Justice Minister Jody Wilson-Raybould called the adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) into Canadian law “unworkable” in a statement to the Assembly of First Nations today.

During a speech to the AFN’s annual general assembly in Niagara Falls this morning, Wilson-Raybould, a member of the We Wai Kai Nation in B.C., described a cut-and-paste approach to making UNDRIP compatible with domestic laws an overly simplistic and untenable method of protecting indigenous rights in Canada.

“As much as I would tomorrow like to cast into the fire of history the Indian Act, so that nations can be reborn in its ashes, this is not a practical option,” said Wilson-Raybould. “Which is why simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.”

Wilson-Raybould and her colleague Indigenous and Northern Affairs Minister Carolyn Bennett have been the target of a campaign by NDP MP Romeo Saganash to have them support his private member’s bill, C-262, which calls for Canada to make UNDRIP Canadian law.

In May, both Wilson-Raybould and Bennett announced that Canada would no longer object to UNDRIP within the United Nations’ fora that deal with indigenous rights issues and that they would adopt the declaration in Canada, within the confines of Canada’s constitution.

That caveat was interpreted by some — including Saganash — as a way for the government to step back from adopting UNDRIP as Canadian law as is.

The government would still have the option of building a stronger indigenous rights regime by building off existing protections for indigenous rights to self-government and land title. The federal government has been heavily criticized for protecting those rights in an uneven and acrimonious way for decades, often leaving indigenous groups no option but to take Ottawa to court.

On Tuesday, Wilson-Raybould signalled her government’s intention to build a made-in-Canada approach in building a stronger regime for indigenous land and government rights.

According to Wilson-Raybould, the government needs indigenous nations to step forward with ideas for legislation and policy that will eventually wipe out laws like the Indian Act.

“What we need is an efficient process of transition that lights a fire under the process of decolonization but does so in a controlled manner that respects where indigenous communities are in terms of rebuilding,” she said.

That approach is consistent with article 38 of UNDRIP, which says states will take the appropriate measures to achieve the ends of the declaration, said Wilson-Raybould.

These consultations are designed to help Ottawa first recognize indigenous peoples as nations, help facilitate a legislative transition and create a national reconciliation framework, she said.

In finer terms, that will mean the negotiation of modern treaties under new mandates, the negotiation of other types of arrangements that allow for indigenous decision-making and respecting the situations of rights-holders where historic treaties or no treaties yet exist, she said.

“This work will be controversial and it cannot take multiple generations,” she said.

In an interview this past May, INAC senior assistant deputy minister Joe Wild said the government sees Section 35 of the Constitution Act as the basis for an expansion of indigenous rights. That process includes dismantling laws that indigenous groups consider to have been unilaterally imposed on them like the Indian Act.

While Section 35 has been on the books for decades, Wild said Ottawa was changing its position by interpreting the law as a “full box of rights” rather than an “empty box of rights.”

The key distinction is that formerly the government allowed for section 35 rights to be defined gradually and often in adversarial settings like legal challenges, while now Ottawa wants to proactively build a set of policies and laws that define clearly what indigenous nations are entitled to under Canadian law.

At the time, Wild said that process goes hand-in-hand with a broader process whereby the federal government is asking indigenous peoples — some of whom are already organized as nations in a legal format and some of whom aren’t — to bring forward ideas on how to restructure policies and laws so that they align with section 35.

Wild described these talks with indigenous peoples as “exploratory tables,” and said they’re meant to provide input on how the government can improve relations in a diverse way considering the different stages of political development across the country.

The federal government sees the fundamental concept beneath section 35 and UNDRIP — which recognize the existence and rights of indigenous sovereignty before contact with European powers — as one and the same, said Wild.

That opens the door to Wilson-Raybould and Bennett being able to describe section 35-based reforms as in line with UNDRIP adoption, though this would be in a more roundabout way than the direct adoption Saganash has called for.

On Tuesday, Wilson-Raybould said that a gradual process of enacting new legislation and policy based on section 35 will eventually mean that UNDRIP will be “articulated” in law.

“Ultimately, the United Nations declaration will be articulated through the constitutional framework of section 35,” she said.

In reaction to Wilson-Raybould’s statements, Saganash asked in a tweet if the UNDRIP adoption announcement in May was just “smoke and mirrors.”