After months of failed attempts seeking permission to enter Canada and investigate the relationship between Indigenous peoples and Canadians, James Anaya, Special Rapporteur to the United Nations on Indigenous peoples, has arrived. He was greeted earlier this week by more than 50 protests, rallies and round dances across the country (under the banner of Idle No More), most proclaiming treaty rights or rights to land and resources.
As he travels the country over the next week, Mr. Anaya will hear a lot about violations of these rights in Canadian law but also international law, specifically the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP). It’s unclear if any of it will matter.
There is no doubt that the 500-year long struggle for indigenous rights in international law has been hard-fought. Foundational laws like The Doctrine of Discovery and concepts of Terra Nullius declared indigenous peoples non-human and permitted the “legal” theft of entire continents. It wasn’t until 1957, with the United Nation’s Indigenous and Tribal Populations Convention, that indigenous peoples were able to challenge their imposed inferiority. Since then, negotiations with states on the scope and nature of indigenous rights has produced a number of legal instruments, most importantly, the aforementioned Declaration in 2007.
As the preamble states, the Declaration represents a “standard of achievement to be pursued in a spirit of partnership and mutual respect” between states and indigenous peoples. Over forty-six articles, the document espouses rights to define membership and identity, rights to have previous poor treatment redressed and the right to revitalize their traditions and cultures. Rights to participate in both domestic governments that make decisions that affect indigenous peoples and their own governance systems, the right to self-determination. Of course, there is also the right to free, prior and informed consent on all legislation or development plans affecting indigenous peoples.
Yet there are also problems with Declaration. The most significant is the last Article, included in eleventh-hour negotiations as a bone for states. Article 46 states that “Nothing in this Declaration may be interpreted as…encouraging any action, which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” Unfortunately “territorial integrity” and “political unity” can be interpreted unilaterally by those states. When Australian officials endorsed the UNDRIP they noted, “our concerns with free, prior and informed consent will be interpreted in accordance with Article 46.” This is effectively a backdoor out of the Declaration.
Moreover, the UNDRIP requires only voluntary implementation by states, which ultimately reduces the relationship to status quo ante – indigenous peoples struggling to convince Canada to recognize rights. In this sense, the tools of international law fall within the scope of what Glen Coulthard calls “the politics of recognition,” a form of negotiation that entrenches and reinforces state authority over indigenous peoples by requiring the latter seek validation and permitting the former to offer modification of any potential rights. When confronted with a country adverse to indigenous rights, this is a big problem.
Canada is indeed adverse. Despite the malleability of the Declaration, officials from this country first lobbied hard against it (leading the United States, New Zealand and Australia along). Then, when finding itself the very last hold-out to endorsement, eventually acquiescing but with stipulations: former minister John Duncan emphasized the Declaration as “aspirational” and “non-binding” and that the Articles were already “consistent with this government’s approach”. When Mr. Anaya was invited by the Union of B.C. Indian Chiefs to investigate violations of the Declaration in Canada, the government refused to respond to his requests for eight months.
So, will any of Mr. Anaya’s work in Canada actually lead to change? Given that the deference the Declaration offers states doesn’t go far enough for Canada or that minimum standards of internationally protected rights beyond those established in domestic law (and then barely those) have yet to even be considered, it is difficult to imagine how Mr. Anaya might help. Certainly communities will express frustration and demonstrate unfairness. Mr. Anaya will then write a report to be used by educators and activists to shame Canada. But they’ll be dealing with a government impervious to shame (consider the unchanged legislative agenda post-Idle No More).
Thomas Berger called the treatment of indigenous peoples under international law a “long and terrible shadow.” When that shadow started to recede with the endorsement of the Declaration, Cree legal scholar Sharon Venne proclaimed indigenous peoples were finally “subjects as opposed to objects” of international law. I agree with both sentiments. But International law or Special Rapporteurs have yet to stop the alienation of indigenous peoples from the land and the resulting socio-economic challenges in Canada. Until there is a government willing to seriously consider the Declaration, to embrace “the spirit of partnership and mutual respect” those tools will continue to fail.