The Every Lawyer

Conversations on Calls to Action 43, 44, 45, 46 and 92 - UNDRIP as a reconciliation framework

Episode Summary

President Brad Regehr discusses the United Nations Declaration on the Rights of Indigenous Peoples with Aimée Craft and Brenda Gunn.

Episode Notes

President Brad Regehr discusses the United Nations Declaration on the Rights of Indigenous Peoples with Aimée Craft and Brenda Gunn.

Aimée Craft is Anishinaabe-Métis, an associate professor in the University of Ottawa’s Faculty of Law, and has been voted one of the top 25 influential lawyers in Canada. She’s an expert in Canadian Aboriginal law and an internationally recognized expert in the areas of Indigenous laws, treaties and water.

Brenda Gunn is Métis, and is an associate professor at the University of Manitoba’s Robson Hall Faculty of Law. She completed her LL.M in Indigenous Peoples Law and Policy at the University of Arizona. She developed a handbook on implementing UNDRIP that is becoming one of the main resources in Canada on the declaration.

Click here to register to The Path - Your Journey Through Indigenous Canada

Aimée participated in a previous episode on our French channel Juriste branché about the final report Missing and Murdered Indigenous Women and Girls. 

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Episode Transcription

Conversations on Calls to Action 43, 44, 45, 46 and 92 - UNDRIP as a reconciliation framework

Brad Regehr: Hello, everyone. Welcome to Conversations with the President. My name is Brad Regehr. This episode is presented by Lawyers Financial. Get expert advice and quality insurance and investments with Lawyers Financial, because they're not for profit, you get exceptional value. Get started at lawyersfinancial.ca.

The 2015 Truth and Reconciliation Commission Report contained 94 calls to action, things that needed to be done in order for reconciliation to take place. In this episode, we're going to discuss several of these calls to action dealing with the United Nations Declaration on the Rights of Indigenous peoples.

UNDRIP, as it is commonly known, was adopted by the UN General Assembly in 2007. It was endorsed by the Canadian government in 2010 with qualifications and fully endorsed in 2016. Last December, the federal government finally tabled legislation to implement declaration.

With me today to discuss UNDRIP are two legal academics. Aimee Craft is Anishinaabe Metis, an Associate Professor at the University of Ottawa's Faculty of Law and has been voted one of the top 25 influential lawyers in Canada. She's an expert in Canadian Aboriginal law and an internationally recognized expert in the areas of indigenous laws, treaties and water.

Brenda Gunn is Metis and a professor at the University of Manitoba is Robson Hall Faculty of Law. She completed her LLM in Indigenous Peoples Law and Policy at the University of Arizona. She developed a handbook on implementing UNDRIP, that is becoming one of the main resources in Canada on the declaration. Welcome to the podcast Aimee and Brenda.

Brenda Gunn: It’s great to be here. Thanks for having us.

Aimee Craft: Hi, good day, everyone.

Brad Regehr: Brenda, let's start with you. Can you briefly outline for listeners who might not be familiar with what the UN Declaration on the Rights of Indigenous Peoples is and why it's important?

Brenda Gunn: Starting with the easy questions I see. Sure, I'm happy to see what I can do here. So the UN declaration is a resolution of the United Nations General Assembly. And it is the first comprehensive human rights instrument that really speaks specifically to the rights of indigenous peoples. And so it was passed by the General Assembly in 2007.

And since then, we've seen a lot of work to implement it around the world. And it's quite exciting in that it really addresses a lot of areas including self-determination, treaties, land rights, participation and decision making, cultural rights. And I think particularly in the Canadian context, the UN declaration is significant for the way in which it recognizes and grounds Indigenous peoples rights and indigenous peoples own customs, laws and traditions.

Brad Regehr: Thanks for that, Brenda. The declaration has had a long and rocky road to implementation here in Canada. Amy, what was the opposition to it, or the continued opposition?

Aimee Craft: I think the big challenge that was pointed out right from the start was trying to reconcile Canadian law with the lands, territories, waters, provisions and concepts like free prior and informed consent and self-determination that are central to the declaration. So I know that at the early stages, and at the time of the declarations ratification, there had been a significant amount of concern around whether or not Canadian law could align.

And I think a lot of us still have some questions about whether or not the Canadian common law and federal and provincial legislation aligns with the principles and values that I just mentioned, but I think that that's a challenge that's apt to be taken on.

