Good afternoon.
I want to open this afternoon by acknowledging the lands of the Algonquin people, where we are meeting today.
My name is Sheryl Lightfoot. I'm an Anishinabe from the Lake Superior band of Ojibwa. I'm the Canada research chair of global indigenous rights and politics at the University of British Columbia, where I hold a joint appointment as associate professor in both the first nations and indigenous studies program and the Department of Political Science. I hold a Ph.D. in political science with a specialty in human rights and international relations. I've studied and written specifically on the UN declaration for more than a decade, looking at its genesis, development, and implementation in both global and comparative perspective, in numerous articles, in book chapters, and in a 2016 book I published with Routledge press titled Global Indigenous Politics.
I am very honoured to be called before this committee to share a global human rights perspective on the proposed legislation. I view this legislation as a necessary first step toward implementing the UN declaration in Canada.
In the decade since its passage in the UN General Assembly, the UN declaration has gained universal consensus as an international human rights instrument and has been reaffirmed by consensus eight times in the UN General Assembly. A report by the UN Expert Mechanism on the Rights of Indigenous Peoples on the 10-year progress of the declaration noted that it now informs the work of many global actors, has influenced the drafting of multiple new state constitutions and statutes, and has contributed to the development of laws and policies pertaining to indigenous peoples worldwide.
A similar 10-year anniversary report by the UN Permanent Forum on Indigenous Issues recounted progress in the areas of increased constitutional recognition of indigenous peoples and a growing body of jurisprudence, including important legal victories for indigenous rights in Belize, Indonesia, the African commission, Bangladesh, and the Caribbean Court of Justice.
Even with these positive steps, however, implementation of the UN declaration remains elusive around the world, as well as in Canada. Even in countries with strong legal frameworks, like Canada, severe implementation gaps remain between legal recognition and concrete action steps on the ground, and therefore actual implementation of the rights of indigenous peoples has been limited.
As a consensus international human rights instrument, the UN declaration reflects legal commitments that are related to the UN charter, other international treaty commitments, and customary international law. Implementation of indigenous rights in domestic settings is expected to be comprehensive and systematic. It has always been thought to include judicial, policy reform, and legislative avenues, the synergy of which will lead to full implementation.
The United Nations Expert Mechanism on the Rights of Indigenous Peoples, or EMRIP, wrote a 10-year report on the UN declaration and implementation, and it reads:
As States have the principal responsibility for adopting legislative measures and public policies to implement the rights recognized in the Declaration..., they should adopt measures to achieve this aim, including through the implementation of recommendations and decisions of all human rights bodies....
The United Nations special rapporteur on the rights of indigenous peoples noted in her 2017 report to the UN General Assembly:
The effective implementation of the rights of indigenous peoples requires States to develop an ambitious programme of reforms at all levels to remedy past and current injustices. This should involve all the branches of the State, including the executive, legislative and judiciary, and implies a combination of political will, legal reform, technical capacity and financial commitment.
A UN handbook for parliamentarians on implementing the UN declaration, published by the Inter-Parliamentary Union and several UN agencies, cites the law-making role of parliaments as of particular importance in the implementation of the declaration. This handbook suggests that legislative review and reform are essential first steps in implementation efforts and that all future national legislation should be evaluated for compliance with the UN declaration as an ordinary part of the legislative process. The handbook provides existing examples of national implementation legislation already adopted by Bolivia in 2007 and Republic of the Congo in 2011.
A similar manual for national human rights institutions states that national legislation is an important first step toward domestic implementation, but that “legislation alone is generally not sufficient”, so a national action plan should also be developed that includes legislation, a review of existing laws and policies, a complaints mechanism, stakeholder education, and active involvement of indigenous peoples in the development and implementation of the action plan.
The World Conference on Indigenous Peoples, hosted by the UN in New York in September 2014, was held specifically to share best practices on indigenous rights and their implementation. The outcome document of the world conference clearly stated that the necessary elements for national implementation and the collective commitment of UN member states participating would include national legislative frameworks, law and policy reviews, and national action plans.
Calls for concrete national legal and political reform measures in Canada began as early as 2011, at the UN Permanent Forum on Indigenous Issues. Then, by June 2015, the Truth and Reconciliation Commission of Canada announced the release of its summary report. This report included 94 sweeping calls to action. These 94 calls, which were intended to form the blueprint for reconciliation into the future, call upon all layers of government to make fundamental changes in policies and programs in order to both repair the harm caused by residential schools and improve the relationship between government and indigenous peoples into the future.
Call to action 43 specifically states:
We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
Call to action 44 states:
We call upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.
In all, 16 of the 94 calls to action make reference to the UN declaration. Because implementation of the UN declaration provides the necessary framework for reconciliation, it is therefore impossible, according to the TRC, for one to support the TRC and not support full implementation of the UN declaration. Rejecting implementation of the UN declaration equates to rejection of the TRC report.
In September 2017 the UN Committee on the Elimination of Racial Discrimination—or CERD, the monitoring body for the International Convention on the Elimination of All Forms of Racial Discrimination, which Canada signed in 1966 and ratified in 1970—conducted its periodic review of Canada. The CERD report applauded the current government's commitment to implement all of the TRC's 94 calls to action, but mentioned that the CERD is “concerned at the lack of an action plan and of full implementation”. The CERD made a recommendation that Canada develop, in consultation with indigenous peoples, a concrete action plan to implement the TRC's 94 calls to action and to implement the UN declaration and adopt a legislative framework to do so, along with a national action plan, annual public report, and a full legal, policy, and regulation review to ensure that all laws and policies are consistent with the UN declaration.
As all of these statements note, a legislative framework in Canada is a crucial initial step in implementing the declaration. Follow-up actions must then also include a national action plan, annual reporting, and a full policy and regulation review. The legislation currently under study would require the government to engage in all of these steps, and therefore better align Canadian law and practice with its international human rights obligations.
Thank you.