What could implementing UNDRIP look like in the NWT?

More than 13 years have elapsed since the establishment of the United Nations Declaration on the Rights of Indigenous Peoples, a key document enshrining global Indigenous rights.

First adopted by the UN General Assembly in 2007, the declaration (UNDRIP for short) affirmed an array of legal, political, social, and economic rights for Indigenous peoples.

Among those rights: self-determination and self-government, freedom from discrimination, and the right to “free, prior, and informed consent” regarding development projects on traditional territories.

Only four countries – Canada, the United States, New Zealand, and Australia – originally voted against the declaration, citing concerns with the principle of consent.

While Canada dropped its objector status in 2016 and adopted plans to implement the declaration in accordance with the Canadian Constitution, British Columbia is the only jurisdiction to date that has formally incorporated it into legislation.

Now, the Northwest Territories is aiming to follow suit and become the second Canadian jurisdiction to adopt the declaration. Doing so is a stated priority of Caroline Cochrane’s government, and MLAs recently formed a committee designed in part to advance that work.

So what will be achieved once UNDRIP is implemented in the NWT?

Dene National Chief Norman Yakeleya thinks implementing the declaration carries symbolism, signifying a federal and territorial commitment to governing alongside Indigenous communities and governments rather than over them.

“It sends a strong message that no one government can go it alone,” Yakeleya said. “Recognition of UNDRIP would give assurance that we are on the right track – we’re going to work together.”

Giving Indigenous governments equal standing with the Canadian government is a necessary prerequisite for full Indigenous self-determination, Yakeleya said, which is a principle of UNDRIP he considers especially important.

Self-determination allows Indigenous governments to establish laws and education systems among other facets of life in their communities.

“We have our own laws, we have our own way of looking at life,” Yakeleya said.

In Yakeleya’s opinion, the implementation of UNDRIP is long overdue – “153 years,” to be exact.

‘An equal footing’

Garry Bailey, president of the NWT Métis Nation, expects UNDRIP to mean the Métis “receive our own funding and take care of ourselves and our own needs, rather than having the GNWT do it for us.”

“We can do a better job taking care of our own people for certain things,” Bailey said.

He believes UNDRIP can help to address inequalities the Métis face by protecting their heritage and culture while potentially forcing recognition of the Métis as a distinct nation.

“When it comes to Aboriginal peoples, the Métis have been left out for well over 100 years. We haven’t been recognized equally,” Bailey said. “The First Nations have had their treaties, and their health benefits, and education, and so on.

“We’re looking forward to being put on equal footing with all the other Aboriginal groups.”

Ken Smith, Grand Chief of the Gwich’in Tribal Council (GTC), said successfully implementing UNDRIP would add another layer of protection to pre-existing guaranteed treaty rights such as hunting and trapping.

However, while this is something the GTC supports, adoption of the declaration alone is not the victory, Smith argued.

He said the true measure of success will come in the concrete actions and changes made as a result.  

“If we have a bureaucracy that does not understand or comprehend the document, then we believe we will be no further ahead,” he said.

“This needs to drive legislative and administrative changes that we need in the approach of governments in Canada with Indigenous nations.”

Direct action

But how might UNDRIP actually be implemented?

Nick Sowsun practises Indigenous law at the Olthius Kleer Townshend firm in Yellowknife.

Sowsun said implementation means going further than an “action plan” suggested by the territorial government.

“They need to make legislation which will require them to follow through with their commitment, and which would normally include mechanisms that hold them accountable,” Sowsun said, “so that if they’re straying, or if the Indigenous partners disagree, they have tools to find a solution and empower the Indigenous partners to really be partners.”

Implementing UNDRIP should involve clearly establishing what each article means, Sowsun said, and translate each into direct action.

He uses the example of free, prior, and informed consent, which forms Article 10 of the declaration. This principle is regularly raised in the context of development projects.

“There’s lots of controversy around what prior, informed consent is, and whether it includes a veto,” Sowsun said. “The BC premier and Justin Trudeau say that it doesn’t. It’s up to the GNWT to decide what that means for the GNWT.

“For me, ideally, it means consent, and consent ultimately means yes or no. So, whether you want to call it a veto or call it something else, it means a process of finding consent.”

For Yakeleya, Smith, and Bailey, successful implementation of UNDRIP means thorough and meaningful consultation with Indigenous nations and a “shared approach.”

According to Yakeleya, the Dene Nation has proposed a table of elected Indigenous leaders to advocate and consult on issues affecting Indigenous communities – including UNDRIP.

“We need to get together in the Northwest Territories under an NWT council of leaders to put our minds together, and not work in silos,” he said.

Holding the territory accountable

For its part, the territorial government has established a committee that will help begin the process of implementation.

Comprising five members of the Legislative Assembly, the Special Committee on Reconciliation and Indigenous Affairs is responsible for facilitating consultation with Indigenous communities across the territory – as well negotiations toward self-government agreements and settled land claims.

Inuvik Twin Lakes MLA Lesa Semmler sits on the committee. Semmler told Cabin Radio she and her colleagues are “there to listen and to try and move the process forward.”

“If it means we’re listening to the Indigenous leaders from that group, and we need to reach out to the community, and that’s what the Indigenous groups say we need to do, that’s what we’ll be doing,” she said.

“It all depends on the community, the Indigenous groups, and what they want.”

One of the most pressing – and least clear – queries regarding UNDRIP is how accountability will be ensured.

The international document alone doesn’t have the legal teeth to force compliance, should states adopt it. British Columbia included a caveat stating the province can’t be sued for failing to comply with its own legislation.

When asked how the committee might suggest holding the GNWT accountable to the declaration, Semmler and fellow committee member RJ Simpson did not offer an answer.

“Concerns like that are a little beyond the scope of this committee at this point,” said Simpson, the territory’s education and justice minister.

“We’re going to go out and talk to the Indigenous governments and find out from them what they think implementing UNDRIP means, from their perspective, and the GNWT is doing that work, as well.”

To Sowsun, holding the territory truly accountable might mean getting creative.

“I would imagine you could have some kind of independent body, like a commissioner, created under the UNDRIP legislation. Then it’s their role to resolve disputes and to address grievances,” he said.

And if the territory fails to comply with the declaration, then Indigenous nations in the NWT can always bypass them and go directly to the Canadian government, Bailey added.

“If the GNWT is serious about it, and they want to honour the declaration, they would have to stand by their commitments,” he said. “Otherwise, it’s going to be us against them.

“The federal government has an obligation to the Aboriginal people, and if it means us having a direct relationship and excluding the GNWT, I’m sure all the Aboriginal groups will be prepared to do so.”