Change by Drips and Drabs or No Change at All: The Coming UNDRIP Battles in Canadian Courts

Authors

Kevin GrayFollow

Abstract

The enactment of the United Nations Declaration on the Rights of Indigenous Persons (“UNDRIP”) into Canadian law has long been a goal for Indigenous groups in Canada. Its enactment has been entailed as potentially game changing. Commentators have argued that the incorporation of UNDRIP into Canadian law will produce a wholesale transformation of Canadian law, including providing a veto to Indigenous groups to development on their traditional lands and eliminating the doctrine of discovery. In this paper, I consider various arguments that have been advanced as to how UNDRIP may require changes to Canadian law. I argue, conversely, that Canada’s decision to unequivocally endorse UNDRIP is likely to have profoundly limited consequences for the Canadian legal order, particularly if it is not enacted in the legislation of all provinces. I focus on three particular issues: 1. The mechanism of incorporation of UNDRIP and what specific legislative mechanisms will be used to incorporate UNDRIP into Canadian law; 2. The impact of incorporation or lack thereof of UNDRIP into provincial law; and 3. The role of international law, including soft-law instruments, in the interpretation of the constitution or of legislation in Canada. After considering all three areas of law, I argue that in all three cases, the effects of UNDRIP are likely to be minimal, at least in the short term.

Recommended Citation

Gray, Kevin (2023) "Change by Drips and Drabs or No Change at All: The Coming UNDRIP Battles in Canadian Courts," American Indian Law Journal: Vol. 11: Iss. 2, Article 2.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol11/iss2/2