LEGISLATING OUR EXTINCTION

LEGISLATING OUR EXTINCTION
STATUS LINE - DO NOT CROSS

Saturday, November 13, 2010

The Illusion of Justice in Canada - The Conservatives Conditional Support of UNDRIP

I was having a hard time deciding between several important issues that I wanted to write about in my blog this week. I was really struggling between the injustices against our Indigenous peoples noted in Howard Saper's Corrections report, the fact that Sharon McIvor is forced to take the plight of Indigenous women to the United Nations or Canada's hollow endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). All of these issues are important and deserve far more critical attention than they are getting.

That is when I realized that these issues are part of a shameful pattern on the part of the Conservatives. The Conservatives have created an illusion that they are addressing justice issues faced by Indigenous peoples here in Canada by promoting their pretend platform on human rights and equality. Some readers might think this is an overly critical assessment of what seems to be a very progressive agenda - but I would ask those readers to look beyond the media hype and dig deeper to what is ACTUALLY being promised and what is not.

I have to start with UNDRIP because Canada's alleged "endorsement" of it is the biggest illusion of all. As we all know, Canada was one of 4 states that refused to sign UNDRIP along with the USA, Australia and New Zealand. These are some of the countries with the largest Indigenous populations who suffered greatly under the colonial laws, rules, and policies implemented by these States. Their collective refusal to endorse UNDRIP sent a strong message to Indigenous peoples that their colonial rule would continue for some time to come.

Australia subsequently changed its mind and decided afterwards to issue a conditional Statement of Support for UNDRIP and New Zealand soon followed suit. That left Canada and the United States on the hot seat, so to speak, and their failure to endorse UNDRIP a major political impediment to Indigenous-Crown relations. Therefore, the Conservative government made a commitment in its speech from the throne in the spring of 2010 to endorse UNDRIP:

"A growing number of states have given QUALIFIED RECOGNITION to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws."(emphasis added)

It is now November 2010 and we are only just getting the alleged "endorsement" now. I say "alleged" because words mean everything in the world of politics. We know from our collective experiences with treaty making and implementation, that the Crown does not always act honourably in its dealings with Indigenous peoples. In a letter from T. Bannister to the Council of Trade and Plantations, one European colonist wrote about the shameful ways in which treaties were being "negotiated" with Indigenous peoples:

"Their quarrels and wars were not for ambition, empire or bloodthirstiness but to defend their property and bounds...

Their injuries have been very great, as divesting them of their land by force or fraud, first making them drunk and then to sign what they knew not what...

Ad to this our inhumanity to them ... We vilify them with all manner of names, and opprious language, cheat abuse and beat them, sometimes to the loss of limbs, pelt them with stones and set dogs upon them ... too often an Article of Peace has run in one sense in English and quite contrary in Indian, by the Governor’s express order...".


I would like to think that Canada has moved past some of its double-dealings of the past, but this limited endorsement of UNDRIP by the Conservatives proves otherwise. From one side of their face they promise to make changes to address our issues and from the other side, they rally public support against us and find creative political spin to keep from acting on their promises. Canada did not truly, in letter and spirit, endorse UNDRIP - they issued a "Statement of Support" that does not change Indigenous rights (or lack thereof) in Canada. This is not my own personal opinion that I am espousing; I am taking this straight from the horse's mouth. What follows is a summary of Canada's "Statement of Support":

(1)"The Declaration is as ASPIRATIONAL document..." (the definition of "aspirational" is a "cherished desire"; something for which one "wishes")

(2)"the Declaration is a NON-LEGALLY BINDING document that does not reflect customary international law NOR CHANGE Canadian laws" (emphasis added)

(3)"Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties. THESE CONCERNS ARE WELL KNOWN AND REMAIN." (emphasis added)

(4) "We are now confident that CANADA CAN INTERPRET THE PRINCIPLES expressed in the Declaration in a manner that is consistent with our Constitution and legal framework." (emphasis added)

Those are the highlights of what Canada ACTUALLY signed. These are the limits under which it "supports" UNDRIP - i.e., so long as it has NO legal affect in Canada. For those who might think that I am somehow misinterpreting what Canada means by their conditional support, INAC's own press release again clarified that:

(1) "the Declaration is not legally binding" and

(2) they are only endorsing it as "an aspirational document" and NOT as a legally binding document.

For those who have any further questions about what this all means, INAC also provides a section entitled "Frequently Asked Questions". In answer to the question of whether a State which originally voted against UNDRIP can change its mind, INAC very clearly says "There is no official way for a State to change its position on a declaration". All it can subsequently do is issue a Statement of Support. Canada knew this when it originally voted against UNDRIP. In answer to the question of what UNDRIP means: "The UNDRIP is a non-legally binding aspirational document". I am not sure how much clearer they could have made their position.

So, at the end of the day, all Canada has done is publicly support the cherished wish list of Indigenous peoples but that wish list will not have any legal application or effect in Canada. Regardless of this striking fact, one might argue that Canada could still make significant and substantive changes to its relationship with Indigenous peoples and take transformational action to address serious social, economic, political, cultural and legal issues impacting on the well-being of Indigenous peoples, the majority of which it caused through its colonial laws and policies.