And I know that the TRC has called dramatically for the repudiation of some of the doctrines that underlie Canadian law that would mean that those abilities to recognize free prior and informed consent and to recognize governance and jurisdiction over lands, waters and territories would need to be – those need to be cast aside that terra nullius and the Doctrine of Discovery are no longer principles of law that we can rely on to found Canadian legal framework.

So I think there's a recognition now that the nation-to-nation relationship is actually what Canada wants with Indigenous peoples, and that that can be achieved in part by the recognition of the rights that are contained in the declaration.

Brad Regehr: Enshrining the declaration into law is hugely important symbolically. But, I guess building on the last question, what does it mean in practice? What is the worth of the declaration as a policy instrument? Brenda, you want to take a crack at that one?

Brenda Gunn: Sure. I think maybe I'll start by just clarifying how an instrument like the UN Declaration even applies in Canadian law, because it's important to understand that as a resolution of the General Assembly, the UN Declaration entered into force and was applicable and had legal effects in Canada, as soon as that vote happened.

So Canada hasn't ratified, it hasn't signed the Declaration, because it can't, because as the declaration, there's no ratification or signing process, it was just a vote. And so I think it's really important to understand that even though the UN Declaration isn't in the same category as a Human Rights Treaty, or customary international law, the type of international law that is often directly enforceable in Canadian law, the UN Declaration still has very strong normative effects, and so is part of Canadian law and can be used in Canadian law.

When we talk about the importance, I think it depends on how people try to use it. Like any law, like any instrument, like any tool, if you don't use it, it's not very useful. So for me, though, I think the UN declaration is really helpful for the way in which it articulates rights in a more detailed fashion than we see in other areas.

It's important because it's standards that have been developed over 30 years and continue to evolve. It's useful to help ensure that Canada keeps abreast with international developments. So Canada likes to think it's a leader in many areas, including in human rights and Indigenous peoples rights, but that's not always the case. And so the UN Declaration provides one yardstick that we can use to try to compare Canada and the protections that exist or don't exist in Canada with those in other countries.

I think it's also really useful because it's an instrument that Indigenous peoples fought for and pushed for and were involved, at every stage of the negotiations, and even post adoption of the UN Declaration. It has been an instrument that Indigenous peoples have been instrumental in helping define and continue to understand the rights. And so I think it provides a lot of clarity.

And it also helps connect Canada and protections in Canada to the growing body of international law on the protection of Indigenous peoples rights. For example, really quickly, free prior and informed consent is not something that came about in 2007 but we can actually see it being recognized as early as the 1990s in the United Nations Human Rights system. So it also helps ground some of what we think of its new ideas or new developments in Canada to a longer history of human rights protection in the United Nations Human Rights system.

Aimee Craft: If I can jump in on that, I think that there are, as Brenda said, a variety of different practical implications to UNDRIP depending on how you're approaching it. And I think that one of the spaces in Canada where it has important normative value, and hopefully one that will continue to grow, is changing the perceptions around consultation and accommodation, and particularly the piece of accommodation that's required and the recognition of Indigenous laws and legal orders, Indigenous institutions of governance.

And so I see, this continued potential to try and head closer to something like free prior and informed consent and to take that seriously rather than thinking about justified infringement of rights, which is really what Section 35 of the Constitution Act has done in relation to the recognition and affirmation of Treaty and Aboriginal rights.

I would also say that, for me that the UN Declaration holds two pieces of normative value that we tend to lack in our Canadian legal and political framework. And so I'll point to these two examples.

The first being Article 25, which recognizes the spiritual or the distinctive spiritual relationship that Indigenous peoples have with lands, territories and waters. And so, I think that's important because Canadian law hasn't really opened up that space within the Treaty and Aboriginal rights framework in Canada to think about distinctive spiritual relationships.

And that's been, I think, a really difficult point in terms of reconciling Indigenous laws, Indigenous perceptions, with the Canadian common law. And I think that that article in itself, if we really look at it, and take it seriously, manifesting that relationship, and also thinking about that as connected to the UN drip right to preserve that, those responsibilities for future generations is bringing in some Indigenous thought into that legal landscape.

