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Canada condemns UN Declaration on Rights of Indigenous Peoples


Shunpiking Magazine, People of the Dawn First Nations Supplement,
Fall, 2007, Volume 13, Number 49
Revised and updated 19 October 2007

ON September 13 the United Nations General Assembly debated the theme of Indigenous rights, culminating in the adoption of a declaration to protect the rights of indigenous peoples world-wide by an overwhelming vote of 143 in favour and 11 abstentions. Canada, the US, Australia and New Zealand - which have significant indigenous populations - were the only states voting against adoption. [1] Those states voting for the Declaration included the White House's closest allies and the world's oldest colonial powers such as Spain, Britain and the United Kingdom.

The UN Declaration reaffirms the equality of indigenous peoples and individuals, recognizing their rights to political self-determination.

Its text stipulates that indigenous peoples and individuals are free to maintain and strengthen their own political, legal, economic, social and cultural institutions. It recognizes that indigenous peoples, as peoples or as individuals, maintain their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

The safeguarding of their collective human rights and treaty rights is essential for the continued existence and well-being of the more than 5,000 distinct Indigenous Peoples, totalling over 370 million Indigenous persons in the world.

Practically the entire world - peoples and states - reject the suppression of indigenous rights.

In response, the United States, joined by Canada and Australia, the paladin of human rights, strove to block a consensus in the United Nations General Assembly on the issue. In the end, it was the US, Australia and New Zealand who called for a recorded vote.

Bribes offered

According to different news agencies, Canada played a dirty role to frustrate and undermine the UN Declaration. Citing several sources, the CBC reported that "Harper's Conservatives launched a well-financed campaign to derail the declaration ,,, saying Ottawa is trying to keep control of the vast resources on land claimed by aboriginal communities." [2]

One delegate, quoted by the Ottawa Citizen, accused Canada of trying to use promises of aid money to buy African votes. After the African countries announced their support for a revised document, a senior official with the African Indigenous Caucus accused Canada of having tried to use aid as a bribe to keep them on side. "By approaching Africa, which had so many problems, and trying to use aid as a tool, Canada was committing a crime," said Joseph Ole Simel, caucus coordinator. [3]

The IPS news agency also reported: "Before the vote, many indigenous leaders accused the United States and Canada of pressuring economically weak and vulnerable nations to reject the calls for the Declaration's adoption." [4]

Canada's vote was pressed on the world in spite of concessions inserted into the draft at the last moment at the behest of some states. The revised draft was presented as a fait accompli by its co-sponsors, Peru, Guatemala and Mexico, to the Council of Indigenous Issues at the end of August just two weeks before the vote.

These made it explicit that nothing in the UN Declaration can be used "to dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states," marking a retrogression as far as the recognition of the rights of indigenous peoples is concerned.

Many Central and South American Indigenous organizations demonstrated against these amendments, Polysocial of Peru writes, believing that the Declaration "had suffered changes that diminished its content in the spirit of debilitating and restricting its scope." [5]

The Paul Martin government had verbally supported an earlier draft, with objections. However, the Stephen Harper government withdrew that support, following a visit to Ottawa by Australian prime minister John Howard in May 2006. [6]

The Harper government made it clear that the opinion of the world was not one that it cared for. It had its own ideas and plan.

It attacked the states voting for it. Before the vote was called, John McNee, Canada's representative, claimed that the proposal had little support, even within Canada, and that a number of countries and indigenous representatives had not discussed the language proposed with regard to a number of key elements. None of this is true.

The Declaration has been in the making in the UN for 22 years. Its adoption by the United Nations highest body, the General Assembly, was a major objective of the International Decade of the World's Indigenous People (1995-2004).

However, at the end of this Decade, only a mere two Articles of the Declaration had been provisionally approved. The other 43 Articles, relating to the core issue of the affirmation and protection of the collective human rights of Indigenous Peoples, had yet to be adopted. The principal reason for the failure of the draft U.N. Declaration to be adopted during the International Decade was the lack of political will by a number of key governments. These countries managed to block the emerging consensus between Indigenous Peoples and most States. The countries most often singled out by Indigenous NGOs at the UNO were the European Union led by the United Kingdom, the United States, Australia and Canada.

