Continuing Improvement of Economic and Social Conditions? Commentary on Canada’s Action Plan to Implement UNDRIP and How it Fails to Address the Need for Improved Living Conditions On-Reserve

This blog post – the fourth in our series of posts on the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”) Action Plan – focuses on how the plan seeks to implement UNDRIP articles relating to the improvement of the economic and social conditions of Indigenous peoples. The post also highlights how the plan falls far short in creating a viable route to closing the standard of living gap for Indigenous peoples living on-reserve in Canada.

What’s the issue?

The systemic nature of the standard of living gap between First Nations people living on-reserve and other people living in Canada has long roots in Canadian colonial history, starting with the creation of the reserve system. While the official federal position was that reserves were designed to protect Indigenous people and preserve their ways, in reality, they isolated and impoverished Indigenous peoples. Reserves prevented Indigenous peoples both from participating in their own economies that they had built for thousands of years and from accessing the broader settler economy by imposing barriers like restrictions on movement and challenges raising capital. Participation in First Nations culture was banned and sometimes criminalized. Children were removed from their homes and sent to residential schools. And on reserve, basic services like health, infrastructure and housing were knowingly provided at grossly subpar standards.

While oppressive practices like potlatch bans and residential schools have been consigned to history, these historic roots are still visible in the entrenched poverty and inequities present in the reserve system today. There is severe underfunding for such fundamental requirements as governance and infrastructure. Access to clean drinking water and adequate wastewater treatment is a major challenge for many communities. Overcrowding and unsafe living conditions are endemic. As the Government of Canada has recognized, the current fiscal relationship is not working for anyone.

The impact of these inequities cannot be overstated. First Nations people who live on-reserve have the lowest income and lifetime earnings in Canada.^[1]Pendakur, Krishna, and Ravi Pendakur. “Aboriginal income disparity in Canada.” Canadian Public Policy 37.1 (2011): 61-83. Life expectancy for First Nations people is almost 10 years lower than for non-Indigenous people.^[2]Tjepkema, Michael, Tracey Bushnik, and Evelyne Bougie. “Life expectancy of First Nations, Métis and Inuit household populations in Canada.” Health Reports 30.12 (2019): 3-10. Low socioeconomic status continues to drive structural inequity, such as when low income means household food insecurity, which impacts the lifelong health of children. Inadequate housing, which is extremely common on-reserve, impacts lifelong physical and mental health. Social and health inequities persist across generations because policies of systemic discrimination and stigmatization reinforce existing inequities.

What is the relationship between on-reserve living conditions and UNDRIP?

The socio-economic inequalities faced by Indigenous people in Canada are connected to UNDRIP in two main ways:

• First, Articles 20-24 of UNDRIP affirms Indigenous peoples’ rights to equitable and acceptable living conditions. These articles provide for the right to engage in and improve economic and social systems, with just and fair support by Canada, including in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. Notably, these UNDRIP articles are also connected more broadly to the broad suite of United Nations Declarations, which fundamentally uphold human dignity^[3]See Article 1 of the United Nations Declaration of Human Rights.and require states to use resources to progressively achieve economic and social rights without discrimination.^[4]See the International Covenant on Economic, Social and Cultural Rights.
• Second, implementation of UNDRIP as a whole requires the improvement of economic and social living conditions on-reserve. To implement UNDRIP, Canada will need to commit to supporting First Nations as strong, healthy, self-determining communities. Full implementation is not possible in a reserve system of poverty, isolation, intentional deprivation, and a structural lack of opportunity that undermines equity. For example:
  • The right to cultural expressions (Article 31) is impacted by poor living conditions because people suffering from health conditions may not be able to express their culture, and the reduced life expectancy of Elders prevents knowledge transmission.
  • The right to self-determination and self-government in Article 4 cannot be realized without adequate, sustainable, predictable, and flexible funding for First Nation governments – funding not currently provided.
  • Free, prior and informed consent cannot be meaningfully obtained without effective self-government, such that implementation of Article 11 is tied to robust implementation of Article 4 (especially because Canada does not provide consultation funding, so Nations have to choose between meeting basic needs and protecting their lands).

