Legal Research Assignment

Name

Module

Unit Code

Date
THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES IN

CANADA: THE UNREALISED ASPIRATIONS

Introduction

The United Nations General Assembly adopted the Declaration on the Rights of Indigenous

Peoples (“UNDRIP”) in 2007. 1 Despite playing a role in its negotiation and adoption, it

voted against its adoption.2 The subsequent regimes have blown hot and cold over the

Declaration, indicating the undercurrents that inform the half-hearted implementation of this

document.

Although it was formally adopted by Canada in 2010 after a rocky process, that marked the

genesis of the next hurdle; political goodwill for its implementation. This paper looks at the

overview of the ideals encapsulated UN Declaration on the Rights of Indigenous Peoples,

Canada’s reluctance to support the Declaration at its deliberation stage, and how Canada has

abdicated its duty to implement the provisions of the Declaration.

Background and analysis of UNDRIP

The UNDRIP is a lengthy and detailed document with 24 paragraphs at the preamble and 46

substantive articles.3 At the Preamble, the UNDRIP contextualizes its raison d'etre on the

backdrop of injustices meted out through colonialism and the need to uphold the general

principles of human rights in the broader international human rights system. The Preamble

also notes that realizing the rights of indigenous people “will enhance harmonious and

cooperative relations between the State and indigenous peoples, based on principles of

justice, democracy, respect for human rights, non-discrimination and good faith.”4

1
107th plenary meeting, 13 September 2007
2
Canada, Indigenous and Northern Affairs Canada, “Canada’s Statement of Support on the United Nations Declaration on
the Rights of Indigenous Peoples” (Ottawa: Indigenous and Northern Affairs Canada, 2010), https://www.aadnc-
aandc.gc.ca/eng/1309374239861/1309374546142.
3
Generally, the United Nations Declaration on the Rights of Indigenous Peoples
4
UN Declaration, supra note 1 at preambular para 17.
Article 1 of the UNDRIP also recognizes the collective rights of indigenous people and their

inherent rights of nations and communities.5 However, it does not provide a working

definition of who the indigenous people are for the purposes of asserting these rights; this

determination is assessed on a case-by-case basis.

Articles 1 and 2 of UNDRIP takes into account almost all aspects of indigenous peoples’

lives. It first declares unequivocal indigenous people's rights equality and non-

discrimination.6 Article 3 further recognizes the right of indigenous people to self-

determination and this includes the right to self-governance and autonomy over its internal

affairs, articles 3 and 4.7 Self-determination for indigenous peoples is the fundamental right

on which other articles are anchored. The other general rights provided in Articles 5 through

37 include the right to culture, the right to life, integrity and security, religious and linguistic

identity, economic and social rights, right to education, public information and employment,

right to lands, territories and resources, and right to have treaties, agreements and other

constructive arrangements upheld.8

At the end of the UNDRIP, it provides for implementation as a key to the full and effective

realization of indigenous people's rights. Effective implementation tests the state's

commitments to respect, protect, and fulfil indigenous people’s individual and collective

rights.9

Canada’s chequered history with indigenous people

5
Article 1.
6
Articles 1 and 2.
7
Articles 3 and 4.
8
Articles 5-37.
9
Victoria Tauli-Corpuz, “Statement of Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous Issues on
the Occasion of the Adoption of the UN Declaration on the Rights of Indigenous Peoples” at the 61st Session of the UN
General Assembly, 13 September 2007, New York.
Canada, as a state currently constituted, was historically founded on unilateral and arbitrary

denial of rights of First Nations right to self-governance. The First Nations affected include

the Métis and Inuit.10 The 19th Century colonial oppression system presumed that the

indigenous communities would disappear or get absorbed into the larger settler communities.

However, the presumption never came to pass and currently, they are in the current system

which has acknowledged meting out injustice on them.11

It is through fights and bloodshed that the First Nations have achieved some semblance of

self-government. However, in most areas of First Nation lives, they remain at mercy of

decisions made by politicians, judges and other government bureaucrats with little or no

knowledge of the traditions, laws, values and needs of the First Nations.

