The game was simple: the consensus is assumed right and the four nations (now three) are supposed to feel embarrassed


By —— Bio and Archives September 29, 2009

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By Joseph Quesnel
Back in the Middle Ages it was assumed that the earth was flat or the sun revolved around the earth, - which is to say, as Copernicus later demonstrated, that the consensus on “the facts” can be wrong no matter how many people agree with them.

Something like this flat-earth assumption is facing leaders in Canada, the United States, and New Zealand when it comes to the UN Declaration on the Rights of Indigenous Peoples—an issue which was recently raised again after Australia reversed course and signed the document. This impressive-sounding document was ratified by the United Nations in September 2007, with 143 votes in favour, 11 abstentions, and four states – Canada, the US, Australia and New Zealand -voting against.

At the time, critics of the Conservative government’s position, including former Assembly of First Nations (AFN) chief Phil Fontaine, couched their criticisms in language intended to embarrass Canada. The game was simple: the consensus is assumed right and the four nations (now three) are supposed to feel embarrassed.

Not surprisingly, all states opposed to the UN declaration actually contain indigenous peoples. While some argue this demonstrates that “settler nations” are continuing their “oppression” of indigenous peoples, it is conceivable each “dissident” state has legitimate reservations about the Declaration: each realize matters are complicated when it comes to Aboriginal rights and they understand this one-size-fits-all Declaration is in potential violation with each country’s internal legal and constitutional order.

For example, New Zealand is concerned that Declaration provisions which require “full consent” of indigenous people over legislation that affect them will give one group in a country, Aboriginals, a stranglehold over legislation. In Canada, there are concerns provisions within the Declaration could open ratified land claim agreements. This would be lousy policy for all parties involved, including First Nations.

But pressure built on the remaining states to ratify the Declaration after Australia’s new government signed on this past spring. Canada, the U.S., New Zealand and the 11 abstentions, however, should hold their ground. Appearing “progressive” – which is all signing the Declaration would be - is no substitute for substantive action that would make a real difference in the lives of Aboriginals.

The reality is that this Declaration is unnecessary in Canada. Aboriginals already have entrenched constitutional and treaty rights under Section 35 of the Constitution Act. For instance, the Supreme Court and lower courts have ruled resource companies developing on traditional territories must consult and accommodate Native interests. Not signing it will not impact Aboriginal rights in Canada.

The latest target of this, “do it because everyone else is doing it” mentality is US President Barack Obama. Native American leaders are already demanding Obama ratify the UN Declaration, which his predecessor did not.

But why? Native American tribes in America enjoy a high level of tribal sovereignty. The U.S. Supreme Court long ago recognized that Native communities were “domestic dependent nations” and indigenous people in the U.S. have a level of independence from the government (independence that would make Canadian Aboriginals envious), including an impressive network of tribal courts.

If Obama was serious about “hope and change,” he should be encouraging Native Americans to enter into the mainstream, following his own inspiring story, one of the advancement for minority Americans within the system, not outside it.

The UN Declaration emphasises the differences which exist between indigenous peoples and the wider community. It pays lip service to individual rights while its provisions speak loudly that this is a collective rights-centred document.

It is ironic that while past Native leaders in Canada, such as Fontaine, played up the UN Declaration and expressed their “shame” over Canada’s non-ratification, they ignored a bill which aimed to include First Nations within Canada’s human rights legislation, from which they have been excluded since 1977. In other words, while Native leaders shuttled back and forth to Europe to argue over the Declaration’s ratification, First Nations were denied rights to non-discrimination in this country.

The debate over the UN Declaration allowed Native leaders to turn the spotlight away from First Nation accountability and transparency issues once again by posturing on the international stage.

If Canada and the United States adopt this Declaration, it will not advance average indigenous peoples or improve band governance. It will not allow them to access the commercial mainstream. It will only enrich a new class of lawyers and activists who will press for Natives to be treated even more differently than before.

The work of advancing Native rights begins here, not in Geneva or New York; it is best to ignore the flat-earth consensus being played out at the United Nations.

Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy, where he writes about aboriginal policy, among other matters. He is also co-author of the third annual Aboriginal Governance Index.


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