What is Canada doing already?

Prior to the UNDA Action Plan, Canada had begun to both recognize and take steps to address the social and economic inequities faced by Indigenous peoples living on-reserve.

In terms of recognition of the issue, these inequities have been public knowledge since at least 1996, when the Royal Commission on Aboriginal Peoples published its findings on the major gaps faced by Indigenous peoples (both on- and off-reserve) in areas such as health, well-being, and social conditions. Since then, the reports and studies describing service gaps on-reserve are too numerous to describe here, and include reports identifying issues with fiscal management, wastewater and water treatment, education, housing, infrastructure and more.^[5]See e.g. Auditor General of Canada, 2011 Status Report, “Chapter 4, Programs for First Nations on Reserves” (Ottawa, 2011), preface; Report 3—Access to Safe Drinking Water in First Nations … Continue reading

In terms of taking steps to address these issues, Canada has begun to act in response to Indigenous advocacy taking place through collaborative relationships and, in some cases, legal challenges alleging discrimination in on-reserve service delivery in areas such as child welfare, clean drinking water, and policing. However, much work remains, and progress is slow. For example, after recognizing that the current system was failing First Nations Canada and Assembly of First Nations signed a Memorandum of Understanding to develop a “new fiscal relationship” in July 2016, but that new relationship has yet to be implemented. ^[6]A new approach: Co-development of a new fiscal relationship between Canada and First Nations (sac-isc.gc.ca)

What does the Action Plan commit to?

In this area, as in others (as we described in previous blog posts), the Action Plan commits to “continuing” to do a lot of things, without making new, discrete commitments. For example, the first measure in the First Nations’ priorities section commits to continuing “work underway with First Nation partners on a new fiscal relationship to provide sufficient, predictable and flexible funding in support of closing socioeconomic gaps and advancing self-determination.” However, no specific funding is promised. The Action Plan does not comment on specific policies like the 10-year grant, block funding, core and proposal-based funding, and so on. Given that this process of a “new fiscal relationship” began in July 2016, when is the work no longer “new”?

The “continues” continue with First Nations priorities measures 11, 14, 15, 16, and 17. These address continuing to explore options for jurisdiction over housing and funding for on-reserve housing, improving the Income Assistance program particularly for on-reserve families, closing infrastructure gaps on-reserve, lifting drinking water advisories in First Nations communities, and advancing water and wastewater service transfer. Even without the word “continue,” the intent is the same. This is true for First Nations priorities measures 12 and 13, which address First Nations control over health service delivery: a project that has been ongoing for decades.

The weak language of the measures is intensified by the absence of set, measurable commitments in the entire economic, health and social rights section of the First Nations priorities Chapter. This means that there will not be accountability in implementation. Without concrete action on such critical issues as housing and safe water and given the fundamental lack of information on sufficient and predictable funding, it is hard to imagine that the Action Plan will result in full implementation of UNDRIP.

What are Nations saying about this aspect of the plan?

Many Nations have identified this area of existing weakness as particularly pivotal for successful implementation of the Action Plan. As identified above, without healthy and vibrant First Nations institutions and communities, the plan cannot succeed. Today, for many First Nations people, even if they can secure housing on-reserve (which is often unavailable), choosing between living on- and off-reserve is a choice between “starvation and assimilation” – a choice that is fundamentally incompatible with the rights of Indigenous peoples protected by UNDRIP.

Nations have echoed the concerns identified above regarding weak measures and lack of measurable commitments. Indigenous people question whether the Action Plan will change anything for them and their communities.

Our Action Plan Series

We will continue to discuss the United Nations Declaration Act Action Plan in this ongoing blog series. Our next posts will consider the legal landscape of UNDRIP implementation and the key issue of free, prior, and informed consent.