Rights & Responsibilities: Implementing UNDRIP in B.C. and in our own Communities
BY CHRISTINA GRAY & JOHN BORROWS
AS BRITISH COLUMBIA passed and turned toward implementing their Declaration on the Rights of Indigenous Peoples Act, Yellowhead Research Fellow Christina Gray met with constitutional law scholar John Borrows to better understand the prospects of B.C.’s law, the difference between a declaration and customary international law when it comes to domestic legislation, and the role of Indigenous communities in implementing the Declaration on our own terms.
CHRISTINA GRAY: What is an international legal declaration? I ask this because in the title it is the B.C. Declaration on the Rights of Indigenous Peoples Act.
JOHN BORROWS: An international declaration is a statement of intent for future action. This directs the parties’ work in a particular field, in this case in the field of human rights as it deals with Indigenous peoples. It is distinguished from an international treaty. Treaties are binding on the parties (sometimes called conventions). A declaration is not binding in that same way, it’s a statement of what they hope to do in the future, and usually a declaration comes before a treaty. So it’s non- binding, it’s a statement of intent to act, and it sets out the aspirations.
However, some declarations are binding because they incorporate customary law. Customary international law is binding on the parties. For instance, before there were any declarations around torture, it became a part of international law, a custom, that you wouldn’t torture other people, and likewise with slavery. So, it may be that some of the principles in the declaration are not binding as a declaration, but are binding as a principle of customary international law because they reflect the practice in the world or they reflect the customs in the world around that area.
CG: This question builds off of something you just mentioned that is important and worth pointing out: some principles in declarations are also customary international law. What are the principles in this Declaration that might make it binding?
JB: James Anaya, a leading scholar of international law who has written much on Indigenous peoples and international law, says that most of the Declaration contains customary principles of international law or general principles of international law. These include the recognition of the title of Aboriginal peoples in
public spaces, the treaty relationships of Indigenous peoples should be recognized and affirmed, the ability to practice religion and culture and pass it on through family relations; our identity and affiliations may be international law. There is an argument that the Declaration just takes existing law and packages it.
CG: Right, I’ve heard that everything that’s in the UNDRIP comes from pre-existing elements of international law.
JB: That’s right. It builds on the UN’s Declaration on Human Rights or the Covenant on the Economic, Social and Cultural Rights or the Convention on the Rights of the Child. It consolidates law that’s already there in the international sphere. So, there’s kind of two arguments right?
First, it’s a declaration, it’s aspirational and not binding, simply a plan to act in the future. And the other view is that most of the things in here can already be considered international law because they’re customary law or principles of international law that the world now has affirmed either by their societies or by enacting this.
CG: So while not a treaty, it could still be very powerful. I want to talk more about the B.C. Act. Do you think it binds provincial governments along the lines
you suggest?
JB: The normal way that political communities would implement international law is through legislation. So the process would identify our treaty standards, our principles of customary international law or general principles of international law and they would say “okay – that’s what the standard is, now we need to put it into our own legislative sphere to give that force, to give that greater certainty.”
If the B.C. government sees this “merely” as a declaration and not a treaty they wouldn’t be obligated to put this into legislation, they could have taken other measures to work with Indigenous peoples, or to work with the federal government to enact the rights. But, to the extent that it does represent principles of international law, customary international law, there would be an obligation that must be fulfilled again through legislative instruments.
CG: That gets to the next question I was going to ask you, in regard to section 3 of the Act with the specific wording around consultation.
JB: Yeah, so section 3 states, “in consultation and cooperation with the Indigenous peoples of B.C,. the government must take all measures necessary to ensure the laws of B.C. are consistent with the Declaration.” One way of doing that is by creating legislation that commits itself to a process of working with Indigenous peoples, and in that process, figuring out what are those measures that are necessary to bring its laws in line or to be consistent with the Declaration. That is B.C. can’t just assume it knows what is best to make our laws in this province consistent with the Declaration; B.C. would have to talk with — and then execute — what they hear from those rights holders. This is the standard we spoke about earlier. Through this process, you would uphold that standard. But in order to do that in the most human rights compliant way, you actually work with the people concerned to make sure your legislative action aligns with the international instrument.
CG: You have worked previously with the Centre for International Governance and Innovation (CIGI), and on UNDRIP implementation. Were there any findings you can share for how to implement the UNDRIP through B.C.’s Act?