In 2007, the UNDRIP came into force as part of international law. The UNDRIP received an

overwhelming majority of the votes in its favour at the General Assembly.12 The vote count

was 143 in favour and only 4 against.13 The four countries that voted against included

Canada, the United States, New Zealand, and Australia.

In its defence for a vote against the UNDRIP, Canada stated that it was opposed to the

wording of the document with special concerns on provisions related to resources, lands,

territories, self-governance, intellectual property, and obligations of indigenous people with

third parties.14 On the same footing, the United States, New Zealand, and Australia

rationalized their negative vote on the grounds that they disagreed with the final text of the

10
Sheryl Lightfoot,” Unfinished Business: Implementation of the UN Declaration on the Rights of Indigenous Peoples in
Canada” in Charles Breton (ed.). 2021. A Resilient Federation? Policy Challenges for the New Decade. Inaugural Essay
Series. Centre of Excellence on the Canadian Federation (Montreal: Institute for Research on Public Policy).
11
Christian Aboriginal Infrastructure Developments (Caid),” Canada’s Indian Residential School Apology” available at
https://caid.ca/canada_apology.html <Accessed on 23/03/2022>
12
GA Res 61/295 (Annex), UNGAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15.
13
GA Res 61/295 (Annex), UNGAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15 at 19.
14
GAOR, 61st session, 107th plenary meeting, 13 September 2007, UN Doc A/61/PV.107.
document and that they preferred further negotiations before submitting the final text to the

General Assembly.15

Despite the opposition from a few countries, including Canada, UNDRIP was unanimously

adopted and currently enjoys support from the overwhelming majority of the member states.16

It is largely claimed that UNDRIP has attained the status of ‘global consensus.’17

The UNDRIP is a mark of progress for indigenous people which has ideally reconciled the

present with the past traumas inflicted by violation of their human rights.18

Canada’s lackadaisical implementation of UNDRIP

Despite the progressive provisions in UNDRIP, there is a wide implementation gap between

its provision and the application on the ground.19

Since the UNDRIP’s overwhelming approval at the UN General Assembly in 2007, Canada

took a whole 14 years to ‘study’ it before enacting Bill C-15, an Act Respecting the United

Nations Declaration on the Rights of Indigenous Peoples20 (UNDRIP Act). UNDRIP Act

sneaked though and passed in the middle of the pandemic with no fanfare. Even a cursory

look at the 46 Articles of the declaration does not reveal any reason why anyone would

oppose it.21

15
Ibid
16
Siegfried Wiessner, “Re-Enchanting the World: Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights
Regime,’ (2010) 15(1) UCLA Journal Int’l L and Foreign Aff 239 at 253
17
Ibid
18
Tauli-Corpuz, supra note 9.
19
Rodolfo Stavenhagen, Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, UNOHCHR, UN Doc E/CN.4/2006/78, 16 February 2006 [Special
Rapporteur] at para 5.
20
S.C. 2021, c. 14
21
ACMBlog THE CANADIAN BARRISTER & SOLICITOR LAW BLOG, “How 2021 Really Did Change Everything for
Indigenous & Aboriginal Law in Canada: The Dramatic But Little Known UNDRIP Act” Available at
http://www.acmlawfirm.ca/ontario-barrister-solicitor-law-blog/2021/12/17/how-2021-really-did-change-
everything-for-indigenous-amp-aboriginal-law-in-canada Published December 17, 2021.
The 2021 enactment was a culmination of series of false starts. In 2016, the Government,

through the Minister of Indigenous and Northern Affairs at the UN declared that Canada was

in full support of the Declaration and that the move would mean implementation of Section

35 of Canada’s Constitution, which provides rights for Indigenous peoples. However, the

inertia took 5 long years to pass UNDRIP Act, and even after its enactment, there has been no

tangible changes in the system.22

The implementation gap exists when there is a failure to enact legislation to give effect to

core constitutional provisions, bureaucracy, corruption, conflicting government policies, and

insufficient indigenous participation in the public decision-making process.23

Canada has not demonstrated political goodwill in implementing UNDRIP; terming it as

merely inspirational and as such no need to take steps to implement it.24 The Preamble and

Articles 38,39, and 40 of the UNDRIP requires that states liaise with indigenous people and

take steps to interpret and implement the access of rights espoused in the document.25

