to control this technology. This communications technology would be locked down with digital locks, and the manufacturers (rather than the owners or users) would retain all the keys to those locks.
Those with a technology and human rights background immediately opposed this policy, given we understood the impacts of having the technology we often use to express our human rights (democratic, property, privacy, etc) under the control of private corporations would allow those corporations to regulate those human rights.
While people didn't believe us at the time, we can look to recent events where the executives of companies such as Amazon, Apple, Facebook, Google, and Twitter were the ones deciding if a controversial world leader and controversial social media platform (Parler) should be allowed to communicate. All the harms we are starting to feel from so-called "Big Tech" are rooted in this problematic policy, and unless this policy is reversed the problems will only get worse.
My experience with federal government policy
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| Rina Sen, Russell McOrmond, and Justin Trudeau (July 18, 2010, when Mr. Trudeau was still a backbench MP) |
Some key things I learned:
- External pressure works on the Canadian Parliament
The primary motivation for tabling any bill was to implement two treaties (WCT, WPPT) Canada signed at the UN's World Intellectual Property Organization (WIPO). At the time I was unaware of the hypocrisy of Canada being concerned about treaties, given its disregard of treaties with First Nations. - The larger the bill, the worse the policy.
A bill to implement the two treaties would have allowed for adequate scrutiny and debate about the implementation of the treaties. What happened instead was a 68 page bill was tabled with a massive amount of controversial policy, the vast majority unrelated to the treaties. As the submissions to the government and time allowed to witnesses was restricted, everyone had to pick a small number of key areas to either support or oppose. The vast majority of the bill did not receive any scrutiny. - Waiting for perfect might get you worse policy
It was a Liberal government when the first bill was tabled in 2005 (C-60). Those of us on the technology/human rights side of the debate opposed it because it was a bad bill. Then there was an election and the Conservatives came to power. The Conservatives tabled Bill C-61 in 2008 which was far worse, so bad that they rewrote it when yet another election later in 2008. In 2010 Bill C-32 was tabled, and then re-tabled as C-11 in 2011 after another general election.
As it related to the implementation of the WIPO treaties and technological measures, Bill C-11 was far worse than C-60. Bill C-60 was worse on actual "Copyright" policy, but that is a separate issue related to the fact that the bill was an omnibus bill, which generally produces worse policy. - The politicians studying the bill are not subject matter experts
Who is assigned to each committee is sometimes up to individual MPs, but often the parties have specific interests they want promoted and will put in the person best able to push that perspective. It is hard to convince these people of alternative ways of understanding the policy, or even in the case of technology having them understand the difference between science and science fiction (How most MPs understood "technological protection measures" was more like Harry Potter magic fiction than science).
In the case of this bill the same was true of the bureaucracy. While the bureaucrats assigned to author and explain the bill were Copyright experts, they also lacked sufficient technical knowledge to differentiate between science and science fiction. - The individual politicians in the committee studying bill matter
When discussing Copyright, as an example, the differences between MPs on the Heritage committee and the members on Industry committee were greater than the differences between a Conservative MP and an NDP MP.
This may become an important factor for this bill, given the bill could be sent to the "Justice and Human Rights" committee or the "Indigenous and Northern Affairs" committee.
The design of the bill
The exact wording of the bill has changed several times since it was first tabled. The House of Commons website lists all the times it was tabled so far.
- Tia Keeper (Churchill, Liberal) in June 2008 (less than a year after UNDRIP passed the UN General Assembly)
- Denise Savoie (Victoria, NDP) in February 2009, March 2010, March 2010 (reinstated from previous session)
- Romeo Saganash (Abitibi—Baie-James—Nunavik—Eeyou, NDP) in January 2013, October 2013 (reinstated from previous session), December 2014 (defeated at second reading), April 2016 (passed house, filibustered in the Senate)
- Minister of Justice (Liberal government) in December 2020
The overall design has remained consistent over this 12 year period, and those following the process will have provided their feedback:
- Preamble discussing the overall purpose of moving Canadian law toward complying with UNDRIP
- Government must take measures to amend existing laws to be consistent with UNDRIP
- Newer versions more clearly state "in consultation and cooperation with indigenous peoples"
- That there would be an annual report to parliament on progress.
- Include the full text of the UNDRIP passed resolution as a schedule.
This basic design meets what I would consider design criteria for a successful bill.
- It is a smaller bill that tries to do one thing.
It is not an omnibus bill which can't receive adequate scrutiny, which would likely be much more harmful than if a larger number of small bills were passed over time. - It can be passed by the Parliament of Canada
This is a necessary condition for any bill. You can write anything you want in a bill, but if it has no chance of passing through parliament then it doesn't really have a point. This includes bills which are inconsistent with the Constitution which, even if they mysteriously passed, would not stand up in court. These types of bills are a protest, or part of an election campaign strategy, and not useful law making.