JB: What we’re trying to do at CIGI is weave together international law, domestic law, and Indigenous law kind of in a braiding analogy, and so that each one of those strands will support one another and nations are strengthened. A possible downside of this approach is getting all parties on the same page, and here I mean First Nations.
We often call ourselves nations and part of a nation-to- nation relationship with the federal government, and so if we are nations with the right to self-determination, we should act like Canada or B.C. acts, which is to say that we can implement the Declaration ourselves, according to our methods. For example, in communities with clans and chief structures, they may use feasting to affirm their rights. If it’s a band council, they could take that Declaration and say that’s our constitution; that every member is guaranteed the rights in the Declaration, and this could be interpreted by a Cree, or Anishinaabe, or Haudenosaunee, or Mi’kmaq lens. It doesn’t necessarily mean that our law is just going to look exactly the same as Canada or the United States, or say Bolivia; each nation will implement those rights in a little bit of a different way. That’s the point of a declaration in international law. There is a global standard, and that global standard has to be implemented locally, or internationally, or regionally as the case might be. How Anishinaabe people talk about assembly, or speech, or say spirituality or religion, might be a bit different from how the Haida would do it, or the Blackfoot would do it. We would still be trying to implement the rights that our people can speak freely. But you know, just as Poland is going to do that differently from Australia and Japan, our own people are going to have the same law that we’re trying to implement, but it’ll reflect our own legal traditions.
CG: So, it’s work on all fronts. I mean, it’s not just B.C. that has responsibility here.
JB: That’s right. We are just as responsible for implementing the Declarations as the provinces or federal government would be. Maybe we can be a leader in implementation. We’re saying, “here’s what we’ve done with our people, here’s how we protected these rights, B.C. or Canada. Here is what you might consider as measures necessary for implementing the Declaration with our self-determination in mind.”
No government is absolute on this earth. And there are responsibilities that accompany leadership. Responsibility has limitations and obligations. In other words, it’s not just a Declaration of Indigenous rights, it’s also embodying obligations. If I have a right in Canada to freedom of speech, the Government of Canada has an obligation not to infringe that speech. It’s reciprocal.
If I have a right to spiritual practice, somewhere there’s an obligation not to infringe against that spiritual practice and that obligation should be there at the Canadian level, at the provincial level, and also in our own political communities.
Self-determination means that we have the right to govern ourselves and make our own decisions, but that’s constrained by the principles in the Declaration. But this isn’t like a Trojan horse of western rights moving in and suddenly taking over. Each society in the world has to make rights their own, they have to find ways to really take it up on their own terms. That is what I’m encouraging, what is the way within our society, not within an assimilative measure by just cutting and pasting from someone else’s law and then trying to implement that right, but what on our own terms can we take up in the meaning behind that law?
CG: Do you want to talk a little bit about ways in which Indigenous peoples are already doing that work?
JB: Yeah. You have constitutions that are being ratified and have been ratified by Anishinaabe people in Ontario; they talk about doing this with our Seven Grandfather and Grandmother Teachings about love, respect, kindness, honesty, wisdom, humility, and truth. The treaty nations in B.C. also have constitutions which will often set out rights, but sometimes those rights aren’t just for the human world, they could be for the rights of animals, or fish. There’s a consultation protocol that the Chippewas of the Thames called Wiindmaagewin about how they expect others to deal with them when there’s going to be development in their territory. This is about Free, Prior, and Informed Consent — found in the Declaration — but what the Chippewas of the Thames talk about is Mino- bimaadiziwin, which is good living and Gdinawendimi (which means we are all related to one another). That’s an example of taking a principle of international law and making sure it speaks to and draws from the local understanding of what that law requires.
If you don’t do that then it’s assimilation right, that cutting and pasting just to take from somewhere else and say now we’re just going to implement our law in this way that’s indistinguishable from people around the world. In B.C.’s legislation, they actually encourage this and they’re committing to work with First Peoples to get this right.
CG: I think that’s a really great place to end.
JB: Yes, I think it also brings us back to the question, what are we going to do about this?
CG: And what are we already doing?
JB: And what are we already doing, exactly. It’s not reinventing the wheel you know, working on these fronts. We’ve been doing it for generations.
CG: Since forever right, we’ve always had laws.
JB: That’s right, exactly.