Canada supports the UN Declaration on the Rights of Indigenous Peoples – or not?

By Joanna Harrington

Cross-referencing: Chapter 4(B)(6), “Self-Determination”, pp. 327-329

While it received little coverage in the news, on November 12, 2010, Canada made an announcement declaring its support for the United Nations Declaration on the Rights of Indigenous Peoples, albeit with language to emphasize the declaration’s aspirational nature and its non-legally binding status. Canada also used the opportunity to reiterate its view that the declaration does not reflect customary international law, nor change Canadian laws. But nevertheless, Canada has now expressed its support for the Declaration, suggesting that the aim of its change in position is a domestic one, and a political one, with the hope that this support will lead to improved relations with First Nations, Inuit, and Métis peoples in Canada.

Unlike almost all declaratory texts on matters of human rights, which have been adopted by consensus within the UN General Assembly, the proposed text of the United Nations Declaration on the Rights of Indigenous Peoples was put to a vote, with that vote taking place on September 13, 2007. Four states voted against adoption - Australia, Canada, New Zealand and the United States – but three of the four states have now changed their position, and the fourth may be joining them soon. The occasion of the vote, however, remains an historical fact, with the opportunity to vote having now passed. One does not sign a declaration.

The first of the four states to change its position on the Declaration was Australia, with a federal election in November 2007 resulting in a change in government and a change in position. A formal statement of support for the declaration was made by the Indigenous Affairs Minister Jenny Macklin on behalf of the Australian Government on April 3, 2009. New Zealand then followed suit, expressing its support for the Declaration a year later, in a speech delivered by New Zealand’s Minister of Māori Affairs, Dr Pita Sharples, during the first day of the ninth session of the UN Permanent Forum on Indigenous Issues in New York on April 19, 2010.

Now Canada has changed its position, at least formally, albeit that Canada has stated that it still retains its previous concerns about some of the Declaration’s provisions. Canada has also used its statement of support to reiterate Canada’s main areas of concern, identified as: “the provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties.” This language is identical to that used in Canada’s explanation of position, delivered by Ambassador McNee before the 2007 vote in the General Assembly: see pages 12-13 of the official record.

The impact of such unilateral statements of support, delivered in arenas external to the UN General Assembly, and long after the vote has taken place, will be something to watch. It may also be a technique that encourages universal support, with The Washington Post reporting on December 16, 2010 that President Obama has announced that the United States will support the Declaration, reiterating that the declaration is a non-binding text.