Saturday, January 16, 2021

Fact Checking the 2019 Liberal platform commitment on UNDRIP

Prior to the 2019 federal election I wrote an article discussing what Justin Trudeau and the 2015 Liberal platform team did wrong on electoral reform.  The short form is that either the platform team was completely ignorant of the complexities of electoral reform and the differing (sometimes opposing) criteria for success, or they were deliberately misleading potential voters about what the party executive was intending to do.

The 2019 platform commitment

Given my recently discovered interest in decolonization, I wanted to offer something similar for the 2019 Liberal Platform Commitments relating to The UN Declaration On The Rights Of Indigenous Peoples.

Quoting from their platform:

We will take action to implement the United Nations Declaration on the Rights of Indigenous Peoples in the first year of a new mandate.

This is a very poor start.  Anyone who understands UNDRIP and Canadian law recognizes that a constitutional amendment is required to fully implement UNDRIP. It should be obvious that a constitutional amendment can't be made within a year, and isn't made alone by the federal government, so this statement is nonsense. Like the 2015 campaign platform statements on electoral reform, this statement indicates either incompetency or dishonesty, neither of which can be seen as positive.

While the statement was nonsense, they still broke their platform commitment given they did not table an UNDRIP related bill until the second year of their mandate, in the second session of parliament (after a second speech from the colonial throne).

Canada’s Truth and Reconciliation Commission said that the UN Declaration on the Rights of Indigenous Peoples charts a path “for reconciliation to flourish in 21st century Canada.” The last Conservative government dismissed it as an “aspirational document,” and Andrew Scheer blocked legislation to implement the Declaration – Bill C-262 – from being voted on in the Senate.
Bill C-15 was tabled on December 3, 2020, and is effectively a re-tabling of  Romeo Saganash's bills that sought to start the process towards making Canadian law consistent with UNDRIP.  Since it isn't possible to implement UNDRIP with a bill tabled in the House of Commons, Romeo and anyone familiar with the process would never claim that a single bill or series of bills alone can implement UNDRIP.

Romeo's bill, at that time numbered C-262, passed all stages of the House of Commons (first reading, second reading, committee, report, third reading), but was filibustered by Senate Conservatives so the bill would not become law before the 2019 general election.

The Liberals sorta fulfilled this part of the platform in that they eventually re-tabled Romeo's bill.  Unfortunately, they waited and did it in December 2020 when people were already discussing the possibility of a general election in the spring. It should have been tabled a year earlier, soon after the election.

Romeo Saganash's take:


While I still have hope, I worry that this analysis is correct and there will be an election before this bill can pass the house again and make it through the Senate.  The Liberal executive isn't going to be motivated to pass as they want to dangle this in front of human rights activists yet again during an election.  Their campaign team might claim we need to vote for Liberal candidates so that they can yet again go through the motions of saying they are trying to do the right thing, rather than a possible Conservative government who will outright oppose human rights.

The last paragraph of the commitment was:

We will move forward with introducing co-developed legislation to implement the Declaration as government legislation by the end of 2020. In this work, we will ensure that this legislation fully respects the intent of the Declaration, and establishes Bill C-262 as the floor, rather than the ceiling, when it comes to drafting this new legislation.

There is that phrase "implement" again, which is simply not possible.

While there were some amendments made in the drafting language of Romeo's bill from the earlier version, it is important to realize that this is not a new bill, a Liberal bill, or a Trudeau bill, but a re-tabling of Romeo's previously passed bill with a few amendments.

I will likely do a clause-by-clause commentary at a later date, but my comparison of the differences is that Bill C-15 largely provides additional clarity which will be helpful for judges using it to help frame the interpretation of other laws. The Assembly of First Nations created a bulletin which lists the changes between C-15 compared to C-262 previously passed.

I think the overall structure and concept of Romeo's bill was co-developed over a long period of time, even if the specific recent amendments weren't.  This Bill is only documenting the beginning of a process and can't itself be claimed to respect the intent of anything other than launching a process. Whether that process eventually respects the declaration is work yet to be seen from the process.

Given this is a re-tabling of a bill that had already passed the House of Commons, I don't personally see a need to consult yet again or have debate beyond what is required on the amendments. What is needed is to quickly pass the House of Commons again and ensure that the Conservative senators are not able to filibuster a second time.

So, what now?

The Liberals might not be motivated to quickly pass this bill before the next election, and the Bloc and Conservatives aren't going to support it for ideological reasons.

However, this is a minority parliament, and it is possible that the NDP and Greens can be convinced to help.

The NDP could put passing C-15 in the House of Common and using all the government influence to pass through the Senate as a condition of support for other Liberal legislation. While for partisan gain the NDP might like to show the Liberals breaking another promise, I believe there are sufficient NDP MPs that respect Romeo Saganash's work to push this forward anyway.  Having this bill pass now, and to impose additional pressure on future governments to move forward on human rights, will be a major policy win for the NDP even if not a partisan win.

Federal information about the 24 MP's in the NDP caucus , as well as the 3 MPs in the Green caucus, is available on the House of Commons website.  It is quite quick to grab their email addresses and send a letter to each of them indicating your desire for them to use any political pressure they can to get C-15 into law.

Regardless of their party affiliation, I also suggest sending a letter of support to your own member of parliament.  The House of Commons website has a search interface which allows you to type in your postal code to find them if you have never written before.

If you wish to write a letter, but have never done that before, I am happy to help.


The larger context the platform ignored

People who are familiar with truth, reconciliation, and decolonization will know that this is a longer process.  Passage of Romeo Saganash's bill is only an early step in that process.

One of the best summaries I've seen of the larger process is "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.


