8 March 2023
The Implementation of UNDRIP in Canada and BC: What Does This Mean for Indigenous Women and Girls?
This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women’s Day 2023, to empower, celebrate, and encourage women in Canada.
On November 28, 2019, British Columbia became the first jurisdiction in Canada to incorporate the United Nations Declaration on the Rights of Indigenous Peoples (the “UNDRIP”), making the UNDRIP part of the laws of BC.
Just six months before this, on June 3, 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls presented its Final Report (“MMIWG Report”). The MMIWG Report identified that according to Statistics Canada, between 2001 and 2015, homicide rates for Indigenous women were nearly six times higher than for non-Indigenous women. The report also listed UNDRIP as one of the “tools” (“…technically binding or not…”) which can assist with holding governments to account in relation to further the rights of aboriginal women. But what is UNDRIP and how might it assist in furthering the equality rights of aboriginal women?
What is UNDRIP?
The UNDRIP is a comprehensive international instrument on the rights of indigenous peoples. It sets out basic human rights within an indigenous context and that those rights “constitute the minimum standards for the survival, dignity, and well-being of the Indigenous peoples of the world.” (Article 4)
The UNDRIP is not a treaty and does not clearly fall within the definition of customary international law, hence its legal effect is in and of itself is debatable. For this reason, British Columbia and Canada have passed domestic legislation to incorporate the UNDRIP into domestic law.
The British Columbia government has led the way in doing so, in the interests of reconciliation and in response to the recommendation of the Truth and Reconciliation Commission.
The Federal Government is at the consultation phase of implementation of its legislation. They are specifically seeking input from Indigenous Women’s organizations to ensure implementation of the UN Declaration responds to the needs and concerns of Indigenous Women.
The History of UNDRIP
Work began at the United Nations on the Declaration in 1982 and it was adopted by the UN in September 2007, with 143 countries in favour, 11 abstaining, 34 absent, and 4 countries (Canada, the United States, Australia, and New Zealand) against.
In 2010, all 4 countries opposed reversed their positions and endorsed the Declaration. Canada did so with reservations, noting that, while its original concerns remained, Canada was “confident the principles in UNDRIP can be expressed in a manner consistent with our Constitution and legal framework”.
In 2016, Canada confirmed that it was now a full supporter of the UNDRIP, without reservations.
In April 2016 MP Romeo Saganash brought forward a private members’ bill, “An Act to Ensure that the Laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples” (Bill C-262). The bill was before the Senate in 2019 when Parliament was dissolved for the last election. The government of Canada passed UNDRIP legislation on June 21, 2021.
Implementation of the UNDRIP in Canada, as in BC, provides an opportunity for reconciliation, based on a re-set of the relationship between Indigenous and non-Indigenous peoples, given the recognition within the UNDRIP of Indigenous rights as basic human rights, rights that historically, have not always been respected. The implementation of UNDRIP, as has been acknowledged in BC, represents a significant step toward reconciliation, based on the recognition and acceptance of the Indigenous rights set out within the Declaration. The implementation of UNDRIP would move us away from the status quo when it comes to dealings between indigenous and non-indigenous peoples.
A unique feature of the BC legislation is the opportunity enshrined to enter into agreements with Indigenous governing bodies to jointly exercise a statutory power of decision-making (section 6). This has quite successfully been a feature in a limited manner within the forestry sector in BC and is being expanded, by agreement with groups in BC allowing for further cooperation between Indigenous and non-Indigenous governments. (See most recently the Tahltan Consolidated Shared Prosperity Agreement)
The UNDRIP is comprised of 46 articles, the bulk of which are incontrovertible and non-contentious statements of basic human rights to be afforded Indigenous peoples. Indigenous women’s rights need to be included and recognised as basic human rights. This must include recognition of the right to live without fear of violence. The work and recommendations concerning Indigenous women and girls spelled out in the Calls to Action of the Truth and Reconciliation Commission and the input received from Indigenous peoples in the finalization of the Report and Recommendations arising from the Missing and Murdered Indigenous Women and Girls Inquiry should be taken into account in the consideration of UNDRIP being implemented in BC and Canada.
Canadian courts have yet to consider the UNDRIP as a part of Canadian or provincial law; Indigenous leadership has voiced expectations as a result of the recognition of the right to free., prior and informed consent and will expect to see immediate changes in government decision-making processes.
Continued dialogue and consultation with Indigenous groups and non-Indigenous sectors potentially impacted by the implementation of UNDRIP into domestic laws will be key in managing expectations and ensuring a smooth transition.
The work of the TRC and the MMIWG should be kept in mind by governments as they work to implement UNDRIP legislation so that the recognition of Indigenous rights as human rights clearly includes the rights of Indigenous women and girls.
It remains to be seen what influence if any UNDRIP will have in affecting change when it comes to the extremely vulnerable conditions facing aboriginal women and girls in Canadian society.
Section 10.1 of the MMIWG sets out a clear call to action to lawyers and law societies:
Calls for Attorneys and Law Societies:
10.1 We call upon the federal, provincial, and territorial governments, and Canadian law societies and bar associations, for mandatory intensive and periodic training of Crown attorneys, defence lawyers, court staff, and all who participate in the criminal justice system, in the area of Indigenous cultures and histories, including distinctions-based training. This includes, but is not limited to, the following measures:
i All courtroom officers, staff, judiciary, and employees in the judicial system must take cultural competency training that is designed and led in partnership with local Indigenous communities.
ii Law societies working with Indigenous women, girls, and 2SLGBTQQIA people must establish and enforce cultural competency standards.
iii All courts must have a staff position for an Indigenous courtroom liaison worker that is adequately funded and resourced to ensure Indigenous people in the court system know their rights and are connected to appropriate services.
In response to the Truth and Reconciliation Commission’s Call to Action, the Law Society of B.C. created the “Indigenous intercultural course” which is a six-hour training program mandatory for all lawyers in British Columbia to complete by January 1, 2024. The course is designed to help B.C. lawyers increase their Indigenous cultural awareness and understanding.
The CBA has also launched educational programs for lawyers including The Path: Your Journey through Indigenous Canada, which is an online course on the history and contemporary realities of First Nations, Inuit and Métis in Canada.
Meet The Author
Anita is Associate Counsel at Watson Goepel LLP. Her practice focuses primarily on Indigenous Law, with a portion dedicated to the area of Immigration law. Having worked in the public sector for over 25 years, the last ten as Director General, Treaties and Aboriginal Government Negotiations West, for the former Department of Indigenous & Northern Affairs, Anita brings a wealth of experience and perspective to her Indigenous practice.
Anita assists and advises a variety of clients with matters related to issues of Indigenous self-government, economic development, governance, and engagement, consultation and accommodation. She is an accomplished negotiator, consensus builder and problem solver.