The concept of free, prior and informed consent

In his UN speech, Amb. McNee went on to declare that "some of the provisions dealing with the concept of free, prior and informed consent are unduly restrictive."

Amb. McNee specifically singled out for attack Article 19 of the UN Declaration.

This article states: "States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting legislative or administrative measures that may affect them."

McNee emphatically equated Article 19 with 'the establishment of a complete veto power ... (as) incompatible with Canada's parliamentary tradition."

In other words, Canada can neither accept self-determination for Indigenous peoples nor their rights as individuals. It refuses to recognize Indigenous peoples as sovereign peoples. A sovereign nation by virtue of being necessarily has the right to freely make decisions and determine its own way of life. This implies the inherent right to say NO (the right of veto) to whatever is considered harmful to its members.

Furthermore, Canadian law already allows the annexation of land without consultation, consensus and compensation. For instance, the Crown could have declared a moratorium on all unilateral development on those lands until land disputes are resolved, or "free, prior and informed consent" is obtained from Indigenous peoples asserting rights on those lands. [7] Instead, land annexation is going on pell mell.

Self-serving arguments

Instead of taking responsibility for its racist and genocidal policy by ending it, Indian Affairs Minister Chuck Strahl revealed Canada's determination to continue treating the Native peoples in Canada on a racial basis and to deny them their hereditary rights. He cynically played the race card in response to the UN vote.

In his statement, Shrahl framed the problem as 'Natives" versus 'non-Natives," then demonized "Natives", stating that, if Canada did not oppose the UN Declaration, "the rights of non-native Canadians would have been threatened." In other words, the Minister of Indian Affairs cast the First Nations as victimizers and "non-native Canadians" as victims.

Invoking the ideology of settler colonialism, he appealed to the basest sentiments of "the people who have sometimes also lived on those lands for two or three hundred years" to oppose First Nations rights. Shrahl's fabrications and demagogy is to hide the real problem - a specific contradiction between First Nations and the Canadian state and not with the Canadian people, and the inherent right to self-determination. Canadians have repeatedly expressed their opposition to the treatment of the Native peoples on a racial basis and the Native peoples themselves are waging a persistent struggle for the recognition of their sovereign and hereditary rights and a new relationship with the Canadian federation.

Shrahl, who unsuccessfully tried to dismantle the Canadian Wheat Board as agricultural minister, has taken many racist positions in the past antithetical to First Nations peoples and their ancestral claims. He has publicly referred to members of the Cheam Nation as "children" and the Nisga'a treaty as creating a "separate race-based nation in the heart of British Columbia." [8]

Yet Canada has consistently opposed internationally-recognized language for decades in UN forums. [9]

The allegedly independent positions taken by the four opponents of the UN Declaration are carved from the same colonial tree. For instance, the United States made a great to-do in the UN that it enjoys "government-to-government relations with Indian tribes" and that the US government "recognized Indian tribes as political entities with inherent powers of self-government as first peoples." However, the different collectives of tribes exist as communities of a distinct nation. By not recognizing a people as a nation but solely as a tribe, the US and its allies reduce the question of self-determination solely to an administrative measure. Furthermore, the US Secretary of the Interior under the Dawes Act (the Wheeler-Howard Indian Reorganization Act, 1934) wields veto power over every aspect of tribal life.

A people refers to a collective, in this case a nation. As peoples, the First Nations of Canada have a relationship not with other Canadian citizens but with the Canadian state. It is well known that the Canadian constitution and law neither recognizes the nations of Canada's Indigenous peoples nor the right to self determination of the people of Quebec nor the sovereign rights of the Canadian people and this is precisely the issue at hand.

This backward position is one of the major causes for the ongoing constitutional crisis in Canada, and is also at the root of the backward economic, social, cultural and political position in which Canada's Indigenous population is kept by the state.

