Indigenous - Native American

Should the CRC Endorse and Lobby for Making UNDRIP Federal Canadian Law?

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In Bill C-262, the federal government of Canada is considering adopting, as Canadian law, the provisions of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).  In 2016, “the Christian Reformed churches in Canada” affirmed UNDRIP “as a framework for reconciliation” with indigenous peoples in Canada, but more recently, the CRC, via “the leadership of the CRC in Canada”, is now formally endorsing and lobbying for Bill C-262, which would essentially incorporate UNDRIP into federal Canadian law. See the Do Justice article Bill C-262: Another Step on the Reconciliation Journey. 

So what exactly is in UNDRIP? A breathtakingly broad array of provisions that, if adopted as law, would create specific legal rights in favor of indigenous peoples.  The most breathtaking is Article 26, which states:

Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied, or otherwise used or acquired.

Indigenous peoples have the right to own, use, develop and control the lands, territories, and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

States shall give legal recognition and protection to these lands, territories, and resources. Such recognition shall be conducted with due respect to the customs, traditions, and land tenure systems of the indigenous peoples concerned.

The past tense language of Article 26 was a central reason for the original rejection of UNDRIP in the past by four countries: Canada, United States, Australia, and New Zealand. The concern was that this language quite literally granted indigenous peoples real property rights in all land their ancestors may have once been owned, occupied, or used. The concerns are well founded—that is precisely what the language says. Thus, if Bill C-262 becomes Canadian law, then: (1) the Canadian Supreme Court will declare that Article 26 doesn’t mean what it says, or (2) the various indigenous peoples will decide not to avail themselves of the new law, or (3) there will be an enormous change in the ownership rights of pretty much all of the real estate that makes up the country of Canada.

I generally choose not to get involved in “Canadian CRC politics,” but this is simply too significant (including, potentially, for the United States). The endorsement of and lobbying for C-262 here wasn’t done or decided by Synod, despite the enormity of impact C-262 can/will have. Has Synod prior pronouncements, as claimed, really authorized “the leadership of the CRC in Canada” to decide to take specific political sides on this kind of legislation?

The United States has its “Green New Deal” and Canada its “C-262.” Both are breathtakingly impacting. Both have lots of political energy behind them. Both are proposal for specific, multi-pointed federal law that if passed, for better or for worse, will greatly impact their respective nations, not to mention the practical lives of many millions of citizens. 

Should the CRC really be politically endorsing/lobbying here? And if it does, shouldn’t something this impacting be an action taken by Synod as opposed to “the leadership of the CRC in Canada”? My own answers are “no” and “yes.”

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Doug Vande Griend
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February 20, 2019
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Dan Winiarski on February 19, 2019

Have any Canadian CRC leaders been asked about giving CRC church or denomination lands back to indigenous peoples? As in, are they willing to do so?

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Daniel Brown on February 20, 2019

A few things:

1. Framing UNDRIP as a radical proposal ignores the very long history of Supreme Court of Canada (SCC) decisions surrounding treaty rights that through continuous rulings have affirmed what is at the heart of Article 26. It is essentially the law of the land and putting it into law simply means that every time there is a project to be negotiated the government will save years, lawyers fees, and animosity with indigenous peoples fighting losing court cases. This is not a huge radical change. It is good policy rooted in long history that the author does not have access to.

2. "CRC Leadership in Canada" creates an impression that this is a few people in a room making decisions. It is not. Decisions like this are made through a robust process of delegated authority with multiple points of accountability and are received and endorsed through the Canada Corporation at the Council of Delegates and then received and endorsed by Synodical decision.

3. The author's personal bias against ecclesial involvement in the political process is known and based on experience in the US regarding what lobbying is. The Canadian experience is markedly different involving deep and careful study of a limited number of files in which we have a long history and a wealth of relationships and expertise. It is also governed by processes of accountability, regional, delegated, representational authority, and oversight via the Canada Corporation, Council of Delegates, and Synod. The relationship between indigenous peoples, the Government of Canada, and the churches is one of those files. The CRC in Canada has a decades long involvement in these discussions and the involvement of churches in the process of Truth and Reconciliation is essential not only for public policy but for gospel proclamation.

