Private members bill an opportunity for Canadian leadership on the human rights of Indigenous peoples

Amnesty international is urging Canadian Parliamentarians to support Bill C-641, a private member’s bill to help implement the United Nations Declaration on the Rights of Indigenous Peoples.

Adoption of Bill C-641 would commit Parliament to “take all measures necessary to ensure that the laws of Canada are consistent” with the UN Declaration.

The Declaration, adopted by the UN General Assembly in 2007, consolidates existing international human rights protections into a framework of minimum standards for the “survival, dignity and well-being” of Indigenous peoples around the world.

In Amnesty International’s view, the Declaration is consistent with the overall direction taken by Canadian courts in their interpretation of the Constitutionally-protected rights of First Nations, Inuit and Metis peoples. In fact, Canadian courts have already used the Declaration to help interpret Canadian laws such as the Canadian Human Rights Act. Using the Declaration as a guide in the legislative process would help avoid many of the onerous and unfair court battles currently forced on Indigenous peoples seeking legal recognition and protection of their rights.

Unfortunately — despite publicly endorsing the Declaration in 2010 and joining international consensus statements committing to its implementation — the federal government has strongly rejected calls to ensure that new and existing laws and regulations live up to the standards set out in the Declaration.

Responding to Bill C-641, Mark Strahl, Parliamentary Secretary to the Minister for Aboriginal Affairs, claimed that accepting an obligation to implement the Declaration would have “the potential to cripple our economy.” Strahl stated, “While we acknowledge and uphold aboriginal rights, our government understands… that these rights must be balanced against the rights of other Canadians.”

West Vancouver MP John Weston was more explicit, characterizing the Declaration as creating “separate, opposed rights” for “a select few”.

These statements are not only misleading and inaccurate, they directly play on the very social divisions that government MPs claim to oppose. It’s hard to imagine internationally recognized human rights standards for any other group being described as a threat to “the rights of other Canadians.”

In fact, the Declaration does not create new or special rights. Instead it sets out minimum standards to ensure that existing rights are upheld without discrimination and are applied in a way that addresses the particular needs and circumstances of Indigenous peoples. Like other international instruments,  the Declaration is intended to provide guidance in reforming laws that are discriminatory and ensuring that new laws are consistent with international human rights principles.

Such guidance is particularly important with in respect to the situation of Indigenous peoples, where there is an urgent need to finally address the ongoing harm caused by past violations and to eradicate the legacy of colonialism that remains entrenched in too many government laws and policies.

Federal government spokespersons have been particularly critical of provisions in the Declaration that call for the free, prior and informed consent (FPIC) of Indigenous peoples on decisions affecting their rights. Mark Strahl characterized FPIC as “a veto over any sort of legislation or development that concerns them.”

Contrary to the extreme stand taken by the government, the FPIC standard is already widely established in international law, and has been accepted as part of the basic code of conduct of many international industry associations, investor groups, and bodies like the International Finance Corporation. Last year, the Supreme Court of Canada stated in its decision on Tsilhqot’in land rights that, as a starting position, government and industry should assume that decisions affecting lands owned by Indigenous peoples may require their consent.

Critically, the requirement to obtain consent has not been described as a “veto” in any of these instances.

The scenarios described by the federal government in which Indigenous peoples would use the Declaration to somehow exercise absolute, unilateral power is not only unrealistic, but also flies in the face of a clear history of FPIC of being understood, like almost all other rights, as requiring a balanced and objective case-by-case assessment of all the rights at stake, including those of non-Indigenous peoples.

In fact, the Declaration itself has extensive, overarching balancing provisions – which Canada helped draft – that clearly state that its standards must be interpreted and applied in a manner consistent with the goal of respecting the human rights of all.

The alternative to FPIC is for governments to continue to impose their will on Indigenous peoples, regardless of the consequences. This would not be consistent with the Canadian legal traditions the government claims to uphold, including the history of treaty making. Nor is it in the interests of Canada as a whole to continue to marginalize and impoverish Indigenous peoples by denying them the power to make their own decisions about their lives and futures.

Adoption of Bill C-641 provides an opportunity for the Canadian Parliament set its relationship with Indigenous peoples on a foundation of respect for human rights and the rule of law. It’s also an opportunity set a positive example for other countries where Indigenous peoples often face horrendous threats, violence and repression simply for identifying as Indigenous.

Bill C-641 was introduced in the House of Commons by Romeo Saganash, the MP for Abitibi—Baie-James—Nunavik—Eeyou.

Read Bill C-641

Read a detailed response to MP Mark Strahl’s comments in the House of Commons