1. The first step is a simple one and has been advocated by both the RCAP and the TRC: Formally denounce the racist doctrine of discovery and terra nullius as justifications for settler presence on our lands, as well as any other doctrines, laws or policies that would allow you to address us on any other basis than nation to nation.

This is the step we are at now, and where the process described in Romeo Saganash's bill is important. The bill itself doesn't explicitly denounce the racist doctrine of discovery and terra nullius, but does include some relevant clauses in the preamble.  Contrary to what others have suggested, Article 13 of the interpretation act indicates that the preamble is important.

From the first reading of C-15:

Whereas all doctrines, policies and practices based on or advocating the superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust; 
Whereas the Government of Canada rejects all forms of colonialism and is committed to advancing relations with Indigenous peoples that are based on good faith and on the principles of justice, democracy, equality, non-discrimination, good governance and respect for human rights;

The bill will force current and future government movement on changing laws and policies that currently treat indigenous peoples other than on a nation to nation basis. A future government may want to move backwards, but given this process will receive international attention it will expose Canada in a light that few politicians wish to admit.

Also from the first reading:

(2) This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them

This clause ensures that interpretation of law that uses this bill is placed in the context of section 35 treaty rights. This does not say that UNDRIP itself (A UN Declaration) is below the constitution as some have suggested, and does not itself place First Nations as a fourth level of government (below municipalities).

Other government policies and procedures might be attempting to push in different directions, but that needs to be though of as separate from this specific bill. "The Government" isn't a monolithic thing, and different parts of the government contradicting each other isn't all that unusual. Often people refer to the government by a person's name (Trudeau Government, Mulroney Government, Chr├ętien Government, Harper government, a different Trudeau Government), but that only describes a time period as the government is made up of many thousands of people regularly doing different things.

As an important example, search for and read about the "Indigenous Rights, Recognition and Implementation Framework", such as an article by Russ Diabo. the overview from the Yellowhead institute, or an article in Policy Options. This is problematic policy that is happening at the same time as this bill which demonstrates we can't trust the government as a whole, but isn't text within the bill itself or reason to reject this specific bill.


Passage of this bill can be used to help fix some of these contradictions, and we can't (or shouldn't) expect everything to be solved in a single bill.


Romeo's bill is important to launch a process, but does not complete this first step in the six-step program.

It is worth being aware of the long journey we have before us once that bill is passed, and as Canada moves through additional recommendations from RCAP and TRC.

Continuing the next of the six-step program:

2. As part of the nation to nation negotiation you must, logically, recognize our right to self-determination, which is the essential decolonizing remedy to move Indigenous peoples from dependency to freedom.

There are more than 630 First Nation communities, representing more than 50 nations, on this northern part of Turtle Island. There are also several unions/confederacies bringing some nation together for hundreds of years, demonstrating far more success than the European Union where Brexit demonstrates an inability to remain stable for more than a few decades.

I have been following one confederacy fairly closely.

Canada must reverse it's attempt to remove the participatory democratic Haudenosaunee Confederacy (five nations possibly in 1142, six nations as of 1722) tribal council. The Canadian government forcibly replaced a democracy with a so-called "elected" band council that is undemocratic and is only responsible to the Government of Canada (the Canadian Crown).

Canada can't pretend to respect basic concepts of democracy domestically or internationally while it has sent in the RCMP to forcibly dissolve democratic governments and install foreign government bureaucracies.

While the democratic confederacy council still exists and is still the only legitimate body that can represent the Haudenosaunee peoples, the Governments of Canada (federal, provincial and municipal) refuse to recognize the concept of responsible government.

This is only one example among many where Canada has continued to act as a strong opponent of democracy, freedom, and human rights. While Canadians like to talk about pro-democracy freedom fighters overseas, they seem unwilling to do their part to support the pro-democracy freedom fighters whenever Canada is the aggressor.


Continuing the steps in the six-step program:

3. Acknowledgement of our right to self-determination must be according to international human rights standards and include ecological and equitable development principles, Indigenous knowledge systems, laws, relationships to land, world views, technologies, innovations and practices and, of course, recognition and affirmation of our Aboriginal title and rights to the lands that the Creator has given each nation and which we have inhabited since time immemorial.

4. At this point we can finally sit down together for the long, grown-up talk about who we are and what we need, and who you are and what you need, and w can then begin to sort out the complicated questions about access to our lands and sharing the benefits. These talks can, indeed, lead to reconciliation, but only after our rights as title holders and decision makers on the land and our economic and cultural needs are met.  We in turn will ensure that your every real human right to be here after for hundred years is respected and your economic and cultural needs are also met.

5. Anything that we agree to in access and benefits must also include clear jurisdictional lines of authority based on the standard of free, prior and informed consent of Indigenous peoples and decision making that incorporates environmental reviews and oversight in accordance with Indigenous laws.

6. In concrete Canadian terms, Section 35 of the Canadian Constitution must be made to comply with Article 1 of the ICCPR/ICESCR and Article 3 of UNDRIP and all of the colonial laws must be struck from Canadian books, thereby implementing the Indigenous right to freely determine our own political status and freely pursue our economic, social and cultural development.

Please notice that amendments to the Canadian constitution, which is required to fully implement UNDRIP, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is the last step and not the first.  This is a process that will require international oversight, given Canada has not been acting in good faith or in accordance with international law or norms.

We are talking about many decades (possibly generations) of hard work, so it is completely ludicrous for any policy maker to have suggested they could do this in the first year of any government mandate.

There are many people who have tried to take this platform at its word, and then noticed everything that is totally missing if we were to pretend the bill is at Step 6.  Everything from steps 1 through 6 are missing from this bill, but that isn't so much a problem with the bill itself but the dishonest marketing from the leader and platform team.

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