What Is UNDRIP?
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument adopted by the UN General Assembly on September 13, 2007. It establishes a framework of minimum standards for the survival, dignity, and well-being of Indigenous peoples worldwide. The Declaration contains 46 articles covering individual and collective rights, including rights to self-determination, culture, identity, language, employment, health, and education.
UNDRIP affirms that Indigenous peoples have the right to the full enjoyment of all human rights and fundamental freedoms recognized in the UN Charter, the Universal Declaration of Human Rights, and international human rights law.
Key principles include:
- Self-determination and self-governance
- Free, prior, and informed consent (FPIC) on matters affecting Indigenous peoples
- Rights to lands, territories, and resources
- Protection of cultural heritage and traditional knowledge
- The right not to be subjected to forced assimilation or destruction of culture
Canada initially voted against UNDRIP in 2007 (alongside Australia, New Zealand, and the United States). In 2010, Canada issued a statement of qualified support. In 2016, Canada formally removed its objector status and endorsed UNDRIP without qualification.
Download the official Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Canada’s Constitution
Canada’s Constitution is the supreme law of the country. It consists of several key documents:
Constitution Act, 1867 (formerly the British North America Act)
Established Confederation and the division of powers between federal and provincial governments. It created the framework for governance but did not include explicit protections for Aboriginal rights.
Constitution Act, 1982
Patriated the Constitution from the United Kingdom. It includes two provisions of particular importance to Indigenous peoples:
Section 35 – Recognition of Aboriginal and Treaty Rights
Section 35(1) states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(2) defines “aboriginal peoples of Canada” as including Indian (First Nations), Inuit, and Metis peoples. This section sits outside the Charter and is not subject to the Section 33 notwithstanding clause.
Canadian Charter of Rights and Freedoms
Part I of the Constitution Act, 1982. Guarantees fundamental freedoms, democratic rights, mobility rights, legal rights, and equality rights. Section 25 of the Charter provides that Charter rights shall not be construed so as to abrogate or derogate from any Aboriginal, treaty, or other rights pertaining to Aboriginal peoples, including those recognized by the Royal Proclamation of 1763 or under land claims agreements.
How UNDRIP and the Constitution Interact
The relationship between UNDRIP and Canada’s Constitution operates on several levels:
- Section 35 as the Constitutional Foundation
Section 35 provides the constitutional recognition of Aboriginal and treaty rights. Courts have interpreted this section over decades through cases such as R. v. Sparrow (1990), Delgamuukw v. British Columbia (1997), Haida Nation v. British Columbia (2004), and Tsilhqot’in Nation v. British Columbia (2014). These decisions have progressively defined the scope of Aboriginal rights, title, and the Crown’s duty to consult.
UNDRIP aligns with and expands on the principles found in Section 35. Both recognize the inherent rights of Indigenous peoples, but UNDRIP articulates these rights in broader and more detailed terms, particularly around self-determination, free prior and informed consent, and land rights.
- The UNDRIP Act (Bill C-15), 2021
On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent. This federal legislation:
- Affirms the Declaration as a universal international human rights instrument with application in Canadian law
- Requires the Government of Canada to take all measures necessary to ensure federal laws are consistent with the Declaration
- Requires the development and implementation of an action plan to achieve the objectives of the Declaration
- Requires annual reporting to Parliament on progress
The Act does not amend the Constitution. UNDRIP does not have constitutional status in Canada. Rather, the Act creates a framework for aligning federal legislation with the Declaration’s standards over time.
- Free, Prior, and Informed Consent (FPIC) vs. Duty to Consult
One of the most significant areas of interaction is around consent. The Constitution, as interpreted by the Supreme Court of Canada, establishes a duty to consult and accommodate Indigenous peoples when Crown conduct may adversely affect established or asserted Aboriginal or treaty rights. The strength of this duty varies with the circumstances.
UNDRIP, particularly Articles 19 and 32, calls for free, prior, and informed consent before adopting legislative or administrative measures or approving projects affecting Indigenous peoples, lands, or resources. The relationship between FPIC under UNDRIP and the existing constitutional duty to consult remains an evolving area of law.
- Provincial Legislation
British Columbia was the first province to pass its own UNDRIP legislation, the Declaration on the Rights of Indigenous Peoples Act (DRIPA), in November 2019. Other provinces have engaged with UNDRIP to varying degrees. Provincial legislation operates within its own sphere of jurisdiction under the Constitution. - Ongoing Evolution
The interaction between UNDRIP and the Constitution is not static. The UNDRIP Act’s action plan, released in June 2023, outlines over 180 measures across federal priorities. Court decisions continue to shape the scope of Section 35 rights. The reconciliation of these two frameworks, one constitutional and domestic, the other international and aspirational, remains a defining feature of Canadian law concerning Indigenous peoples.
Key Documents – Download Links
UNDRIP Full Text (UN)
https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
Constitution Acts, 1867 to 1982 (Justice Canada)
https://laws-lois.justice.gc.ca/eng/const/
Canadian Charter of Rights and Freedoms (Justice Canada)
https://laws-lois.justice.gc.ca/eng/const/page-12.html
United Nations Declaration on the Rights of Indigenous Peoples Act (Bill C-15)
https://laws-lois.justice.gc.ca/eng/acts/u-2.2/
UNDRIP Act Action Plan 2023
https://www.justice.gc.ca/eng/declaration/ap-pa/ah/index.html
Truth and Reconciliation Commission: Calls to Action
https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/calls_to_action_english2.pdf
Royal Proclamation of 1763
https://www.solon.org/Constitutions/Canada/English/PreConfederation/rp_1763.html
British Columbia Declaration on the Rights of Indigenous Peoples Act (DRIPA)
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/19044
Official Websites
United Nations Permanent Forum on Indigenous Issues
https://www.un.org/development/desa/indigenouspeoples/
Government of Canada – Rights of Indigenous Peoples
https://www.rcaanc-cirnac.gc.ca/eng/1309374407406/1539617281588
Justice Canada – Constitution
https://laws-lois.justice.gc.ca/eng/const/
Crown-Indigenous Relations and Northern Affairs Canada
https://www.rcaanc-cirnac.gc.ca/eng/1100100013785/1529102490303
Department of Justice – UNDRIP Implementation
https://www.justice.gc.ca/eng/declaration/index.html
Indigenous Services Canada
https://www.sac-isc.gc.ca/eng/1100100032634/1572178335650
BC Treaty Commission
https://www.bctreaty.ca/
Assembly of First Nations
https://www.afn.ca/
Inuit Tapiriit Kanatami
https://www.itk.ca/
Metis National Council
https://www.metisnation.ca/