The Canadian Government’s major undoing in implementing the UNDRIP stems from its

wilful lack of understanding or outright disagreement on its legal status. The Government has

stuck to its guns that the instrument is merely inspirational and does not change the Canadian

law.26 It has also made effort to diminish UNDRIP’s significance as evidenced in its qualified

endorsement of the document that it will interpret the espoused principles “in a manner

consistent with Canada’s Constitution and legal framework.”27 This dualism approach is a

form of subversion that seeks to place the UNDRIP below Canadian law in the event of an

22
Ibid
23
Stephen Allen, “The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal
Project” in Stephen Allen & Alexandra Xanthaki, eds, Reflections on the UN Declaration on the Rights of Indigenous
Peoples (Portland: Hart Publishing, 2011) 225 at 234-5 .
24
Aboriginal Affairs and Northern Development Canada, News Release, “Canada’s Statement of Support on the United
Nations Declaration on the Rights of Indigenous Peoples” (12 November, 2010), online: Aboriginal Affairs and Northern
Development Canada <http://www.ainc-inac.gc.ca/ap/ia/dcl/stmt-eng.asp> [“Canada’s Endorsement”].
25
The preamble and articles 38, 39, and 40
26
Ibid note 21.
27
Ibid
inconsistency, then the Canadian law prevails. Ordinarily, states ratify treaties and

conventions in good faith and one of the significant steps in according such a document is the

political legitimacy to enable it to attain the perceived international legal character.28 Canada

has robbed the UNDRIP of the much-needed political legitimacy and erected roadblocks in

the way of its implementation at the domestic level.

At the domestic level, the majority of the populace, even some indigenous people, have

resigned to the Canadian Government's position that UNDRIP has neither relevance nor

effect within Canada. In addition, the indigenous leaders are also distracted by other ordinary

issues facing the community with no time to spare to study proceedings and rights granted in

Geneva. 29 in some instances, the tribal chiefs question how the UNDRIP will solve the daily

problems facing the indigenous communities, for instance, lack of clean water,

unemployment, housing shortage among others.30 These challenges faced by indigenous

people present some of the barriers to implementing the UNDRIP.

Canadian bureaucratic systems like the Courts have regrettably contributed to a lack of

understanding of international law. The Court’s comments in Mississaugas of Scugog Island31

is a stark example. In this case, Sharpe J.A refused to consider the draft UNDRIP as a guide

to the interpretation of the rights of indigenous people. According to the judge, Canada had

voted against UNDRIP and had not ratified it. He noted that the Convention recognizes the

rights of indigenous people to 'self-determination' to govern their own lands and their

political, economic, legal and cultural institutions but that it did not offer any useful

assistance to resolution of the constitutional issue at hand.32 It is imperative to note that the

case touched First Nation reserve and its band government in central Ontario.
28
Allen, supra note 20 at 225.
29
Dalee Sambo-Dorough, “The Significance of the Declaration on the Rights of Indigenous People’s and Its Future
Implementation” in Charters & Stavenhagen, supra note 19, 264 at 273.
30
Brenda L Gunn on behalf of the Indigenous Bar Association, “Understanding and Implementing the UN Declaration”
(Workshop presented to the Assembly of Manitoba Chiefs, October 17, 2011), [unpublished].
31
2007 ONCA 814, 287 DLR (4th) 452; leave to appeal to SCC refused, 32452 (April 24, 2008).
32
Ibid at paras 46-7.
There is also a financial challenge to facilitate the implementation of some of the rights set

out in UNDRIP.33 Canada has even argued that some of the resources needed to fund the

implementation of such rights are found in lands occupied by the indigenous people, and

implementation of such would run counter to the rights encapsulated in UNDRIP.

Conclusion

Canada is tending towards aversity to international law as demonstrated by its unwillingness

to either support the UNDRIP or amend its domestic laws in consonance with international

standards. Perhaps the biggest hurdle to overcome is the lack of political goodwill to

implement UNDRIP. Canada's inaction towards the implementation of provisions of

UNDRIP is appalling, and if not checked, it will slowly permeate into other sectors of

minorities and human rights in general. Canada should implement its international law

obligations in good faith.