The second thing that I would point to that I think is absent from the Canadian framework, and that hopefully can be enhanced with proper recognition of UNDRIP is the recognition of children, women, elders and persons with disabilities as being that they should be taken seriously, that they should enjoy a particular protection.

But that they have unique interests, and that they should be part of defining their rights and the things that are impacting them and applying to them as sort of special interest groups with a unique perspective rather than thinking of Indigenous peoples as a uniform whole, rather than having these very specific groups within different Indigenous nations.

Brad Regehr: So how do we get the declaration into our legal system? I guess I'm looking more at practicalities, I'm a practitioner. The declaration has a lot of very important principles concepts in it. How am I utilizing this when I'm advocating on behalf of my clients?

Aimee Craft: I think there are a few ways and many of us will be familiar with past attempts to pass federal legislation to recognize and affirm the rights contained within UNDRIP and to develop an action plan. And I think that has a direct impact on federal policy, as well as federal legislation. One of the questions that remains is whether or not there's going to be an overhaul of federal legislation if the bill, just currently Bill C 15 sitting before parliament, if it will be recognized, and how to then work on the implementation through a recognition and modification of existing legislation.

I think the second and more uncertain piece is going to be how the Canadian common law is going to adapt and adjust. And what's interesting, and maybe Brenda can speak a little bit more about how the declaration applies as an interpretive tool within Canadian law. But I think there's also initiatives that are taking place at a provincial level, for example, BC legislation that has spoken to the recognition of UNDRIP and its implementation within a BC context, in a way that collaborates with Indigenous nations and Indigenous organizations.

So I think, there's these different fronts of legislative reform and thinking about legislation, past and future, that aligns with the core concepts and values in the declaration, but also thinking to the modifications in the common law. I think there's ways of thinking about in an administrative tribunal context, how the declaration can apply as well. And then there are everyday acts and the work that's done outside of government and state that are quite significant as well.

Brenda Gunn: Yeah, I think, again, just to reiterate, the UN declaration is part of Canada's international human rights obligations. So one of the easiest ways to use the UN Declaration in a Canadian litigation context is to use the UN declarations and the standards that are set out in it to help interpret Canadian law.

And so through these ideas of the presumption of conformity, a well-established document, where we've seen courts take international human rights standards and use them to interpret domestic law including the charter, we can use the UN Declaration and the standards to push for better interpretation and understanding of Canadian law. And we've seen this happen in the courts.

But I will say if we want lawyers to start using the UN Declaration and helping promote implementation, they really need to start doing their homework and recognize international human rights law as law. And they need to do a bit of work to understand what the provisions of the UN Declaration are. Not simply reading the 46 articles in the preamble, but actually understanding where and how do free prior and informed consent of all, what is recognized under the lands, territories and resources provisions.

I've seen a lot of practitioners throw in the UN Declaration in their submission. So they say government action has violated various rights under the Constitution or challenging, and also a violation of article whatever in the UN Declaration. And that has been a real challenge, because the courts don't know what to do with it.

And so where we've seen it used more successfully is when practitioners, when they're citing the UN Declaration, very clearly tell the courts and provide precedents that say, “Yes, court, you can use international human rights law, including declarations to interpret Canadian law. And here's a provision of international human rights law.”

This is how it's understood in international human rights law. And this is how we should use it, here in Canada. And so there are a lot of opportunities, I think, to use the UN Declaration, in litigation context. But I also think, importantly, in negotiations where we want to keep pushing Canada to recognize the United Nations Declaration as the minimum standards that they set out.

That it's not the ceiling, but really, the UN Declaration sets the floor. So negotiations should really be starting at the standards set out in the UN Declaration, and then you work out from there. We shouldn't be having to negotiate our way to minimum human rights standards.

And then finally, the other thing I want to point out, is, I think there's also a really strong role for Indigenous governments to play in the implementation. And I would hope that Indigenous governments also work to ensure that their activities, uphold the standards set out in the UN Declaration.

Again, highlighting the provisions that Aimee pointed out about the rights of Indigenous women, youth, children, and persons with disabilities, to be part of decision making processes and other rights. So to ensure that our own governments are following the standards that are set out in the UN Declaration.

Brad Regehr: So let's jump to the legislation. We have Bill C 15 before the House of Commons. I think today it’s going through second reading or maybe that was yesterday. Do you think the bill as its currently written, does it doesn't go far enough? What do each of you think of that? Aimee, you want to go first?

