Canada’s Role in the Declaration on the Rights of
Indigenous Peoples (DRIP):
From Staunch Supporter to Aggressive Opponent
Professor Bradford W. Morse
Professor of Law, University of Ottawa
August 2008
Canada’s Role in the Development of the DRIP
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Since the mid-1980’s until 2006,
Canada’s successive governments
participated in drafting an international
Declaration on indigenous rights
Canada was a supporter of the United
Nations Working Group on Indigenous
Populations (WGIP) established in 1982
and which completed a Draft Declaration
in 1989
WGIP later submitted the Draft
Declaration to the Sub-Commission on
the Promotion and Protection of Human
Rights in 1993
The Sub-Commission, which quickly
adopted the Draft Declaration, then
submitted it to the former UN Commission
on Human Rights (CHR) for consideration
CHR set up the Working Group on the
Draft Declaration (WGDD), where
Canada also played an influential role
Canada’s Role in the Development of the DRIP
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For over two decades of debate and discussion, Canada took on a
critical leadership role in advancing, and later strongly supporting,
the development of DRIP
Canada’s position changed dramatically in 2006, evidenced by its
decision to vote against the Draft DRIP at the newly established
Human Rights Council (HRC)
The HRC adopted the WGDD Chairperson-Rapporteur’s version of
the Draft DRIP on June 29, 2006 by a vote of 30 in favour, 2 against
(Canada and the Russian Federation), 12 abstentions and 3 states
not recording a vote
Canada’s ambassador to the HRC at the time, Paul Meyer,
officially declared “that this Declaration has no legal effect in
Canada and does not represent customary international law”
Canada’s Contemporary Position
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Posted 11 page rationale for its opposition on government
website 27 September 2006
Led a coalition [the “Canada Group”] in August 2007,
developing a “non-paper” of proposed amendments to DRIP largely ignored by other General Assembly members
September 13, 2007, DRIP was endorsed by the UN [144
Member States in favour & 11 abstentions); Canada is one of
4 nations that voted against DRIP (with USA, Australia & NZ)
and remains hostile to it today
Canada has damaged its international image
as a champion of indigenous rights
What Led Canada to Change its Position
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Prior to the new Conservative Party
government gaining power in early
2006, Canada’s Liberal Party
government expressly endorsed DRIP
As the only member of the HRC
among dissenting States, Canada was
in a strategic position to advocate
against the adoption of DRIP
Prime Minister Stephen Harper met
former Prime Minister John Howard in
May 2006; this meeting allegedly acted
as a catalyst in Canada’s shift
The Harper government ignored advice
from 3 federal departments and the
Parliamentary Standing Committee of
Aboriginal Affairs and Northern
Development to adopt DRIP
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (1) The DRIP text is vague and
ambiguous, leaving it open to
different, and possibly
competing interpretations
 (2) The DRIP could be
interpreted as being
inconsistent with the Canadian
Constitution Act 1982, the
Canadian Charter of Rights
and Freedoms, and past
decisions of the Supreme
Court of Canada
Rebuttal:
 (1) Redrafting won’t eliminate
possibilities of competing
interpretations. The DRIP will
never reach a level of clarity
that there are no possible
alternative interpretations
 (2) The Canadian Government
doesn’t even regard the DRIP
as having legal effect in
Canada. Besides, Article 46(2)
makes clear that all of the
rights within the DRIP are
subject to limitations set out
“by law,” thus States can
override or infringe on
provisions so long as domestic
laws respect existing
international human rights law
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (3) Certain provisions of the
Declaration could be
interpreted to go beyond
existing jurisprudence of the
Supreme Court of Canada
regarding the collective rights
of Aboriginal peoples pursuant
to section 35 of the
Constitution Act, 1982, such as
the right to hunt, to fish and to
gather
Rebuttal:
 (3) This argument seems to
imply that our Supreme Court
cannot expand its own
interpretations of section 35
over time, which is absurd. It is
interesting to think that the
status quo of Canadian case
law serves as a ceiling that
cannot be surpassed by the
DRIP, or presumably any other
international non-binding
declaration, let alone a binding
treaty
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (4) The text and
provisions on lands and
resources fails to
consider the wide variety
of landholding regimes in
existence in our nation,
the varying forms of
recognizing these
discrete lands when
exclusively held by or for
Aboriginal peoples, and
the different types of
rights they may possess
Rebuttal:
 (4) the reality is that
immensely different
situations exist around
the world for the over 370
million Indigenous
peoples such that one
cannot expect an
international instrument to
reflect all local nuances.
