Submission to the Standing Committee on Indigenous and Northern Affairs House of Commons Parliament of Canada Study on 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 April 16, 2018 Sheryl Lightfoot Canada Research Chair of Global Indigenous Rights and Politics Acting Chair, First Nations and Indigenous Studies Acting Co-Director, Institute for Critical Indigenous Studies Associate Professor, First Nations and Indigenous Studies and Political Science University of British Columbia, Vancouver “Effective implementation of the Declaration will be the test of commitment of States and the whole international community to protect, respect and fulfill indigenous peoples collective and individual human rights. I call on governments, the UN system, Indigenous Peoples and civil society at large to rise to the historic task before us and make the UN Declaration on the Rights of Indigenous Peoples a living document for the common future of humanity.” -Victoria Tauli-Corpuz, Chairperson of the United Nations Permanent Forum on Indigenous Issues on the Occasion of the Adoption of the UN Declaration on the Rights of Indigenous Peoples, September 13, 2007 In the celebrations immediately following adoption of the UN Declaration on the Rights of Indigenous Peoples by the General Assembly on September 13, 2007, minds were already turning to crucial questions of its implementation, both on the international level and in domestic contexts. The UN Declaration, which calls on all states to fully restructure relationships with Indigenous peoples, was a transformational moment in world politics. As Victoria Tauli-Corpuz, Chairperson of the UN Permanent Forum on Indigenous Issues noted in her celebratory remarks on passage of the UN Declaration: This is a Declaration which sets the minimum international standards for the protection and promotion of the rights of Indigenous peoples. Therefore, existing and future laws, policies and programs on indigenous peoples will have to be redesigned and shaped to be consistent with this standard.1 In the decade since its passage in the UN General Assembly, the UN Declaration has gained universal consensus as an international human rights instrument and has been reaffirmed by consensus eight times in the General Assembly.2 A report to the Human Rights Council by the Expert Mechanism on the Rights of Indigenous Peoples on the ten year progress of the UN Declaration noted that it now informs the work of many global actors, has influenced the drafting of multiple new state constitutions and statutes and contributed to the development of laws and policies pertaining to Indigenous peoples worldwide.3 A similar ten-year anniversary report by the Permanent Forum on Indigenous Issues recounted progress in the areas of increased constitutional recognition of Indigenous peoples and a growing body of jurisprudence including 1 Victoria Tauli-Corpuz, “Message by the Chairperson of the UNPFII on the Occasion of the Adoption of the UNDRIP,” Sept 13, 2007. 2 Paul Joffe and Sheryl Lightfoot, “Legislative Framework Essential for UN Declaration,” The Hill Times, January 10, 2018, p. 13. 3 UN Human Rights Council, Ten Years of the Implementation of the United Nations Declaration on the Rights of Indigenous Peoples: Good Practices and Lessons Learned – 2007-2017, A/HRC/EMRIP/2017/CRP.2 (July 10, 2017.) 2 important legal victories for Indigenous rights in Belize, Indonesia, the African Commission, Bangladesh and the Caribbean Court of Justice.4 Even with these positive steps, however, full implementation of the UN Declaration remains elusive around the world and in Canada. Even in countries with strong legal frameworks for supporting indigenous peoples’ rights and wellbeing, severe implementation gaps remain between legal recognition and concrete action steps on the ground and therefore, actual implementation on the rights of Indigenous peoples has been limited.5 Barriers to implementation, common to all states with indigenous peoples, include difficulties operationalizing Indigenous rights due to lack of awareness about the rights and standards, difficulties in identifying practical steps for implementation, and conflicting interpretations of the content of Indigenous rights.6 The 2014 UN Special Rapporteur’s report on Canada’s implementation progress noted “the numerous initiatives that have been taken at the federal and provincial/territorial levels to address the problems faced by Indigenous peoples have been insufficient.”7 Yet, as New Democratic Party Member of Parliament Romeo Saganash (Abitibi-- Baie-James--Nunavik—Eeyou) has aptly pointed out, “Implementation of the Declaration is a political, moral and…legal imperative, without qualification.”8 Need for Legislative Frameworks in Implementation Efforts As a consensus international human rights instrument, former UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya stated, the UN Declaration “reflects legal commitments that are related to the UN Charter, other treaty commitments and customary international law.”9 As a pivotally important international human rights instrument, states then have a political and moral obligation to implement it in domestic law and policy. The United Nations General Assembly has called for full implementation of the UN Declaration at both the national and international levels. Implementation of Indigenous rights in domestic settings is expected to be comprehensive and systematic. It has always been thought to include judicial, policy reform and legislative avenues, the synergy of which will lead to full implementation. As the text of Article 38 of the UN Declaration states: “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.” As former UN Special Rapporteur on the Rights of Indigenous Peoples Rodolfo 4 UN Permanent Forum on Indigenous Issues, Tenth Anniversary of the United Nations Declaration on the Rights of Indigenous Peoples: Measures Taken to Implement the Declaration, E/C.19/2017/4 (February 7, 2017.) 5 Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (Abingdon, UK: Routledge, 2016.) 6 UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli- Corpuz, A/HRC/27/52 (August 11, 2014.) 7 UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, Addendum, The Situation of Indigenous Peoples in Canada, A/HRC/27/52/Add.2 (July 4, 2014) ¶81. 8 Debate on Private Member’s Bill C-641, United Nations Declaration on the Rights of Indigenous Peoples Act, House of Commons Debate, May 4, 2015 (Statement by Romeo Saganash). 9 UN General Assembly, Situation of Human Rights and Fundamental Freedoms of Indigenous People, A/65/264 (August 9, 2010) ¶62. 3 Stavenhagen wrote, “the rights in the Declaration can be seen as a framework of reference, a point of departure leading perhaps, among other things, to new legislation, to a different kind of judicial practice, to institution building and also, whenever necessary, to a different political culture.”10 As Stavenhagen describes it, a process of “glocalization” will occur where global level standards like the UN Declaration influence and contribute to changes in national and local-level political processes and “it is precisely at the regional and country levels that the rights of the Declaration must be made to apply.”11 The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) 10 year report on UN Declaration implementation reads: “As States have the principal responsibility for adopting legislative measures and public policies to implement the rights recognized in the Declaration (article 42), they should adopt measures to achieve this aim, including through the implementation of recommendations and decisions of all human rights bodies referred to above.”12 As the UN Special Rapporteur noted in her 2017 report to the General Assembly, The effective implementation of the rights of indigenous peoples requires States to develop an ambitious programme of reforms at all levels to remedy past and current injustices. This should involve all the branches of the State, including the executive, legislative and judiciary, and implies a combination of political will, legal reform, technical capacity and financial commitment. Implementation should be measured against compliance with these requirements, and not on the basis of rhetorical claims of commitment or isolated measures.13 The Handbook for Parliamentarians on implementing the UN Declaration, published by the Inter-Parliamentary Union and several UN agencies, cites the lawmaking role of parliaments as particular importance in the implementation of the UN Declaration. The Handbook suggests that legislative review and reform are essential first steps in implementation efforts and that all future national legislation should be evaluated for compliance with the UN Declaration as an ordinary part of the legislative process.14 The Handbook provided existing examples of national implementation legislation already adopted by Bolivia in 2007 and the Republic of Congo in 2011. A similar manual for national human rights institutions states that national legislation is an important first step toward domestic implementation, but “legislation alone is generally not sufficient” and so a national action plan should also be