Ebany Carratt is part of a team of CPCIL Research and Knowledge Gatherers producing content and compiling resources on themes such as inclusion, ecosocial justice, partnerships, conservation, organizational sustainability, climate change and biodiversity, connection to nature, conservation financing, and ecotourism, to support effective and equitable leadership and inclusion in parks and protected areas across Canada.

Photo courtesy of APTN News.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is one of the most important tools to advance lasting reconciliation, protect human rights and to right the wrongs of the past. 2021 marked over 10 years since the Canadian government agreed to endorse the UNDRIP after initially voting against it in 2007. So what have we accomplished in this past decade? Despite federal endorsement and even the Trudeau government agreeing to implement the UNDRIP into legislation in 2016, Canada has not accomplished as much as it should. While there have been some successes to implement the UNDRIP, such as British Columbia becoming the first jurisdiction to formally enshrine it into law in 2019 or the recent December 2020 proposal for Bill C-15, much of the traction for the UNDRIP has been rather slow in Canada. While I know that many would argue to celebrate these successes, no matter how small or late they are, many Indigenous activists and legal theorists alike are quite skeptical on whether the government is doing its best to honour the rights expressed within the UNDRIP. Some even question if the intentions behind these promises are true since very little action has actually taken place [1]. 

So what is the big issue? How could something that fundamentally emphasizes the rights of Indigenous peoples to live in dignity, to maintain their own institutions, to strengthen their cultures and traditions, and to pursue their self-determined development in keeping with their own needs and aspirations have such difficulty in a country that prioritizes human rights? While the answer to this question can surely fall on a multitude of reasons, I would argue that there is a major problem with confusion. Confusion on what the UNDRIP means, confusion on who should handle it, and confusion towards free, prior, and informed consent, are all contributors to the declaration’s controversiality. Like many other issues that perpetuate systemic inequalities, it all begins with colonialism and the lasting dynamics at play that prevents us from reaching reconciliation. 

What It Is and What It Is Not

According to the United Nations, “the Declaration is a significant tool towards eliminating the ongoing perpetuation of human rights violations against Indigenous peoples worldwide and assisting both actors and States in combating discrimination and marginalization” [2]. Importantly, the UNDRIP does not create new or special rights, instead, it provides an interpretation of the human rights enshrined in other international human rights codes as they apply to Indigenous peoples and their cultures. While the declaration is not technically legally binding in Canada, given that it represents a set of universally relevant legal standards, it still has somewhat of a binding effect for nations to move towards the promotion, respect, protection, and fulfilment of the rights of Indigenous peoples worldwide. This means that the UNDRIP will always be relevant to Canadians and our laws moving forward. 

Free Prior Informed Consent graphic
Photo courtesy of fao.org

Although it has been easy for governments to endorse the declaration or make vague promises about implementing it, there are a lot of difficulties when it comes to fulfilling free, prior and informed consent (FPIC). Quite possibly one of the most important rights established in the declaration and embedded in the right to self-determination [3], FPIC requires states to consult and cooperate with Indigenous people in good faith before implementing any decisions or legislation that may affect Indigenous lives [4]. Like any definition of consent, Indigenous people have the right to give, withhold, and even withdraw consent at any time. Importantly, it establishes that states and private groups must not coerce Indigenous people into providing consent, must ask for consent in advance within a respectful timeframe, and sufficiently informs Indigenous people of any social, economic and environmental impacts of the project (this is where consent may be withdrawn if new circumstances arise). Yet the special aspect of FPIC enables Indigenous communities to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated, allowing them a place at the table for important business decisions. 

A Failure In Attaining Consent

There are plenty of cases where rather than endorsing the UNDRIP, the Canadian government has done and supported actions that are contrary to obtaining free, prior and informed consent. This difficulty is directly tied to the popular (yet misinformed) conception that FPIC provides an “Indigenous veto” and UNDRIP is, therefore, a barrier to development. So let’s clear this up. There is nothing within the UNDRIP that implies or provides Indigenous people with the special right to generally veto any government project. It only gives them the right (which is also a protected human right for everyone) to say no to any decisions that involve a disruption to their lands, territories, cultures, and/or lives. The UNDRIP states:

When governments and corporations refuse to listen when Indigenous peoples say no, these Nations are faced with the difficult choice of continuing to oppose, including taking on the expense, risk and burden of a legal challenge, or trying to negotiate some benefit from a project about which they may have serious concerns [5].

