Legal Eagle: UNDRIP
- Dawn Dumont | February 26, 2016
If you want people to think that you’re a smart Aboriginal, you should know - or at least be able to fake that you know - what the United Nations Declaration on the Rights of Indigenous Peoples or UNDRIP is: “Right the UNDRIP, very …uh…politically significant. I heard Angelina Jolie worked on it.”
Now is an excellent time to bone up on your UNDRIP because in the Trudeau government said that they will be implementing it.
The UNDRIP is a historically significant document that may improve the lives of millions of Indigenous people around the world. It was developed and passed by the United Nations. The UN is an international body so the UNDRIP falls under international law. When I went to law school, I wanted to be an international lawyer because I imagined it involved a lot of travelling in fancy suits – little did I know it also meant marrying George Clooney! (I settled for criminal law which, at best, dating a guy who beat a fraud charge.)
International law governs things like treaties and conventions which are legally enforceable legal instruments. The UNDRIP, however, is a declaration, not a treaty. A declaration reflects a commitment by countries to move in a certain direction under certain stated principles – they are not legally binding. Declarations are more like moral obligations like how you don’t use other people’s toothbrushes when using their bathrooms.
The United Nations defines Indigenous peoples as those who lived in a country or geographical region before an ethnically or culturally different people arrived. These new people then “became dominant through conquest, occupation, settlement or other means.” This definition of Indigenous peoples includes about 370 million people spread across 70 countries world wide. It includes groups such as the First Nations of Canada, the Endorois people of Kenya, the Mayas in Guatemala, the Aborigines and Torres Strait Islanders of Australia and the Maori of New Zealand. And out of all of these groups we all know that the Maori are generally considered the coolest.
The UNDRIP was adopted by the United Nations General Assembly in 2007. There were 144 countries in favour, 11 abstentions and four countries against. Those dicks were Australia, Canada, New Zealand and the United States. As late as 2014, Canada was the only United Nations member still refusing to commit to adopting the UNDRIP. But as mentioned above, Canada has now had a change of heart (or has acquired one?)
The UNDRIP is an effort to catalogue Indigenous historical grievances, modern challenges and socio-economic, political and cultural goals. It took 25 years to create. The writers make it clear that it doesn’t create new rights for Indigenous peoples, instead its goal is to stop the violation of existing Indigenous rights and inherent human rights.
So what’s in this bad boy? There are 46 articles in the Declaration addressing everything from land ownership to language protection to improvement of economic and social conditions to equality between the sexes. Article 45 also states that these are “minimum standards” so countries can treat Indigenous people better than the Declaration expects, y’know if countries wanted to show some initiative.
Implementing the UNDRIP will have huge implications for development across Canada. According to the law in Canada, governments have a “duty to consult” but under the UNDRIP, they must obtain “free, prior and informed consent.” This means that First Nations must be able to participate in decisions that affect their lives. They must be given all the information necessary to make a good decision and they should be given time to make that decision. They should also be able to use their own First Nation decision-making processes. And finally, the consultations end when First Nation communities and the government come to an agreement. This is a much higher standard than currently used by governments in Canada.
There are many noteworthy and timely aspects of the UNDRIP. Article 22 recognizes the special needs of women, children, elders and other vulnerable groups. It also acknowledges the need to combat discrimination and violence against them. Article 33 says that Indigenous peoples may determine their own membership which will have important implications for current Indian Act definitions of status.
Implementation of the UNDRIP can go further than governments. Corporations, courts, tribunals and educators should also implement the UNDRIP in their decision-making. I’m even implementing it on an individual basis – tonight my partner will be vacuuming the rug as per Article 44 citing gender equality (of course this means, I also have to cook dinner for once).