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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 29 THREE GOOD REASONS WHY UNDRIP CAN’T BE LAW —AND ONE GOOD REASON WHY IT CAN By Gib van Ert* There are at least three good reasons, based on well-established and largely uncontroversial principles of international and Canadian law, why Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples 2007 (“UNDRIP” or the “Declaration”)1 can have no effect on Canada’s domestic law. There is also at least one good reason why, despite these other weighty considerations, it may. The effect of the Declaration in Canadian law matters. Its dispositions go well beyond the prevailing understanding of s. 35 of the Constitution Act, 1982. Education, economic and social conditions, self-government, resource ownership and the concept of free, prior and informed consent are among the Declaration’s many promises. Full adoption and implementation of the Declaration “as the framework for reconciliation” is a key demand of the Truth and Reconciliation Commission.2 Recognition of the Declaration through judicial action could reshape Canadian Aboriginal law. THE DECLARATION IS NOT LAW The Declaration was adopted by resolution of the General Assembly of the United Nations (the “UN”) on September 13, 2007. The General Assembly is, for the most part, not a legislative body but a deliberative and representative organ. It cannot directly legislate, and as a general rule its resolutions have no legally binding effect on UN members.3 The few exceptions to this rule have no application in the Declaration’s case.4 The Declaration is not formally binding on Canada or any other states as a matter of international law.5 * The opinions expressed in this article are the author’s own and do not necessarily represent the views of his employer. The author thanks Heather Cochran for providing thoughtful comments on an earlier draft.


Jan Advocate 2017
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