It is already proven that this design can pass, as it already passed in the House of Commons in it's C-262 incarnation in May 2019. That incarnation would already be law if it were not for a filibuster (procedural trickery) carried out by dishonest Conservative Senators. - It does not presume to know anything about the outcome of the necessary series of collaborations and amendments to law.
It requires measures to be made "in consultation and cooperation with indigenous peoples", but says nothing about what types of changes might be contemplated through that cooperation.
I don't consider it valid for any government or parliament to believe they currently understand all the ways in which Canadian law violates the current standard for human rights. Canada automatically incorporated laws passed by the British Parliament until 1982, and those laws obviously didn't take indigenous peoples into consideration.
Active indigenous cooperation is mandatory for any type of success. - It does not try to implement UNDRIP.
My analysis has led me to the conclusion that actual implementation of UNDRIP will require a constitutional amendment. This is a separate process (a bill can't amend the constitution, and must obey the constitution), and will likely take decades. I believe this bill is an important activity that can happen early (this year if we are lucky, but maybe next year), knowing that other work will still be needed before Canada can actually implement UNDRIP.
Canada's systems as a European-derived government imposed outside of Europe is an example of White Supremacy, so there is no single immediate change that can be made to bring Canada into compliance with international human rights. All of these changes must be in cooperation with First Nations, as well as international oversight given how untrustworthy Canada has been since it was created by Acts of the British parliament.
In my Fact Checking of the 2019 Liberal platform commitment on UNDRIP I included the "The Six-Step Program to Decolonization" that Arthur Manuel (1951 – January 11, 2017) included in his book The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy. I consider it obvious that this is a long process that will require many activities within each step to do it correctly, and obviously should not be attempted to be done in a single action.
The text of this specific iteration of the bill
Amendments to bills can be made up to the point where they pass the senate and then receive Royal Assent to become law. Amendments have been made prior to many of the new tabling of the bill, and amendments can be proposed and passed by vote in a committee of the House of Commons or (less common) Senate.
While Bill C-262 was reported by the Standing Committee on Indigenous and Northern Affairs without amendment, this may not happen this time. This isn't the identical bill as C-262, and there may be cause to discuss and change some of the amendments that the Liberal Government made between C-262 that passed and Bill C-15.
While I may have opinions about the specific language, I will remain supportive of the bill as long as the overall design stays intact. If, for instance, the bill is modified to impose policy that is not "in consultation and cooperation with indigenous peoples", or tries to limit what areas of law may be modified (presumes outcome of collaboration), then I may change from support to oppose.
This is not yet known at this time, but I'll be honest to suggest I believe this to be unlikely. In this minority situation the Governing Liberals and the NDP are the same parties that need to agree to amendments as well as to agree to pass the bill. Neither party would benefit from being blamed for delaying the passage of this bill.
What is in the bill vs what people claim is in the bill
This is a huge source of pain, and the largest source of anger and confusion.
I already wrote a Fact Check of the 2019 Liberal platform commitment on UNDRIP, and the summary is that their platform commitment was nonsense. They promised to re-table Bill C-262 because "Andrew Scheer blocked legislation", but they claimed multiple times in their platform that C-262 was legislation to implement the declaration. That is misleading at best.
Pretty much every time Justin Trudeau himself or a spokesperson from the Liberal government talks about C-15, it feels like they are campaigning against the bill by misinterpreting or misinforming about what is in the bill.
While this doesn't suggest we should oppose the bill, it does suggest we need to scrutinize what Liberal caucus members are saying about the bill as if they were an opposition party. We need to consider that the Government of Canada, including the Trudeau Government, doesn't actually want to protect human rights -- they only want to be seen to be doing so by the international community and potential voters.
This becomes clear when you look at other government activities. The bulletin from the Truth Before Reconciliation Campaign (also on the Idle No More website) gives a small sampling of the many violations of the human rights articulated by UNDRIP by the current and all past governments (provincial and federal).
Canada is "Very Clearly" guilty of genocide against Indigenous Peoples, and if anyone claims that passing this bill alone will solve this problem then they either don't know what Canada is or are lying to you. This bill is at the beginning of a long process towards changing Canadian law to no longer violate human rights, and can in no way be considered the end of any process.