BIBLIOGRAPHY

Books

33
Expert Mechanism on the Rights of Indigenous Peoples, Human Rights Council, “Final summary of responses to the
questionnaire seeking the views of States and indigenous peoples on best practices regarding possible appropriate measures
and implementation strategies to attain the goals of the United Nations Declaration on the Rights of Indigenous Peoples,”
Report of, 25 April 2013 UN Doc A/HRC/EMRIP/2013/3 at para 80.
Sheryl Lightfoot,” Unfinished Business: Implementation of the UN Declaration on the Rights

of Indigenous Peoples in Canada” in Charles Breton (ed.). 2021. A Resilient Federation?

Policy Challenges for the New Decade. Inaugural Essay Series. Centre of Excellence on the

Canadian Federation (Montreal: Institute for Research on Public Policy).

Stephen Allen, “The UN Declaration on the Rights of Indigenous Peoples and the Limits of

the International Legal Project” in Stephen Allen & Alexandra Xanthaki, eds, Reflections on

the UN Declaration on the Rights of Indigenous Peoples (Portland: Hart Publishing, 2011)

Case law

Mississaugas of Scugog Island 2007 ONCA 814, 287 DLR (4th) 452

Conference proceedings

Brenda L Gunn on behalf of the Indigenous Bar Association, “Understanding and

Implementing the UN Declaration” (Workshop presented to the Assembly of Manitoba

Chiefs, October 17, 2011), [unpublished].

Victoria Tauli-Corpuz, “Statement of Victoria Tauli-Corpuz, Chair of the UN Permanent

Forum on Indigenous Issues on the Occasion of the Adoption of the UN Declaration on the

Rights of Indigenous Peoples” at the 61st Session of the UN General Assembly, 13

September 2007, New York.

Journals

Siegfried Wiessner, “Re-Enchanting the World: Indigenous Peoples’ Rights as Essential Parts

of a Holistic Human Rights Regime,’ (2010) 15(1) UCLA Journal Int’l L and Foreign Aff

239 at 253

Statutes

United Nations Declaration on the Rights of Indigenous Peoples, 2007.

Expert Mechanism on the Rights of Indigenous Peoples, Human Rights Council, “Final

summary of responses to the questionnaire seeking the views of States and indigenous

peoples on best practices regarding possible appropriate measures and implementation

strategies to attain the goals of the United Nations Declaration on the Rights of Indigenous

Peoples,” Report of, 25 April 2013 UN Doc A/HRC/EMRIP/2013/3.

GA Res 61/295 (Annex), UNGAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49

(2008) 15.

Rodolfo Stavenhagen, Commission on Human Rights, Report of the Special Rapporteur on

the situation of human rights and fundamental freedoms of indigenous people, UNOHCHR,

UN Doc E/CN.4/2006/78, 16 February 2006 [Special Rapporteur] at para 5.

Websites

Aboriginal Affairs and Northern Development Canada, News Release, “Canada’s Statement

of Support on the United Nations Declaration on the Rights of Indigenous Peoples” (12

November, 2010), online: Aboriginal Affairs and Northern Development Canada

<http://www.ainc-inac.gc.ca/ap/ia/dcl/stmt-eng.asp> [“Canada’s Endorsement”].

ACMBlog THE CANADIAN BARRISTER & SOLICITOR LAW BLOG, “How 2021

Really Did Change Everything for Indigenous & Aboriginal Law in Canada: The Dramatic

But Little Known UNDRIP Act” Available at http://www.acmlawfirm.ca/ontario-barrister-

solicitor-law-blog/2021/12/17/how-2021-really-did-change-everything-for-indigenous-amp-

aboriginal-law-in-canada Published December 17, 2021.

United Nations Declaration on the Rights of Indigenous Peoples” (Ottawa: Indigenous and

Northern Affairs Canada, 2010),

https://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142.

