Support Indigenous People’s Rights

Joseph Quesnel recently argued on these (NP) pages (“Don’t give into UN group think,” Oct. 16) that the United Nations Declaration on the Rights of Indigenous Peoples is nothing more than a “superficially impressive sounding document,” a UN “shenanigan.” The article seems to respond to increasing indications that two of the three remaining countries still refusing to accept the declaration, New Zealand and the United States, are re-considering. That will leave Canada — the lone independent thinker in the international community, according to Quesnel.

Quesnel suggests that Canada should maintain its rejection of the declaration. It is “unnecessary” here because “Aboriginals already have entrenched constitutional and treaty rights under Section 35 of the Constitution.” Yet, despite the inclusion of “aboriginal rights” in Canadian legal discourse for nearly thirty years, little has changed. First Nations, Métis and Inuit peoples are still the most marginalized groups in the country, perpetually at the bottom of every socio-economic indicator: health, education, housing, employment, etc.

Quesnel effectively argues for the status quo.

The declaration, on the other hand, represents change. It’s the turning point after four hundred years of excluding indigenous peoples from international law. This goes back to the “Doctrine of Discovery,” which stated that non-Christians could not own land (allowing for the “legal” theft of entire continents). In contemporary times, the UN’s Convention 107 defined indigenous peoples as “populations” (human rights protection was extended to “peoples” exclusively). Finally, around the same time “aboriginal rights” appeared in Canada, the UN reversed course and created the Working Group on Indigenous Peoples.

The group quickly became the most attended forum at the UN. It sought to protect against the unique threats faced by Indigenous peoples: cultural genocide through assimilation policies, illegal dispossession of lands and resources, erosion of self-determination and so on. Their work — three decades of research, debate, testimony and negotiation — culminated in the declaration: a series of non-binding, aspirational commitments that states could strive toward. In September 2007, it was adopted by 142 countries.

It includes rights to have previous poor treatment redressed and rights to lands and resources never surrendered; the right to revitalize traditions and cultures as well as the restoration of burial grounds; rights to control education systems; rights to determine membership and citizenship codes; rights to intellectual property; and rights to traditional economies.

Soon after the declaration’s ratification, the Minister of Indian Affairs, Chuck Strahl, fretted that the declaration “could be used to challenge and re-open historic and present-day treaties and to support claims that have already been dealt with.” Quesnel used similar language, stating that “provisions within the declaration could serve to re-open ratified land claims agreements.” Both apparently overlooked Article 37 of the UNDRIP which states that “nothing in this declaration may be interpreted as diminishing or eliminating… treaties, agreements and other constructive agreements.”

Canada’s alternate excuses for rejecting the declaration also fail to bear scrutiny. Strahl has claimed that the declaration “does not recognize Canada’s need to balance indigenous rights to lands and resources with the rights of others.” Yet, Article 46 allows limitations on the declaration to ensure the rights of others are respected. Indeed, the declaration accommodates states: “Nothing in this declaration… should be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.”

So, why do the federal government and Quesnel, really oppose the declaration? Perhaps because it would mean dropping appeals on court cases, such as McIvor, that encourage expanding the definition of “Indian.” It would mean protection for the Cowichan tribes when their sweater designs are stolen for the 2010 Olympics. It would mean First

Nations would be consulted, not incarcerated as the Kitchenumaykoosib Inninuwug and Ardoch Algonquins were, in cases where they oppose resource development on their land. It would mean the Lubicon Cree might survive amid the destruction of their livelihoods in the Alberta oil sands.

By refusing to sign the declaration, the federal government allows First Nations, Métis and Inuit peoples to affirm their cynicism. Because the declaration is an articulation of their concerns and desires, because it represents their genuine participation in global governance for the first time and because it’s a rare source of hope, Canada’s continued opposition is a disappointing reflection of ongoing apathy and neglect.

National Post (archived)

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Native reserves aren’t the problem

Mould-infested homes, contaminated water, dirt roads: It’s hard to advocate for Canada’s native reserve system in light of the obvious dilapidation. Nevertheless, Jonathan Kay’s recent column advocating the dismantling of the system (“Off the Reservation,” Oct. 23) is woefully inaccurate, and fails to identify the real barriers to First Nations development.

The foundation of Kay’s column rests on two myths. First, that the federal government spends “over $8-billion on reserve-resident natives, or $80,000 per reserve-resident household.” In reality, 50% of that amount pays the salaries of bureaucrats and government lawyers. Moreover, federal funding is not keeping pace with the fact that indigenous peoples are the fastest-growing population in Canada. As such, the actual amount spent on First Nation families is less than half that spent on their counterparts in Canadian jails.

Kay’s assumption that self-government doesn’t work is also wrong. Self-governing First Nations actually have fewer health, education and substance-abuse challenges. The Harvard Project on American Indian Economic Development even found that self-government is a key factor to establishing stable First Nation economies.

As for Kay’s “three well-observed empirical truths learned the hard way,” which are supposed to act as an indictment of the reserve model, they are equally untrue in relation to reserves.

First, Kay attacks rural Canada, suggesting that rural economies don’t generate wealth. Yet Canada’s economy is driven by resource exports. The oil, energy, forestry and mining industries are all based in rural Canada and in proximity to First Nations.

If Canada and the provinces fulfill their consultation obligations regarding development that affects First Nations, there is a real chance for prosperity. Attawapiskat is in the diamond business, Pikangikum in forestry, the Blood and Siksika in oil and the eastern Cree in electricity. Kay wants First Nations to move away from their homes and land at precisely the time when it’s becoming profitable to stay.

Next, Kay makes numerous references to the Iron Curtain and Karl Marx, as if First Nations were communists, even making the assertion that the reserve system persists as a “utopian experiment.” In fact, Canada designed reserves with the opposite in mind. The 195 sections of the Indian Act have handicapped reserves with malicious policies such as the criminalization of economic transactions without the permission of an Indian agent. How’s that for a free market?

True, many indigenous peoples do view the land as communal. More specifically, many view it as sacred, as their Grandmother. How do you parcel up and sell your Grandmother? In fact, privatizing reservation land was attempted once in the United States under the Dawes Act. It led to the wholesale pillaging of Indian lands by outside speculators.

Real barriers to economic development include the Indian Act, a lack of formal education, limited access to capital, and ineffective government co-ordination. Canada needs to immediately review the negative impacts of the Indian Act and find solutions to address the restrictions that limit economic development.

The federal and provincial governments must also draft large-scale and co-ordinated strategies for economic development. Currently, Canada operates under the 17-year-old 1989 Canadian Aboriginal Economic Development Strategy, which the Auditor-General eviscerated in 2003. Access to capital can be achieved with the settlement of land and treaty entitlement claims. Recently, Price Waterhouse calculated the cost of not settling treaties in British Columbia at $1-billion in lost investment and 1,500 jobs per year.

For the last 150 years, Canada has essentially legislated Indians out of the economy. However, this does not mean reserves should be abandoned in favour of more assimilation as Kay suggests. Instead, reserves need economic development that is integrated with traditional values and overseen by native leaders, something that is owed to First Nations and well overdue.

National Post (archived)