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Newspapers reported earlier this month that Alberta’s new Premier, Rachel Notley, has instructed her cabinet ministers to come up with a plan for their respective departments to implement the United Nations Declaration of the Rights of Indigenous Peoples (“UNDRIP”).  This is welcome news.  Premier Notley’s decision will make Alberta the first jurisdiction in Canada to implement a key recommendation of the Truth and Reconciliation Commission (“TRC”), walking the talk about making changes necessary for our aboriginal communities to heal.

In his blog following the announcement, OKT’s Larry Innes emphasized the hard-work needed to ensure the declaration is meaningfully adopted. This work needs to overcome the status quo of indifference that made UNDRIP and the TRC recommendations necessary in the first place, and challenges their implementation now.

A necessary tool in this work is the principle of self-determination.  It is important the principle is well understood. It has a long and studied history that, properly appreciated, will clarify the approach needed to move forward.   If we are serious about improving the relationship between Canada and its first peoples, the next steps that are taken must be grounded in this principle.      

The History

Firstly, it is important to understand self-determination’s history. It arose to rationalize the existence of the nation state: to justify the American and French revolutions of the late 1700s; to encourage the unifications of both Germany and Italy a century later; and to create the League of Nations following WWI.  Legitimizing an alternative to rule-by-conquest, these influences coalesced in the drafting of the Atlantic Charter in Placentia Bay, Newfoundland in 1941, an allied statement of solidarity against Nazi expansionism.  The Atlantic Charter defined the goals for a post-war world and proclaimed “the right to self determination of all peoples” as one of its eight core principles. Following Japan’s attack on Pearl Harbour, self-determination would be even more widely adopted as a fundamental premise of the Charter of the United Nations. 

From here, self-determination would go on to form the moral and political justification for the withdrawal of colonial governments from Asian and African nations through the 1960s. It served as a guide to the UN in the exercise of its powers and functions through the proxy wars of the cold-war era. During this period, the principle was refined through a series of UN General Assembly resolutions, embodied in the Covenant on Civil and Political Rights and Covenant on Economic, Social, and Cultural Rights, and underpinned peace treaties to maintain stability in international relations.

But the post cold-war era of the UN has been characterized by a shift beyond the exclusive protection of states to a focus on the living conditions of each person inside them.  In 2001 former UN Secretary General Kofi Annan announced an end to state-sovereignty as a shield for gross violations of human rights and a return of the UN to the founding words of its charter: “We the Peoples”.  Among other things, this shift would serve to balance the unprecedented expansion of multinational business with trans-border accountability for its impacts. This coincided with increased focus on the rights of indigenous people, who have experienced unique and increasing vulnerability as their lands and resources have been transformed, encroached on, and degraded over time. It is in this modern context that UNDRIP was adopted.

The Content

The association with independent statehood meant self determination was a contentious topic during UNDRIP’s negotiations. But the history shows us the principle has evolved. Consistent with the UN’s shift from state to individual, former UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya eloquently explains in his chapter of Making the Declaration Work that self determination is a human right rather than a right of sovereigns.  Under a human rights approach, independent statehood is, at most, instrumental to the realization of the right as a measure of last resort – it is not the essence of self-determination for peoples.

Rather, what is key is the full and equal participation of indigenous peoples in building and implementing the governing institutions under which they live. As the TRC’s recent findings clearly detail, it is during the times of Canada’s history when this participation was absent that the greatest harms against our aboriginal people have been wrought.  From lands and resources, to education, to housing, to nutrition, to the criminal justice system, getting this participation right must be Alberta’s focus now.

UNDRIP is foremost a remedial document for people that have been denied rights the rest of us enjoy.  Mr. Anaya explains that the declaration exists “not to condone vengefulness or spite for past evils, or to foster divisiveness, but rather to build a social and political order based on relations of mutual understanding and respect.”   Article 46 of the declaration, which upholds territorial integrity of existing states, was included to ensure the focus remains thus. Self-determination guides how these remedies are to take shape: namely, in consultation and cooperation with our aboriginal people, genuinely reflecting their will, and framed by (i) self-government over their own affairs and (ii) full participation in the political, economic, and cultural life of Canada.

Lands and Resources, where to start?

In moving to adopt the declaration, Premier Notley has acknowledged the challenge that surrounds discussions related to lands and resources. Directing her cabinet ministers to form working groups and consult with aboriginal leaders is a good first step. But for discussions to be useful there must be deep appreciation that the well-entrenched status quo needs fixing.  First and foremost, self-determination provides the grounds to reform existing state practices.   In terms of lands and resources, the initial goal of these reforms should be to implement a regulatory environment that is conducive to consent.  This means discussions about shared decision making and revenue sharing, an examination of the many jurisdictions around the globe that have successfully adopted similar arrangements, and implementing a collaborative solution.  This work can’t start soon enough.

By Oliver MacLaren

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