The Liberals are seeking a judicial review of a Canadian Human Rights Tribunal ruling that found Ottawa discriminated against Indigenous children, such as these Lake Manitoba First Nation children seen here on Oct. 14, 2019, on reserve by inadequately funding family services.CARLOS OSORIO/Reuters
Midway through the only official English-language leaders’ debate, the party heads turned to Indigenous issues – and quickly got sidetracked into arguing about pipelines.
That was understandable, but unfortunate. Understandable, because resource development always raises questions about Indigenous rights. Unfortunate, because Indigenous Canada’s future is about so much more than the pros and cons of Trans Mountain.
Canada is one of the world’s richest countries, but the average Indigenous Canadian is not sharing in that prosperity. Our common future has to be one where Indigenous Canadians, whether on- or off-reserve, are at least as likely as other Canadians to have graduated from high school and gone on to college, apprenticeship or university. It has to be a future where they are just as likely as other Canadians to enjoy middle-class incomes, good health and long lives.
Looking at the past four years, the Liberals can claim progress, marked by contradictions.
Take Indigenous child welfare. The Liberals worked to improve outcomes, and the 2019 budget said Ottawa would spend $1.2-billion over the next three years on better services for First Nations children. The Liberals also passed Bill C-92, to grapple with the fact so many Indigenous children are in the child-welfare system.
But the Liberals are also seeking a judicial review of a Canadian Human Rights Tribunal ruling that found Ottawa discriminated against Indigenous children on reserve by inadequately funding family services. Ottawa in court estimated costs between $5-billion and $7.9-billion. The Conservatives have said they, too, would appeal the ruling.
The Liberal government has also made progress on another chronic problem: the lack of clean water in some First Nations communities. The government is spending close to $2-billion to eliminate long-term advisories; the 2019 budget said Canada is about halfway to the goal and on track to get there by early 2021. Questions, however, remain. The Parliamentary Budget Officer has said the Liberals are significantly underestimating costs.
The Conservatives have several Indigenous promises in the party platform: reviewing government policies to “remove barriers to prosperity”; creating a minister in charge of consultations on major projects; and supporting work to end long-term boil-water advisories.
But what the Conservatives are most known for on this file is their opposition to the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. The UN declaration has become a powerful symbol. The Liberals want to incorporate it into Canadian law; they promise, if re-elected, to pass legislation within a year. The Greens and New Democrats are similarly supportive.
The Conservatives are more wary. They have reason to be.
Under the Constitution, the Crown already has a significant duty to consult and accommodate when Indigenous rights are at stake. That’s why lengthy talks were required prior to the approval of the Trans Mountain expansion – and why the courts struck down the first approval, because of inadequate consultation. These are real and substantial legal rights. But they are not a veto for affected communities, at least under current law.
The question is whether making UNDRIP part of Canadian law would change that. UNDRIP says governments must obtain Indigenous Peoples’ "free and informed consent prior to the approval of any project affecting their lands.” It suggests that just one community along the route of a project such as Trans Mountain could block it, even if other Indigenous communities were on board.
Some legal experts have suggested that UNDRIP’s language does not grant such a veto, and may not even change the Crown’s obligations under Canadian law. Some argue it is purely symbolic and carries no legal weight – although the Liberal platform explicitly criticizes the previous Conservative government for saying exactly that.
There’s a lack of clarity on what UNDRIP means or what it will do if it becomes part of Canadian law. That should be cause for pause.
But what is clear is that Indigenous Canadians are still not equal beneficiaries of Canada’s economic prosperity and that much more work is needed. Getting stuck on pipeline arguments is missing the point.