Violence against Indigenous people "very clearly" is genocide, says Dr. Kim TallBear, an associate professor of Native studies. Here's why. pic.twitter.com/bU6peo3jfn
— AJ+ (@ajplus) July 23, 2019
If you believe the Trudeau government that this bill alone implements something, and yet doesn't (and can't) modify the constitution, then obviously it is not UNDRIP that is being implemented. The Truth Before Reconciliation Campaign suggests that it is implementing CANDRIP, a version of UNDRIP that sits under the Canadian constitution. I disagree, as I don't believe Trudeau, and there is no evidence that this bill implements anything. It sets up a process to incrementally change Canadian law to eventually become consistent with international human rights. Fully implementing UNDRIP is a later process that is separate from this or any other bill.
Where I differ from the Truth Before Reconciliation Campaign and Idle No More is that I don't consider this misrepresentation of the bill to be a reason to oppose the bill, only reason to treat the government as opposition. This includes considering the Trudeau Liberal Government as opposition to the bill, delaying so it can't pass before the next election, even though it was tabled as a government bill. I don't consider separate actions taken by the Governments of Canada (federal and provincial) which continue to violate human rights to be reasons to oppose the bill, only to cause separate anger about those human rights violations.
I recognize that this is potentially not going to be an indigenous way of thinking. If you are thinking about the relationship between various First Nations and the Government of Canada, it is obvious that it continues to be very poor. People are still dying or otherwise being harmed from ongoing genocide. Many people believe reconciliation is dead.
In this case I am not thinking about the overall relationships between nations, but the specifics of this bill and who has been working on it. The Government of Canada is a large system which seems to move in multiple different directions at the same time, and can't be thought of as an individual relationship.
Another spokes-group that is controversial is the Assembly of First Nations (AFN). This is an assembly of Indian Act band council leadership. Band councils are a creation of Canada, and they are accountable to Canada. While the bureaucrats are "elected", this cannot legitimately be considered responsible government: these band councils are not responsible to the people, but responsible to the Canadian Crown.
Given the current formation of the AFN, it cannot be seen as representing indigenous peoples. I reference a press conference after the tabling of the bill, and it should be noted that the government primarily used AFN and other similar representatives in their presentation. While this is helpful to settlers in making them feel there is indigenous support, this isn't helpful with indigenous people who often do not trust the AFN and similar organizations. In fact, there is a common opinion that it was AFN that is behind the bill, thus the poor relationship with AFN is causing people to not trust the bill.
There is also a related dynamic that many Canadians may not be aware of. As part of the silliness of the Canadian "democracy", elected Members of Parliament must swear or solemnly affirm allegiance to the Queen as Sovereign of Canada. Many people, including some settlers but mostly indigenous, will have a hard time trusting anyone who swears allegiance to a foreign monarchy. Even as a settler Canadian I have problems with this as anyone who takes it seriously feels like they are either a traitor or a liar.
There are many people who look at the bill and oppose it based on "guilt by association". The association with the Government of Canada, Liberal Party, Justin Trudeau, AFN or even indigenous MPs may cause opposition based on that relationship and not based on anything in the actual text of the bill.
The Conservatives will oppose any bill that prioritizes human rights over resource extraction, and the Bloc may oppose any bill that recognizes the existence of systemic racism. A whole set of odd interpretations will come from people representing these special interests which make no sense, aren't in the bill, or are sometimes even offensive. While there may be individual Conservatives that support protection of human rights, the party isn't likely to put these individuals on the committee (or allow them to speak their conscience) as the current narrow policy focus of the Conservative Party seems to be on unimpeded and greatly subsidized resource extraction.
What is in the bill vs what people wish were in the bill
That feels like it should be simple!
I wish that as well, and now that I have learned the truth about Canada and its ongoing genocide, I am disgusted that Canada isn't what I was always told it was. I believed the propaganda that suggested that even if some mistakes were done in the past, that Canada is long past that -- this is false and human rights violations continue today.
I also have experience with the systems of Canada, and know how hard it is to get good policy passed through this system. Even if indigenous peoples and their many nations came together and drafted a consensus bill, and it was constitutional, I doubt such a bill would pass through parliament. Many First Nations people feel it is inappropriate for them to participate in Canadian politics (Two Row Wampum, etc), and with few indigenous politicians in Canadian governments what we are left with is largely oblivious settler politicians who won't be able to recognize the need to amend Canadian law such that it doesn't continue to violate human rights.
This all leads me to support a bill that will push the process forward, including to help Canadians to recognize that Canadian law and even the constitution needs to change for it to become the law abiding and human rights protecting country they think it is.
Actually implementing UNDRIP is a long process, but it will be longer if we aren't able to start. Any opposition to this bill because it doesn't do more that is outside of the design of this bill is effectively a delay. If we can't pass this level of bill, then I seriously doubt we can ever pass anything stronger. Only by passing this bill, and then the next, and then the next, will we ever see progress.
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