In this circumstance, governments may exploit the unequal power dynamics that characterize colonialism and fail to achieve consent entirely. Even then, if Indigenous Nations exercised their right to say no, it would be in the best interests of all parties to look at alternative measures that would be consistent with international standards of human rights. Nevertheless, the issue with this matter does not end here, as there is currently a process of providing a Canadian interpretation of the UNDRIP and it will likely have significant connections to the Doctrine of Discovery and colonialism via our current legal framework.

The Supreme Court of Canada in Ottawa
The Supreme Court of Canada in Ottawa. Photo courtesy of Sean Kilpatrick/THE CANADIAN PRESS

It is no secret that Canada has “generations of case law asserting that it is within the exclusive sphere of power of the federal government to legislate in regards to Indigenous peoples” [6] and I could never sum this history up in a few paragraphs. So I want to shift my focus to the case of Ktunaxa Nation v. British Columbia, where an Indigenous group unsuccessfully petitioned the Supreme Court of Canada (SCC) to protect one of its most sacred sites in 2017, at a time when implementing the UNDRIP was promising in Canada. The case centered around Glacier Resorts’ plans to build a year-round ski resort in British Columbia’s Jumbo Valley, which was highly concerning to the Ktunaxa people. To the Ktunaxa, the Jumbo Valley (which they call Qat’muk) is a culturally sacred space and home to the Grizzly Bear Spirit. After nearly two decades of negotiations between developers, the government, stakeholders, and the Ktunaxa, the B.C. government approved development with Glacier Resorts in 2012. Eventually, the Ktunaxa opposed this decision, as they believed that the development would drive the Grizzly Bear Spirit away from Qat’muk. By causing this irreparable harm to their relationship with the Grizzly Bear Spirit, the area would therefore lose its religious significance and damage the possibility of Ktunaxa cultural and religious beliefs to be passed onto future generations. Given this outcome, the Ktunaxa argued that the project limited their Charter rights to religious freedom and the Crown failed in its duty to consult. 

 

Landscape view of the Jumbo Valley.
The Jumbo Valley. Photo courtesy of ecojustice.ca

The UNDRIP clearly states that Indigenous peoples have the right to withhold consent and the right to “maintain, protect, and have access in privacy to their religious and cultural sites” [10]. Yet, the Court’s decision did not interpret Canadian law to protect internationally relevant rights and was incapable to recognize the court’s own colonial and culturally Euro-Christian roots [11]. However, when the SCC held that Section 35 guarantees a process of consultation, but not a result or a veto, not only did it support the rhetoric that the Indigenous right to say no is subordinate to the Crown, but also alluded to the rise in the perception that an “Indigenous Veto” would be given as a special right to Indigenous peoples through the UNDRIP. Since this case, there has been a trend to reinterpret consent in the UNDRIP to conform with the Canadian standard of prioritizing the processes of consent, but not the outcomes [12].

Where Parks Comes Into Play

Despite the ruling in the 2017 case, the Ktunaxa Nation and the Jumbo Valley have still had a happy ending since the announcement in 2020 that Qat’muk would be formally recognized as an Indigenous Protected and Conserved Area (IPCA) and the construction of the ski resort was cancelled. However, the fact remains that the “Canadian Supreme Court’s decision to stick with its jurisprudence rather than use Ktunaxa to more closely align Canadian law with the UNDRIP suggests that governments must not rely upon courts to implement their UNDRIP obligations for them” [13].  From my time researching this issue, I felt annoyed at how our judicial and legislative branches are terribly slow, and even contradictory at times, to implementing the UNDRIP. Canada is failing Indigenous peoples on this front, which undermines reconciliation, and the UN agrees [14].

Grizzly Bear in Jumbo Valley
Photo courtesy of keepitwild.ca

The good news is that park leaders can also play an active role in advancing UNDRIP implementation. Yes, even in fields like conservation, considering Indigenous rights and the legal and political landscape of our nation is the right thing to do. Advocating for better protection of Indigenous human rights, respecting and honouring the principles of free, prior, and informed consent, decolonizing parks structures, and allowing Indigenous peoples to be active participants in parks management are all integral means to advance reconciliation and adopt rights-based approaches in parks.