Aimee Craft: Sure. I mean, there are a variety of opinions on the legislation. And this is the third attempt to pass this type of act through Parliament. And I think one of the highlights of this particular version of the bill is the breadth of the preamble. And I think they're really important things that are recognized in the preamble itself, including concepts tied to self-determination. So those are really beneficial things.

More generally, I think that a challenge is that co-drafting is the new norm when we're dealing with nation-to-nation relationships. And to my knowledge that hasn't happened here and I think that that's a weakness within the framework of understanding the bill and the federal government's responsibilities.

What I think is positive, though, is that the purpose of the Act is recognizing that this instrument applies in Canadian law, that this declaration applies and that it's providing some kind of framework for the recognition and the alignment of federal legislation with these laws.

As I said, this legislation can't go ahead and change the common law and it can't unilaterally apply to provincial governments. So I think that those are two spaces where we're going to have to see concurrent action. What is I think helpful also, is that there's an accompanied recognition of the declaration in the form of an action plan and an obligation to report back to Parliament through annual reports. And I think that that measure of accountability is quite significant.

But if you have a read through the legislation, there's not much to it other than what's in the preamble. And of course, the preamble helps us interpret legislation and the substantive obligations. And this one, as I said, is a heftier preamble. But I think that, there are certainly things that could be improved.

What I wouldn't want to see, though, is that this legislation die on the order paper again, third failed attempt at a federal recognition of the declaration itself. So I think that there are reasons to support this piece of legislation, keeping in mind some of the really important defining elements of that nation-to-nation relationship that would require direct engagement with nations in relation to any future legislation.

Brad Regehr: Brenda, do you have anything you want to add to that?

Brenda Gunn: Sure. Bill C15, I think it's really important for a couple of reasons. One of which I already alluded to, which is that a lot of Canadian lawyers and a lot of judges never took international law and don't really understand the rules of how international law applies.

So I think really significantly, instead of people having to learn the rules of reception for international law in Canada, if you have a piece of legislation that clearly says a piece of international law applies in Canada, it takes away some of that confusion and I think that's significant. I've read several decisions where judges have made critical errors of international law. They talk about ratification in relation to the UN Declaration, which is not accurate. And so I think where we can simplify that it applies, it helps.

I also think the structure of the bill is useful in that the national action plan is something that came out of the World Conference on Indigenous peoples at the United Nations few years ago. And that was based on a World Summit of Indigenous peoples, the preparatory meeting in Alta, where Indigenous peoples set out how they wanted to encourage the world to continue to work towards implementation.

And so national action plan is what states agreed to in the outcome document of the World Conference on Indigenous peoples. And it provides us a space to have real conversations, ideally, with Indigenous peoples across Canada and to ensure that our implementation does not take any sort of pan-Indian approach, but allows us to work on a nation-to-nation and a nation-by-nation approach to implementing the UN Declaration. How we understand the protections of lands, territories, and resources might look very different in the Prairie provinces versus up North versus either the West Coast or east coast, for example.

And also, the building off of what Aimee said about accountability is the transparency aspect. So by having the government report annually to Parliament, it provides an opportunity for all of us to see and hear what Canada is doing and provide space to challenge and question about the progress.

And I think that's really important, because it can be really hard to know what the government is doing. Not suggesting they're hiding it, it just can be really hard to find that information. So by having it be put out there regularly, it is really useful. And as far as, is there more different things it could do? I mean, it's really modest in what it's doing. It's setting out a plan to have a plan and taking steps in the right direction.

But I would just note that Romeo Saganash has said and I think in his testimony before the Parliamentary Standing Committee, he did note that the non-derogation clause in his Bill, Bill C262 was, I'm not sure if we want to say stronger, but at least was clear. And so there have been some calls recently to consider the wording of the non-derogation clause. His idea has also always been a need to have a more consistent and clear non-derogation clause that we're using and not sort of have different non-derogation clauses in different pieces of legislation.

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Brad Regehr: So the action plan, we've mentioned that, to you, what does the action plan look like? I know there's been some criticism that the timeline says three years to create an action plan. But what does an action plan look like at the end of the day. Aimee?

Aimee Craft: I think Brenda can go first on this one, I’ll jump in.

Brad Regehr: OK, Brenda?