Further, agreements
between governments &
indigenous peoples can
reach new arrangements
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (5) There is the potential for
articles and provisions
discussing land issues to have
a retroactive effect, undoing
centuries of Canadian treaties
with indigenous peoples
 (6) Article 28 affirming the right
of redress where lands were
lost without indigenous
consent is problematic
Rebuttal:
 (5) Fears that prior treaties
between the Crown and First
Nations, Inuit and Métis
peoples in Canada might be
undone is unfounded as Article
37 affirms that “treaties,
agreements and other
constructive arrangements
concluded with States” are to
be honoured and respected
 (6) Article 28 recognizes that
prior land loss will have
occurred and does not suggest
that all such circumstances will
be corrected by dislocating
current occupants and
returning the land
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (7) Article 27 suggests
the creation of specific
adjudicative mechanisms,
and is so prescriptive it
precludes other
successful approaches
for resolving land claims
issues, such as direct
negotiations
Rebuttal:
 (7) Article 27 requires a “fair,
independent, impartial, open
and transparent process” for
litigating land claims issues,
and for indigenous peoples
“right to participate in this
process.” The Government’s
concern is the absence of
Aboriginal peoples in
establishment of CDN court
system, but suggesting
negotiations are precluded by
text is groundless as it is
inherent in any form of
adjudicative process
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (8) Article 29 is opposed
because the right to the
conservation and protection of
the environment is not
recognized at international law
Rebuttal:
 (8) Environmentalists and
indigenous peoples among
others may find the opinion that
international environmental law
does not support the right to
environmental protection as a
human right a surprising one.
Canada also wanted an
amendment that would limit any
State obligation to providing
equal access to existing
environmental protection
assistance programs, rather than
the text’s placement of a
mandatory duty to “establish and
implement assistance
programmes for indigenous
peoples” to meet this objective
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (9) Self-government - Article 4
fails to address the sources of
funds to finance selfgovernment & should have
clarified indigenous
governments’ share of
responsibility for financing their
functions. There should also
be an explicit paramountcy
clause that favours federal and
provincial laws over others
 (10) Articles using the
language “free, prior and
informed consent” could be
seen as an indigenous veto
over matters that also affect
non-indigenous populations
Rebuttal:
 (9) Canada opposed Article 4
but not Article 3 which affirms
“Indigenous peoples have the
right to self-determination.” The
government’s complaint would
have some merit if the onus was
on States to finance such
means of self-government, but
Article 4 does not do so
 (10) Prior consent on projects
impacting traditional lands
would limit governmental
freedom, and DRIP goes further
than current CDN jurisprudence,
but again DRIP is not binding
and recognizes indigenous
rights are subject to limitations
“determined by law”
Specific Concerns Articulated by the Government of
Canada and Why These Arguments Fail
Arguments:
 (11) Art. 10 restricts capacity to
relocate Aboriginal communities
during times of disaster, armed
conflict or other emergencies,
while Art. 30 requires
Indigenous agreement for
military activities on their lands
 (12) Art. 36 assures the “right to
maintain and develop contacts,
relations and cooperation,
including activities for spiritual,
cultural, political, economic and
social purposes” across
international borders should be
exercised in accordance with
border control laws (laws on
customs and immigration)
Rebuttal:
 (11) Art. 30(1) addresses such
concerns, as it acknowledges that
consent can be overridden where
“justified by a significant threat to
relevant public interest.” It is hard
to envision how natural disasters
or armed conflict would not
surpass a “public interest” test
 (12) Amendments in final text
may have clarified, yet even as it
stood then federal immigration &
customs laws are secure both
under the general limitations of
DRIP as well as through many
other international law
instruments
Recent Positive Movement on DRIP in
Canada’s House of Commons
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In April 2008, Parliament’s House of Commons passed by majority
vote a resolution to endorse DRIP
Conservative Party maintained its opposition as only party to vote
against resolution, stating erroneously that the “Declaration would
undo centuries of Canadian treaties with Indigenous peoples”
Domestic pressure & momentum has built to adopt DRIP since
Harper government’s national apology for the approximately
150,000 Aboriginal children who suffered traumatically while in
residential schools in place for a period over a hundred years
In June 2008, Bill C-659 was introduced by a Liberal Member of
Parliament which, if passed, would ensure
Canadian domestic laws are consistent with DRIP
DRIP and Domestic Law in Canada
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Even though Canada did not vote in favour of DRIP, it may still
be compelled to comply with its principles
The Supreme Court of Canada is known to look to international
instruments to guide its reasoning in domestic decisions and
particularly in interpreting Constitutional provisions and common
law principles - thereby indirectly may force the federal
government to comply with international obligations
CDN government will hopefully change its mind in future