However, I want to emphasize the fact that not only can parks and park leaders do these things, but that they should. Reconciliation can never be the duty of the few, but the many. The UNDRIP states, “Before we can achieve reconciliation between Indigenous Peoples and the Crown, we must first reconfigure the legal landscape to address the imbalances in decision making that privileges others over Indigenous Peoples”.

Parks will always have a history that involved undermining Indigenous rights and has been intertwined with the many colonial acts which continue to marginalize Indigenous and POC communities since the creation of our Nation. But it does not have to end here. Instead, Parks can take this time to reflect the beauty of the natural spaces it protects and channel it outwards in a way that not only heals the past but sets Canada onto a path for a brighter future by leading through example.  

If you want to learn more about our legal framework and reconciliation, you can click here for my previous blog or take a look at our infographic and glossary of different terms, cases, and laws that have been mentioned in this blog series.  

Citations

  1. Lightfoot, Sheryl. “Selective Endorsement Without Intent to Implement: Indigenous Rights and the Anglosphere.” The International Journal of Human Rights 16, no. 1 (January 1, 2012): 100–122. https://doi.org/10.1080/13642987.2012.622139.
  2. “United Nations Declaration on the Rights of Indigenous Peoples For Indigenous Peoples.” United Nations. United Nations. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.  
  3. United Nations. 2007. United Nations Declaration on the Rights of Indigenous Peoples; Article 3 
  4. United Nations. “Free, Prior, and Informed Consent: An Indigenous Peoples’ Right and a Good Practice for Local Communities .” Food and Agriculture Organization of the United Nations, 2016. https://doi.org/http://www.fao.org/3/a-i6190e.pdf
  5. “Free, Prior, and Informed Consent: Canada’s Obligations.” Canadian Friends Service Committee. https://quakerservice.ca/news/free-prior-and-informed-consent-canadas-obligations/
  6. Patzer, Jeremy. “Indigenous Rights and the Legal Politics of Canadian Coloniality: What Is Happening to Free, Prior and Informed Consent in Canada?” The International Journal of Human Rights 23, no. 1-2 (January 21, 2019): 214–33. https://doi.org/10.1080/13642987.2018.1562915 ;Page 220
  7. Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), (2017) SCC 54.
  8. Section 2(a) of the Canadian Charter of Rights and Freedoms 
  9. Section 35 of the Constitution Act, 1982 
  10. United Nations Declaration on the Rights of Indigenous Peoples; Article 12(1)
  11. “The Impossibility of Indigenous Religious Freedom.” Policy Options. https://policyoptions.irpp.org/fr/magazines/novembre-2017/the-impossibility-of-indigenous-religious-freedom/
  12. Patzer, Jeremy. “Indigenous Rights and the Legal Politics of Canadian Coloniality: What Is Happening to Free, Prior and Informed Consent in Canada?”; Page 227
  13. Robinson, Andrew. “Governments Must Not Wait on Courts to Implement UNDRIP Rights Concerning Indigenous Sacred Sites: Lessons from Canada and Ktunaxa Nation V. British Columbia.” The International Journal of Human Rights 24, no. 10 (November 25, 2020): 1642–65. https://doi.org/10.1080/13642987.2020.1747441; Page 1660
  14. “UN Human Rights Report Shows That Canada Is Failing Indigenous Peoples.” UBCIC. https://www.ubcic.bc.ca/canadafailingindigenouspeoples
  15. Rosanne Van Schie, & Wolfgang Haider. (2015). Indigenous-based Approaches to Territorial Conservation: A Case Study of the Algonquin Nation of Wolf Lake. Conservation and Society, 13(1), 72–83. https://doi.org/10.4103/0972-4923.161225
  16. “Why Are Indigenous Rights Part of Climate Action? And Other Questions about UNDRIP.” Environmental Defence, November 18, 2019. https://environmentaldefence.ca/2019/11/18/indigenous-rights-part-climate-action-questions-undrip/

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