Brenda Gunn: It’s a good question and I have a really good cop out answer. A national action plan will look ideally how different Indigenous peoples want it to look. So it's hard for me to say a national action plan should look like X or Y, but that's probably not the most useful answer to our listeners.

So one of the things that I have been thinking about is that the development of the national action plan, again, really needs to be regionally specific needs to be on a nation-by-nation spaces, so that there's opportunities. But importantly, I think the national action plan has to look also holistically at the rights.

And so we can't prioritize civil and political rights at the expense of economic, social and cultural rights. Particularly, I think, after the national inquiry, we want to ensure that economic and social rights which have been recognized as key protectors for Indigenous women, and also important for protecting Indigenous women against violence, that those are given equal priority and consideration to other rights as well.

Brad Regehr: Aimee, you have a view on the action plan?

Aimee Craft: Yeah, I think that what's laid out in the legislation actually is a very interesting guide. So there are two elements of the action plan. First are measures that are going to address past and ongoing in justices and kind of bring us into a sphere of respect and understanding good relations.

The second measure is really about that oversight remedies and accountability with respect to implementing the declaration. So I think there are two things and in my view, this mirrors and echoes a little bit of what the TRC has said, which is, we need to repair past harm, we need to address systemic discrimination in a variety of different ways. And then we need to build some mechanisms to ensure that there is meaningful implementation of the declaration.

I think these are the weeds. This is where there's going to be potential disagreement, there's going to be significant resourcing issues, there's going to be differences of opinion on what kind of metrics are going to actually show us whether or not this has been successful. So the action plan, in many ways is going to be a key step because it will define the future of what implementation looks like in Canada, and what social economic political measures have to attach to any meaningful implementation.

So I think this is something to watch and that's where my critique about co-drafting, I think comes in. At the stage of developing this plan, this has to be done with Indigenous people. And I know that that's recognized in the in the legislation itself, but I think meaningful engagement in that, and as Brenda said, thinking that an action plan may not be uniform across the country that will have nuances within certain regions and with different nations and in different contexts.

So in some ways, my reading into this legislation is to add an S to action plans and say, this needs to be multifaceted and it needs to be thought out and properly resourced, both in its development and in its reporting and implementation.

Brad Regehr: Aimee, you mentioned that Bill C15, obviously, federal legislation deals with the federal government. How do we get provinces on board with implementing the declaration?

Aimee Craft: Well, having seen some other provinces response on the federal carbon tax and that Supreme Court decision recently, I have a bit less hope that some provinces would be willing to join and come on board in terms of mirroring the federal legislation. Some have, and I think that a coordinated approach is very important.

And I think that a lot of Indigenous nations are bringing that forward, that their relationship is primarily with Canada, or that Canada has a coordinating role in terms of representation of the Crown, especially in relation to Treaty obligations. And so I think that further discussions and nation-to-nation discussions are a key part of thinking about this.

In many ways, Brad, I think we're almost at a similar point as the constitutional conferences. I think this is an opportunity to define a new nation-to-nation relationship, and to take seriously the declaration, and what it will change in terms of an ongoing relationship, or what it can bring back into light in terms of having those good relations between Indigenous peoples in Canada, and the federal government, and provincial governments and municipalities.

And what's been interesting to see is the response of some of the municipalities that have taken up the declaration and said, whether or not we're forced to do this, we have decided of our own will to engage in these principles and to develop our relationships with surrounding nations on this basis. And I think that that in itself is encouraging in terms of some of the political will that exists in Canada.

Brad Regehr: Brenda, do you have any views on how we get the provinces on board?

Brenda Gunn: Well, if I try to be optimistic, I think the hope will be that through strong federal leadership and through greater awareness of the UN Declaration that we will see normative forces take over the country as it were. And so I think we do have provinces and territories that are really interested in and are thinking strongly about how to implement the UN Declaration.

And I think as we continue with that work, hopefully, it will be harder and harder for the provinces who are resisting to continue to resist or to mount resistance in such an ill-informed manner. When I do training on the UN Declaration, always looking to see what's being written about the UN Declaration. And we have statements by various premiers that talk about uncertainties or that Canada has been doing this longer, and we know what we're doing. And I think those statements just aren't true, right?

