Friday, February 12, 2021

UNDRIP and Bill C-15 regulate Canada, not Indigenous peoples

I've been writing about association fallacies, and how they are leading to errors in analyzing UNDRIP, Bill C-15, and related laws.

Who created UNDRIP

UNDRIP is the result of decades of work, starting from the late 1970's, by Indigenous peoples worldwide.  This included many representatives of Turtle Island Nations and peoples.  The goal was to create policy which would regulate the behavior of nations which are not Indigenous nations.

It should not surprise anyone to know that the most offending nations, known collectively as CANZUS (Canada, Australia, New Zealand and the United States) would be actively opposing this human rights initiative. These foreign/foreigner created nations exist as an ongoing expression of White Supremacy.

These are nations where their colonization projects were so successful (meaning, so horrible and genocidal) that the foreign population and their descendants greatly outnumber the Indigenous population. Genocide is not what democracy looks like, so claiming that this demographic shift makes CANZUS nations democratically valid should be understood as morally offensive. It should instead be understood as the genocidal version of gerrymandering.


The legislative process at the United Nations was long and hard, and there was quite a bit of politicking at the UN to try to reach consensus as is normal for this type of policy.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly on Thursday, 13 September 2007. More details of the approximately 30 of years history, including the various meetings that lead up to the declaration, are available via the UN's UNDRIP page.

Once the declaration was passed, International pressure was exerted on the CANZUS countries to come into line, and years later the official positions of these governments changed. Some of the positions changed after the government changed.  All 4 of the CANZUS countries use democratic systems based on their British heritage as former British colonies.


Back bench members of Canada's parliament didn't wait for the official government position to change.  A quick look at the "Similar Bills Introduced in Previous Sessions" for Bill C-15 shows that several drafts of this style of bill were tabled before it was finally tabled as a government bill.

  • 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


Who/what does UNDRIP regulate

Reading UNDRIP and legislation that affirms UNDRIP it is clear to me what entities this policy regulates.

This is an International Indigenous initiative to regulate settler-colonial nations, and is not Canadian policy which regulates Indigenous nations or people.

Unfortunately there are people who have misunderstood the direction of this policy, and believe that it is a Canadian (or worse, CANZUS) initiative to further oppress Indigenous peoples.

UNDRIP and Bill C-15 explicitly include clauses which disallow this policy to be abused in that way.

Bill C-15 includes the following non-derogation clause (emphasis added):

2(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.

UNDRIP itself includes the following in Article 37 (emphasis added):

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Put another way, if a Canadian government (federal or provincial) tries to abuse UNDRIP or an affirmation law in a way that is harmful to the rights of Indigenous peoples, then that government is in violation of that law and human rights instrument.  If Canada is taken to court (domestic or international), it will lose for violating the law.

It is true that the existence of law doesn't stop governments from breaking the law. The fact that this is international law created to put international pressure on Canada means there will be consequences.  Canada violating this human rights instrument will have international relations impacts, likely including trade relations. My hope is that the UN will actively send human rights observers to Canada to monitor and internationally report on progress.  Canada has proven to not be trustworthy enough to be allowed to do this on it's own.

Canada promotes itself domestically and internationally as a law abiding nation, and a protector of human rights. The more it is recognized that this is a myth, the more pressure will be exerted (domestically and internationally) on the Canadian Government to stop its ongoing violation of human rights, and to make amends.

We can ask why, after the federal general election in 2015, the new Liberal government didn't table and pass this bill immediately.  That would be based on an association fallacy as this isn't a party partisan issue: The governments of Canada, provincial and federal, whether Conservative (progressive, united, whatever), Liberal or NDP, are not keen on this policy and are only bowing to international and domestic pressure.

Even after a Canadian government passes legislation, as happened in BC under an NDP government, there will be a desire to ignore it or find loopholes. The BC NDP government went so far as to claim the policy doesn't apply to activities before their bill 41 passed in 2019, which is nonsense given this policy actually applies to activities since the UN resolution passed in 2007.  The federal Liberal  government is likely to try the same type of dishonesty, but they will be in violation of the declaration and will lose in court.

To repeat: there is no lawful way for this policy to be interpreted to regulate or harm the rights of Indigenous peoples.  This is an International regulation of Canada, not a Canadian (federal or provincial) regulation of Indigenous peoples.

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