4. The answer to your question regarding whether the action of the Canadian churches are properly endorsed is yes. This is a long conversation in Canada with decades of history, decisions, and accountability through proper ecclesial channels. Endorsement of UNDRIP is not surprising, shocking nor is it controversial. 

5. Taking the very important issue of reconciliation out of the process (which is enough to do it in the first place): this is good social, economic and legal policy for Canada. It will save tax dollars, create stability for businesses, and improve health, education and economic well-being for indigenous peoples.

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Doug Vande Griend on February 20, 2019

Dan: Thanks for engaging.  My responses (correlating with your point numbers):

1.  UNDRIP's Article 26, as literally written, cannot be regarded as less than "breathtaking" (which was the word I used).  As I had suggested, it may be that the Canadian Sup Ct will alter its literal effect by construction, but that is yet to be seen.  To say it another way, if, as you say, Article 26 is already the "law of the land," there really would be no point to passing Bill C-262, would there?  I'm quite sure there is no current Canadian statutory (or case) law language that says what UNDRIP's Article 26 says.  That's why new law gets written.

2.  My reference to "CRC Leadership in Canada" quotes from the DoJustice article (see link in my article), which is a publication of OSJ.  Whatever impression is given by that is essentially an impression given by the DoJustice article.  And however "robust" the process denominational process may be, I'm not aware of any Synodical decision to endorse and lobby for the statutory adoption of the provisions of UNDRIP (which is what Bill C-262 does of course).  Can you provide a cite to the Acts of Synod or something else that indicates otherwise?

3.  You suggest I have a "bias against ecclesial involvement in the political process."  While I may have that, my more immediate objection would be the that the CRC's Church Order (Article 28) has that same bias, or more accurately put, the CRC Church Order prohibits "involvement in the political process," not my own personal bias  As you may know, I've advocated for those who favor a change in CO Art. 28 to propose that change and so ask Synod to consider making that change, just as those those who wanted to change CRC Church Order to allow women's ordination did.  That way, the question could be resolved.  At present, the rule contained in Art 28 (which is a covenant among the churches) is simply being ignored.  I do agree with you that reconciliation is very important.  Where we perhaps disagree that creating a law that says what UNDRIP's Article 26 says would help reconciliation.  I think it will more likely prove to have opened the door to the the opposite.

4.  I'm sure there are plenty of Canadians who oppose C-262.  If there weren't, C-262 would have been passed a very long time ago.  Similarly, I'm sure there are Canadian CRCers who oppose the denomination endorsing C-262.  An action isn't "noncontroversial" just because someone who favors the action says so.

5.  I'd respectfully disagree with your suggestion in #5.  Any time statutory language is passed that overstates an intention (which the adoption into law of UNDRIP Article 26 does, unless it really means what it says, in which "breathtaking" is a very mild characterization), the result is an increase in litigation and dissension.  Certainly that is my opinion, but I've practiced law for 40 years in a country (US) whose legal system also stems from the English system.  I've engaged in Canadian legal matters enough to know it is different in some respects from the US system but not that different.  

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Daniel Brown on February 20, 2019

A note: this will be my only response. I'm not interested in engagement as the article only requires refutation. The author's blog lacks merit and I write only to inform readers that the deep flaws in information and context contained within it render it inadequate for serious consideration with respect to conversations of Truth and Reconciliation in Canada.

1. There is a point of passing the law. It codifies what the SCC has consistently directed the government to do and the government has consistently refused to do. The change would be two-fold: 1. The government would stop wasting time on losing cases. 2. Clarity regarding title and consultation would be achieved. Your argument on this point demonstrates that you lack specific knowledge on how Government and the SCC interact on matters of policy and legislation.

2. Since this has been an ongoing file in Canada you can look to every BoT report for the past decade or so for Synodical reference. The Canadian church has been endorsing this change for a long time and we have been part of the dialogue with government for making these changes. This is neither new nor unendorsed.

3. There is no sense debating political involvement. Neither of us agree and neither of us will be persuaded. What is important is the Canadian context of this particular issue. You are approaching this particular policy decision as though it is something novel and theoretical. In the Canadian context these discussions are long had, well studied and are an essential part of ministry being done on the ground. The Canadian ministries would not weigh in on this if we lacked experience, expertise, a clear ministry goal, or support from the churches. You might be catching wind of it through a blog post that you didn't like but we've been wrestling with it for years. To use a sports analogy: you're a football coach coming into the 3rd period of a hockey game that we're winning and questioning why we're using sticks and skates. 

