If Indigenous people exercise their right to say no ... then what?

About 20 years ago, Wilton Littlechild, then a regional chief, took the podium at the annual chiefs’ assembly to talk about the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP). It cleared the room. Chiefs and reporters left to grab a coffee or have a smoke.

The drafting of an “aspirational” list of Indigenous rights just didn’t seem … well, compelling. And frankly, the idea had been percolating at the United Nations since 1982 with little progress. You can forgive us for overlooking it. I mean, Littlechild didn’t even have a PowerPoint.

In between then and now, UNDRIP has become — depending on your politics — a key to transforming Canadian laws in an extraordinary act of reconciliation or a “bogeyman,” as Métis leader David Chartrand recently quipped.

On the reconciliation side are the Liberals, the NDP and national leaders of Indigenous organizations representing First Nations, Métis and Inuit. On the bogeyman side: Conservatives who say Bill C-15 will give Indigenous people too much power and a large group of grassroots Indigenous Peoples who say the opposite — the “Canadianization” of UNDRIP will erode their rights.

Let’s start with the Conservatives.

They never liked UNDRIP.

UNDRIP is 46 succinct paragraphs recognizing Indigenous rights, crafted by a diverse group of Indigenous Peoples from around the globe. This includes Indigenous rights to control our own education, practise our culture and maintain our political, economic and social systems. Those ideas are already risqué in Canadian political thought.

But the real “bogeyman” in UNDRIP for Conservatives and industry are the rights of self-determination and control over traditional lands and resources that require governments to obtain “free, prior and informed consent” before development occurs or legislation is passed. This all sounds scarily like a veto power, except UNDRIP was not supposed to be binding.

UNDRIP became a politically interesting news story after September 2007. Not because it was adopted by the UN, but because Canada, the United States, New Zealand and Australia voted against it (144 countries voted in favour, 11 abstained).

Journalists do love a mystery, and this was a brainteaser. Why was Canada, then under Stephen Harper’s leadership, rejecting a document that had no legal force and seemed to amount to no more than a lovely thought? Hard lobbying by Indigenous leaders eventually led all four holdouts, including Harper’s government, to reverse their decision and adopt UNDRIP as the “aspirational” document it was said to be.

It should have ended there, like a warm hug. But it didn’t.

Instead, UNDRIP went from an inspirational pamphlet to a roadmap for reconciliation — at least for the Liberals, NDP and some Indigenous leaders.

That surprise twist came in June 2015. Canada’s narrowly mandated Truth and Reconciliation Commission — for which Littlechild was a commissioner — produced a royal commission-sized report that mentioned UNDRIP 25 times in its recommendations and called for all levels of government “to fully adopt and implement” UNDRIP.

Even more surprising, newly minted Liberal Leader Justin Trudeau offered "unwavering support" for every one of the report's recommendations.

Of course, that was before the 2015 election.

We believe election promises at our peril. And wannabe PMs say the darndest things.

Surprisingly, Prime Minister Trudeau stuck to his speaking points post-election at the United Nations General Assembly in New York in 2017, declaring UNDRIP was “not an aspiration” but “a way forward,” committing that Canada was now “a full supporter of the declaration, without qualification.” There was applause.

Around that time, then NDP MP Romeo Saganash, who is also Cree and a lawyer, decided to test the Liberals’ resolve. He introduced a private member’s bill to harmonize all federal laws with the rights recognized in UNDRIP. The majority Liberal government passed it in the Commons; Conservative senators stalled it in the Senate. The bill died on the order paper when Parliament dissolved for the 2019 election.

Last week, the Liberals introduced an updated version of Saganash’s bill. Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, will eventually make Canadian laws compliant with the rights in UNDRIP.

Over time, UNDRIP would move from an aspirational document to a prescription for Canadian laws, which the Liberals described as a full recognition of Indigenous rights. But that will be a hard sell to the political right, industry and grassroots First Nations.

Conservative Leader Erin O’Toole is not an UNDRIP fan any more than his predecessors were. He told APTN that free, prior and informed consent sounds too much like a veto over development for his liking.

Tom Flanagan, a political scientist and senior fellow of the Frontier Centre for Public Policy, agrees.

In his report, Squaring the Circle: Adopting UNDRIP in Canada, Flanagan explains that a Supreme Court ruling stating Indigenous people must be consulted on development and their concerns considered, does not give them a veto. And he likes it that way. His problem is he fears Bill C-15 opens the door to veto power.

Flanagan has spent enough time working with Indigenous people to understand us, even if he doesn’t agree with us. Most Indigenous people believe they already have a right to self-determination, and a veto regardless of what Canada’s Supreme Court thinks. Recently the phrase “rule of law” has made its way into the Conservative party’s media lines in an attempt to delegitimize Indigenous demonstrations over disputed land.

The Indigenous comeback line is: “Whose rule of law is it, anyway?” Indigenous people do not believe blockades are illegal. They believe they are upholding the law — their law. The law in treaties. The law in Section 35 of the Constitution. First Nations that never signed treaties or ceded land will tell you they are following traditional laws and that since they never signed a deal with Canada, Canada has no legal authority over them.

And these days, some point to UNDRIP as a way to cement self-determination. In his book, The Reconciliation Manifesto, the late Shuswap leader Art Manuel wrote: “The right that UNDRIP confers on our peoples is a declaration of independence of our nations within the Canadian space.”

Sovereignty, but not separation. That is Manuel’s definition of reconciliation. It’s the kind of statement that must give Flanagan nightmares. It’s a hard line, far past his comfort zone, where reconciliation is restricted to equal access to jobs and services.

Manuel and Flanagan represent two extremes.

Whatever Bill C-15 will mean is not determined yet. But we had some hints at last week’s announcement.

Minister of Crown-Indigenous Relations Carolyn Bennett has said Bill C-15 will only recognize Indigenous rights already determined by the Supreme Court. Justice Minister David Lametti noted the Canadian Association of Petroleum Producers has endorsed the idea of implementing UNDRIP, that it will provide certainty to developers and “the word veto does not exist in the document.”

Then, Assembly of First Nations National Chief Perry Bellegarde muddied the waters by saying: “It’s about the involvement, the inclusion. And that’s the right to say yes, the right to say no, the right to say yes with conditions.”

There is the sticking point: The right to say no.

If Indigenous people exercise that right, when we say no … then what?

That has been the question behind every blockade.

It is the cause of every land action.

It is what pits Indigenous families against armed police.

The answer will define self-determination and reconciliation.