Just because the standards in the UN Declaration might not be known to various premiers or in various provinces, that doesn't mean they're unknowable. There's a strong body of international human rights law that supports our understanding of the UN Declaration. And so as we get to know more about the declaration and understand how it actually contributes to greater certainty in Canada, it'll be harder, I think, for some provinces to mount the resistance, at least in the terms that they're framing it now.

Aimee Craft: And if I can jump in, again, I think, Brenda, you made a really important point earlier about educating the judiciary that may not have had extensive experience with the application of international human rights norms in their education and experience. And there's a case in Manitoba from the Queen's Bench a few years ago that says that the legislation that purports to recognize the declaration is aspirational at best.

And I think those are grave errors that we're going to have to work hard to correct and inform and educate, not only political leadership, but also the judiciary about the importance of the recognition of international human rights law and its application through the declaration in the Canadian context in both the federal sphere, but also provincially. And in relation to really important on the ground decisions, decisions that affect everyday lives of Indigenous people.

Brenda Gunn: Yeah, and there's definitely that willingness. I'm getting approached by more and more benches to give presentations. And in the last couple of weeks, I've managed to do some presentations to some of the different provincial courts. And I think it's also really important, though, that if we want judges to make better decisions, we have to give them better materials.

And I will continue to say that I hope lawyers engaged the UN Declaration included in their pleadings before the court, but they really do need to tell the courts that recognizing the UN declaration is not going to be taking a huge step, it's not something that would be unheard of, it's actually can be quite common practice.

We just haven't necessarily use this specific instrument in a specific context, but the idea of using international human rights law in Canada is quite standard. And I think the more we can explain to the judges that this isn't a radical departure from interpretation, that they can have greater confidence in relying on the declaration in their decisions.

Brad Regehr: We have two provinces that I know of today to have passed statutes addressing the declaration. Manitoba passed the Path of Reconciliation Act of 2016 and British Columbia passed an act just in 2019. What have you heard about the implementation of those acts in those provinces? Brenda, you want to go first on this one?

Brenda Gunn: Sure. I will admit to have not completely read the BC report, but the BC government just submitted its first periodic report on the BC legislation. And so what I think is important to note is that the province is at least doing that reporting. And that reporting, again, is that opportunity for Indigenous advocates to work with members of the government and members of the opposition to make sure that the good questions are coming before the government. So that they're being asked to really be held accountable.

I think the Manitoba act, I think it has challenges. And I think if we want it to have more teeth, as it were, or to have more force, I think more consideration on how to start pushing it forward. Legislation isn't going to change anything on its own. Legislative recognition is really just the first step and an additional tool in the advocacy work that we all do. And so I think they are useful, but it really falls back to us to make sure that we continue to push for its implementation and for a more robust interpretation of the legislation.

Brad Regehr: Aimee, what have you heard about these provincial acts?

Aimee Craft: I think what's interesting out, I'll speak just maybe to the Manitoba legislation. So it's been interpreted by the court as being aspirational, which is disappointing. And the annual progress reporting has been really difficult to access. So the first reports were widely available, and they're actually translated into the Indigenous languages of Manitoba, which I thought was a very interesting and progressive approach.

I think that this is not a priority for the current provincial government in Manitoba. And I think that that's really unfortunate. And what I would say is past reporting has actually been somewhat slim. And I would love to see more engagement with Indigenous peoples in that reporting.

So one of the things that you'll see popping up across the country with respect to the TRC recommendations or calls to action has been report carding. And so let's think about, what are the mechanisms to get people involved, to get civil society involved in, in commenting on whether or not the Reconciliation Act in Manitoba and similarly in BC is actually having the desired effect.

So I think it requires some engagements in consultation with the public more generally, but then engagement with Indigenous peoples within the jurisdictions themselves. I think that one of the challenges is that if you try and tackle the whole of the Declaration, or if you try and tackle reconciliation as a whole, there are a lot of really easy outs in terms of how huge that is. So focusing on specific initiatives that are properly resourced and that align with the values and priorities of Indigenous peoples is a great place for provinces to start. And I hope that in the future that that becomes more commonplace.

I would say that's a contrast between the BC legislation which directly engages Indigenous nations and organizations. It's a contrast with the Manitoba legislation, which is really about the government, creating its own initiatives looking towards itself, and its own reporting about its progress towards reconciliation, rather than looking at reconciliation in the way that the TRC defined it, which is about mutually respectful relationships.

