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.
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