Even the Supreme Court of Canada itself in R. v. Gladue [1999] 1 S.C.R. noted that Canada is in "crisis" with the Indigenous peoples and the justice system. [10]

Historians have legitimately questioned that Canada, as the successor state to British colonialism, has underlying legal title to its territorial land base and sovereignty throughout the country. In most cases the Crown did not acquire underlying title land either by treaty or conquest. [11]

A crime abhorrent to humanity

The world community has repeatedly condemned the discriminatory elements of the Crown's policy towards the First Nations as a crime against humanity - most recently in November 2006 by the Human Rights Council of the United Nations. [12] It is said that the Indian Act is the only legislation in the world based on race. It violates international law. The subjugation of nations and the division of the society on the basis of race codified and entrenched in the Indian Act is a crime abhorrent to humanity.

Yet Canada not only votes against the UN Declaration but, in the same month, demonstratively refuses to apologize for the Residential Schools. Why is that?

First - British colonial governments, then, after Confederation, Canada, in addition to residential school abuses, committed many other inhuman and genocidal crimes against the First Nations. These have never been publicly examined nor has the state been held to account.

The reason for this omission is indefensible: the anticipation by government of huge legal liabilities that would ensue from such an outing.

Second - Canadian governments are the architects of the re-engineering of the state in the service of huge monopolies. They aim to act with impunity and make modern day subjugation of First Nations within Canada and on the world scale above the rule of law - the principles of self-determination, human rights and friendly relations between nations.

This is indeed an important issue. Talk about the UN Declaration constituting - in the words of the Australian ambassador - "an aspirational Declaration with political and moral force, but not legal force" is aimed at pulling the chestnuts out of the fire for these states and is not acceptable.

Australia stated, "The text contained recommendations regarding how States could promote the welfare of indigenous peoples, but was not in itself legally binding nor reflective of international law" and further declared that "The Declaration did not provide a proper basis for legal actions complaints, or other claims in any international, domestic or other proceedings." In other words, the entire theme that the UN Declaration is merely "an aspirational Declaration with political and moral force, but not legal force" is to declare that Canada, Australia, the U.S. and others should not be held accountable for their ongoing violations of international law, wars of occupation and genocide of the Indigenous Peoples.

This conciliation serves a neo-liberal agenda. Most of the remaining natural resources are located within the territories of indigenous peoples. About half the world's untapped fossil fuels and most of its threatened natural resources - including the biodiversity that sustains life on the planet and the forests that stabilize our climate - are located on Indigenous territories. [13] Reports in this edition of People of the Dawn, our First Nations supplement, show how every inch of Canada is being fought for and the determined resistance of the First Nations and their allies to monopoly right. Private interests are using their combined political, economic, legal and military power to impose monopoly right to own, control and exploit all land, water and natural resources of Turtle Island (the Americas) and all material blessings produced by the Canadian and Quebec working people. Abroad, Canada's huge mining corporations have an infamous record with Indigenous peoples.

Any way you look at it, the government of Canada does not care a whit for world opinion or international law, for the First Nations, or even that of its own citizens. That is not acceptable.

Endnotes

1 States that neither supported nor objected to the declaration were Azerbaijan, Bangladesh, Bhutan, Burundi, Columbia, Georgia, Kenya, Nigeria, Russia, Samoa and Ukraine.

2 "Canada votes 'no' as UN native rights declaration passes," September 13, 2007

www.cbc.ca/canada/story/ 2007/09/13/canada-indigenous.html

3 Steven Edwards, "Canada in bind over UN's indigenous land proposal; Declaration could lead to reopening of already settled land claims," The Ottawa Citizen, September 13, 2007.

http://www.canada.com/ottawacitizen/news/story.html?id=cca71542-ad36-43c5-8d6d-a18d10aab0e5&p=2

4 Haider Rizvi, "RIGHTS: Native Peoples Score Historic Political Victory," IPS, 13 September 2007.

http://www.ipsnews.net/news.asp?idnews=39258)