Brad Regehr: The TRC report calls for the declaration to be used as a framework for reconciliation. How does that work? Aimee?

Aimee Craft: I think that if you back up, the declaration as the framework for reconciliation is a really important contribution of the TRC because it's saying a few things. One is that this it's about mutually respectful relationships that have to be developed and maintained, and that it requires some real societal change. So that's a good starting point.

And I think within that, there’s some pretty clear indications that there's rejection of terra nullius, Doctrine of Discovery, an outdated modes of thinking about the relationship between Indigenous peoples and the state. And then if you turn to the declaration itself, it's premised on self-determination as a core value. And that in itself, I think flips the current legal and political imperative that has dominated the past of Canada from one of the absolute sovereignty of the Crown and the idea of preserving and maintaining the sovereignty of the Crown to a new defined relationship of nation-to-nation.

And I think that that's uncomfortable for some, it's misunderstood by some. And I think there's a lot of work to do to build up trust towards reconciliation. But I agree with the TRC in that the declaration has to be the fundamental framework for reconciliation, if we're actually going to redefine and change the relationship from one of colonial domination and assumed sovereignty of the Crown to one of relationship between nations.

Brad Regehr: Brenda, what's your thoughts on this?

Brenda Gunn: When I talked about why I think the UN Declaration can serve as the framework for reconciliation, I always point to a couple of provisions in the preamble that I think help us understand why we even have a Declaration on the Rights of Indigenous peoples. Like, why do we need a specific declaration when there's already so many human rights instruments out there?

And it starts with the UN Declaration, if we read the first preambular paragraph recognizes that Indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different and to consider themselves different and to be respected as such. And I think that's really important.

We are recognizing that Indigenous peoples are peoples, and that they have a right to be treated equally and should not be discriminated against for being Indigenous. And that's why Articles 1 and 2 of the declaration are about equality and non-discrimination. So if we're talking about reconciliation, we have to start recognizing the idea of equality and non-discrimination.

And then the declaration also talks about that recognizing the rights of Indigenous peoples will enhance harmonious and cooperative relations. And I think this is really important in Canada. There's people out there who continue to think that Canada is a peaceful country where things are good. And they're afraid that if we start recognizing the rights of Indigenous peoples, that somehow that's going to upset things or tear us apart.

And what the United Nations Declaration is clearly saying is that in countries where colonization exists, particularly noting the impact of dispossession of Indigenous peoples from their lands, that the states are broken. And if we want to reconcile, we have to do so on the basis of recognizing Indigenous peoples rights.

And part of that recognition process, as Aimee’s pointed out, switches that relationship from one where the Canadian state has the power and authority to make all decisions for Indigenous peoples to a new relationship based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.

And then when you go through and look at the rights recognized in the UN Declaration, you can see that Canada is no longer going to be able to be making decisions for Indigenous peoples. That through self-determination through protection of lands and resources through the realization of the right to participate in decision making. Indigenous peoples are making decisions for themselves, and are part of any decision-making process where their rights are specifically and especially impacted.

And then finally, the last preambular paragraph of the declaration reminds us that the UN declaration is a standard to be pursued in the spirit of partnership and mutual respect. So implementing the UN declaration is also not something governments can do on their own. We have to work together. And so I think that's for me part of why I can see how implementing the UN Declaration, keeping in mind that implementing it has to uphold these basic standards, will actually help us move toward reconciliation and resetting the relationship back to ideas of nation-to-nation.

Brad Regehr: Unfortunately, we are running out of time. I think we could talk for hours about this subject. It's fascinating, it's important. But I really want to thank both of you for agreeing to be here today and to let me ask the questions, and really, for me to learn a whole lot. I really want to take what I’ve learned here today and apply it in my practice. And I'm hoping everyone who gets to listen to this can do the same thing. So again, Chi-miigwech, thank you both for being here today.

Aimee Craft: Thank you for making this space. And this is a very important discussion, Brad, I'm glad that we had the opportunity to have it together.

Brenda Gunn: Thanks for having me.

Brad Regehr: In this episode, I've been talking with academic experts and Indigenous law professor Aimee Craft from the University of Ottawa and Professor Brenda gun of the University of Manitoba is Robson Hall. Thank you for listening.

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