4. This isn't a partisan issue. There is very little for/against language in our body politic. Canadian churches are sensitive to issues of Truth and Reconciliation and have a long and well founded relationship with our structures of leadership and political dialogue. You're inferring a conflict that isn't part of the dynamic here. It is a part of why Canadian matters are dealt with through our own process. 

5. You're not a Canadian constitutional lawyer who has dealt with issues of Treaty. Appeals to your experience don't apply here. It's football and hockey. Canada is a generally less litigious society except in the area of Treaty where the government has consistently tested the limits of those treaties. Adoption of UNDRIP into statute is not new law. It is the incorporation of SCC direction into policy in a way that provides definition to relationship. Will these definitions be contested - absolutely - but this is neither a change in course nor a new thing - it is simply the next step in a process of social, political, religious and economic reconciliation that has gone on for a long time.

Adding a 6th. There is a profound reason that Canadian issues are dealt with through the Canadian process. It is because there are things that are unique to the realities we face. We've been doing this for decades. We are generally happy with the process and trust the people we've put in place to guide us along the path. You are inferring a fight that simply isn't happening here and to be frank - because of your lack of experience, knowledge or context - you're not helping. To borrow from one of yours: "stay in your lane." 

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Doug Vande Griend on February 20, 2019

Dan: It's good to hear that Canadians are so of one mind as to all matters political.  

I'll not respond to your points except this one: In your number 2, you decline to cite to any synodical decision but rather "every BoT report for the past decade or so for Synodical reference."  While I'm quite certain the BOT references Synod and vice-versa -- as to many points -- it seems clear that Synod has not passed on this.  I understand you would probably say they don't have to -- you folks in Canada have been working on this a very long time. 

And I honestly appreciate that Canadian churches have their own political agenda, but that does make me wonder: if the CRC is to increasingly become political (both the US and Canada), and if US and Canadian law and politics are so, so different (as you quite emphatically claim), does it make sense to have a single, multi-national denomination?  Having a single, multi-national denomination does make sense if the purposes of the institutional denomination are ecclesiastical only, but what if they are also political?

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Daniel Brown on February 20, 2019

2016 Acts Article 72. section 8.

In the documents provided to the Canada Corporation, the BoT, and the Advisory Committee to Synod the statement affirming UNDRIP as a framework for reconciliation was presented and endorsed by all three bodies which was then ratified by Synod. This is denominational position, duly debated and passed under the ongoing activities of the Canada Corp.

This concludes our discussion.

 

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Doug Vande Griend on February 20, 2019

You certainly don't need to reply, Dan, but here are my observations and comments:

What you cite above, 2016 Act of Synod, Article 72, Section 8 says:

8. That synod affirm initial actions for justice and reconciliation of the CRC
in Canada that are already in process:
      – the public acknowledgment of “systemic evils behind colonialism,” the
confession of the CRC’s “sins of assimilation and paternalism,” and the
commitment to live “into a sacred call of unity and reconciliation,” as
expressed to the Truth and Reconciliation Commission (TRC) of Canada.
      – follow-up initiatives on the calls to action of the TRC.

This may illustrate our difference rather starkly.  "The leadership of the CRC in Canada" (and you) may see in the above Synod 2016's (pre-)approval for "Canadian leadership" taking a position (now in 2019), in behalf of the Christian Reformed Church, on a particular piece of legislation, Bill (C-262), which would incorporate into Canadian federal law the entirety of UNDRIP, but I can't for the life of me find that in the above (2016 Act of Synod, Article 72, Section 8 ).

And this is where the rub is.  I don't object to the institutional church advocating principles about which it can say, true to its calling and expertise (not to mention CO Art 28), "so says scripture."  The CRC has done that for over a century, and that aligns with CO Art. 28.   What is quite new is deciding that the CRCNA, as denomination, must also lend its name, funding and institutional reputation to lobby (for or against) highly specific legislative proposals, like Bill C-262.

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