In response to a question from IPS, Les Malezer (chair of the Global Indigenous Caucus, and an aboriginal spokesperson from Australia) said there were private commercial interests involved in the political opposition to the declaration of the indigenous peoples' rights. "It has a lot to do with the existing economic order and multinational interests," he told IPS. "In the recent past, there have been many cases in which the indigenous people challenged the governments that allow private corporations engaged in unlawful, but profitable exploitation of their lands and resources." Haider Rizvi, "Native Peoples Renew Call for U.N. Recognition," July 18, 2007.

http://ipsnews.net/news.asp?idnews=38593

5 Magdalena Gómez, "La hora indígena de la ONU," September 12, 2007.

http://polysocial.blogspot.com/2007/09/22-aos-esperando-en-vano-la-declaracin.html

6 Canada had previously voted against the Declaration in the Human Rights Council on 29 June 2006 where it was adopted by a vote of 30 in favour, 12 abstentions, two against and three absent. Russia was the only other country to vote against adoption at the time. Canada called for the vote in the Human Rights Council. Russia recently passed legislation that gave businessmen the right to purchase the traditional territories of Russia's Indigenous People. In the UNGA debate, Russia stated that it was demonstrating its opposition to the Un Declaration by abstaining on the vote.

7 According to the Assembly of First Nations, there is a backlog of 800-1,000 unresolved claims within Canada's own federal specific claims process - in other words, claims involving unsurrendered land and Canada's treaty obligations. Estimates of the total value of these unresolved claims range from 2.6 billion dollars to six billion dollars. It takes an average of 13 years to settle a claim under the current system.

8 Joe Friesen, "Strahl grilled about 1999 criticism of treaty rights; Chiefs demand new Indian Affairs Minister clarify statement that deal created a 'race-based nation," Globe and Mail, August 21, 2007.

http://www.theglobeandmail.com/servlet/story/LAC.20070821.NATIVES21/TPStory/National

9 "Something happened in Vienna at the World Conference on Human Rights held in June 1993 which merits attention. It concerns the story of the missing 's'. At issue was the insistence of the official Canadian delegation at the conference to have the final conference document refer to indigenous peoples as indigenous people -- a critical difference in terms of definition, with significant legal ramifications." Sandra Smith, "Story of the Missing 'S'; Native Rights and Self-Determination," August 19, 1993, reprinted in Mi'kmaq / First Nations History Supplement, Shunpiking Magazine, Volume 5, Number 38, October / December, 2000.

http://www.shunpiking.org/mikmaq/missig-s.htm

10 The Supreme Court stated in its decision: "64. These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem." Jamie Tanis Gladue (Appellant) v. Her Majesty The Queen (Respondent) and The Attorney General of Canada, the Attorney General for Alberta and Aboriginal Legal Services of Toronto Inc. (Interveners). Indexed as: R. v. Gladue.

http://scc.lexum.umontreal.ca/en/1999/1999rcs1-688/1999rcs1-688.html

11 John Borrows, "Questioning Canada's title to land: The rule of law, aboriginal peoples and colonialism," in Recovering Canada : The Resurgence of Indigenous Law, University of Toronto Press, 2002.

12 In November 2004, the Human Rights Committee reiterated that Canada does not have the right to unilaterally extinguish the rights of indigenous peoples; it specifically asked Canada what it is doing to deal with the case of unilaterally extinguishing the rights of Innu people. In 1998, the UN Economic and Social Council issued a strong report that said Canada did not have the right to unilaterally extinguish the rights of indigenous peoples. That was followed by a 1999 report from the UN Human Rights Committee that came to the same conclusion. In the 1980s Canada was found to be in contravention of international human rights law because of Section 12 of the Indian Act, which decreed that if an Aboriginal woman married a non-Aboriginal man, their children would not qualify for Indian status. Sandra Lovelace, a Maliseet from the Tobique community in New Brunswick challenged Canada, filing a complaint, and won.

13 Yifat Susskind , "Annotate This: The UN Declaration on the Rights of Indigenous Peoples," Foreign Policy In Focus, October 5, 2007.

http://www.fpif.org/fpiftxt/4615





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