Christian Aboriginal Infrastructure Developments (Caid),” Canada’s Indian Residential

School Apology” available at https://caid.ca/canada_apology.html <Accessed on

23/03/2022>

S.C.C. FILE NO. 37596

IN THE HIGH COURT OF THE DOMINION OF CANADA

BETWEEN

BOWEN PICTET (BY THEIR LITIGATION GUARDIAN SAM PICTET)

Appellant

-AND-

ONTARIO SCHOOL DIVISION

Respondent

FACTUM OF THE RESPONDENT

___________________________________________________________________________

Counsel for the Respondent

Jan Van Ribeck

Community Legal Assistance for

Ontario Inner City Inc.

123 20th St. West

Ontario, On, S7M 0W7

P: (306) 657-6106

F: (306) 384-0520

Email: Jan [email protected]

PART I – OVERVIEW
 1. Canada’s commitment to pluralism and religious freedom requires administrative

decision-makers to reasonably accommodate multiple values wherever possible. The

School accommodation, in this case, falls squarely within the range of reasonableness

articulated by the Supreme Court of Canada in Doré v Barreau du Québec, 2012 SCC

12.

2. The School did not discriminate against the Appellants and accommodated all

students to the fullest extent possible. The Appellants were able to compete at the

highest level of girls’ soccer in the province and went on to secure athletic

scholarships at an elite American college. Had the School Division allowed the

Appellants to try out, over half of the boys’ team would have been forced to quit on

the basis of their sincerely held religious beliefs. The outcome the Appellants sought

would have infringed the religious freedom of the Orthodox Jewish team members.

Factual background

Ontario Secondary School

3. Ontario Secondary School (“Ontario”) is a public high school in Connersquare,

Ontario. Ontario is popularly regarded as a ‘Jewish school’ for students who are

unable to afford the cost of tuition at private denominational schools. The school is

located in a predominantly Jewish neighbourhood. While only 1.1% of Ontario’s

population identifies as Jewish, 80% of Ontario students are Jewish. Of those Jewish

students, 75% identify as Orthodox.

Official Problem

4. Ontario has taken steps to ensure that Orthodox Jewish students are able to fully

participate in every aspect of public education. For example, Ontario’s school

cafeteria caters to the specifications of a kosher diet and Ontario teachers respect
 observance of Jewish holidays by avoiding teaching substantive lessons on those

days.

5. Many Orthodox Jews believe that any physical contact between men and women who

are not married or related to each other is impermissible. Sexes are allowed, the

physical contact associated with competitive sports rises above permissible levels for

most Orthodox Jews. At least twelve students on the Ontario boys’ team identify as

Orthodox Jewish and cannot play soccer with girls on this basis. This prohibition is

based on their personal beliefs as well as the wishes of their parents and religious

leaders.

The accommodation of the Appellants

6. Bowen moved to Ontario and enrolled at Ontario School. She played soccer at a high

level in Toronto and intended to continue to participate competitively when they

moved to Ontario. She hoped to be scouted during their high school years and wanted

to obtain athletic scholarships to university.

STATEMENT OF POINTS IN ISSUE

7. The present appeal raises the following constitutional question:

Did the School Division’s decision infringe the Appellants’ rights under s. 15 of the

Charter?

PART IV – ARGUMENT
 8. The parties agree that the standard of review is reasonableness. In Doré, a unanimous

Supreme Court of Canada held that “[e]ven where charter values are involved, the

administrative decision-maker will generally be in the best position to consider the

impact of the relevant charter values on the specific facts of the case.” Doré v

Barreau du Québec, 2012 SCC 12 at para 54, [2012] 1 SCR 395 [Doré] [emphasis in

original].

The Decision did not infringe the Appellants’ rights under s. 15 of the Charter

9. The Decision did not infringe the Appellants’ rights under s. 15 of the Charter as it

had an ameliorative purpose under s. 15(2). The creation of a single-sex soccer team

served the genuinely ameliorative purpose of providing sports programming to

Orthodox Jewish students who have historically faced significant barriers to inclusion

and access to services in public schools.

PART V – ORDER SOUGHT

10. The Respondent requests that this appeal be dismissed. In the alternative, the

Respondent requests an order declaring the Decision unjustifiably limited the

Appellants’ s. 15 equality rights.

All of which is respectfully submitted this 12th March, 2022

__________________________________________________

Jan Van Ribeck

Community Legal Assistance for

Ontario Inner City Inc.

Ontario, On, S7M 0W7

Counsel for the Respondents