Sure....Canada "could" do that - the question is will it? Well, let's see what Minister of INAC John Duncan had to say:

http://aptn.ca/pages/news/2010/11/12/canada-finally-backs-un-indigenous-declaration/

You will note in the above interview with APTN, that Minister Duncan re-affirms that UNDRIP is an "aspirational" document only that has NO legal application in Canada. Furthermore, on whether Canada's endorsement of UNDRIP will bring about significant changes for Indigenous peoples in Canada, Minister Duncan responds that Canada has its "own agenda" and as a result does not "anticipate any significant change".

So, once again I am still asking myself what the heck is everyone so excited about? Why on earth would the Assembly of First Nations celebrate this announcement? Why would First Nations leaders appear in the media and praise Canada for making such a significant commitment to the rights of Indigenous peoples? Did anyone take the time to actually read what the Statement said or what INAC said its alleged "endorsement" means?

Here is a brief overview of the state of Indigenous peoples in Canada right now:

(1) Indigenous peoples have the lowest socio-economic conditions of all groups in Canada - meaning the lowest education and employment rates coupled with the highest disease, poverty and violence rates;

(2) Funding for essential social services like post-secondary education, drinking water infrastructure, and child welfare are all so grossly underfunded and unequal when compared to non-Indigenous funding, that even Canada's Auditor General has criticized Canada for its lack of action in addressing it;

(3) Indigenous women in Canada do not enjoy even BASIC equality rights that are enjoyed by non-Indigenous women and now Sharon McIvor is being forced, after 25 years of litigation and struggle, to seek redress at the United Nations for Canada's lack of action;

(4) Hundreds of land claims remain unresolved despite Canada's promise years ago to bring about "revolutionary" change to the ways in which claims were handled; and

(5) Our people are homeless on their own traditional territories, our women are murdered and missing at alarming rates, our children are taken from our families and communities at rates as high or higher than during the 60's scoop, our men and women are incarcerated at a higher rate that non-Indigenous people, and racism is still prevalent within our justice system and leads to deaths while in custody, starlight tours, and utter neglect.

If Minister Duncan is right and Canada will not make any significant changes to how it deals with Indigenous issues and will simply continue to advance its own agenda, then what good does their conditional support of UNDRIP do for us? Why would our political leaders be so quick to praise Canada for agreeing to do literally nothing on our behalf?

At this rate, our reserves will be turned into private property and sold to big business by the Flanagan-Jules plan; those remaining reserves will all be occupied by non-Indians through Bill S-4 MRP laws; and if anyone remains after that, they will all be legislated out of extinction by Bill C-3's discriminatory status provisions.

The Conservative's conditional support of UNDRIP creates an illusion of justice in Canada - it is our choice whether we stand beside them and accept it. If our leaders won't stand up for us then it is time that the people told their leaders to step aside and let our people stand up for themselves.

10 comments:

  1. Troy linked to this excellent review of what actually has transpired. Thank you, Pam.

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  2. Thanks, Pam. I linked to your story.
    I was almost ready to conditionally congratulate the Conservatives today, but your post convinced me to reverse course.

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  3. Thank you both for your comments. I love to hear from folks and the support is always inspiring. If we all work together we more capacity to dig through the surface and get at the real issues!
    Pam

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  4. Hopefully, you'll get more feedback. I'm trying to share this excellent post with as many people as possible.

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  5. As a Treaty 8 Indian living in the USA, I actually rely quite heavily on your weekly writing to keep me informed on the latest developments back in Canada regarding Aboriginal rights and infringements.

    Thank you for the summarization of the UNDRIP as I can see the loopholes of terminology employed by the Canadian Government... "aspirational" kind of loses its lustre in a legal sense doesn't it? In other words, an aspiration is a dream, but not a legally enforceable one.

    Yet, all this usage of "aspirational" was already qualified and legally unenforceable as the UNDRIP was clearly limited as a "Not legally binding document" in any event. It reads like a one-sided prenup in favour of the wealthy husband. Upon further thought I should say it reads like a horrid post-nup agreement that simply reaffirms the terrible inequity between the powerful spouse with all the assets and control (in this case the Canadian Government) over a spouse with no income and little influence (the Aboriginal peoples of Canada). Perhaps a bad analogy, but one that comes to mind.

    'Fluff' is a better word for what the Canadian Government has trotted out BUT I also believe they have now painted themselves at the very least into a corner of now having to look rather foolish at the UN level as well as domestically. Why? They signed the UNDRIP, but can now be called upon to justify to the rest of the world why they will not initiate a conscious recognition of their participation as a signatory to the UNDRIP.

    I do hold some hope at the UN level for the possibility of influence. The Canadian Government was literally shamed into taking action (Bill C-31), albeit after three years, from the appearance of a small group of Native women to the UN to plead for intervention on the loss of identity, status and rights under the Indian Act for marriage to a non-status man. This latest step by the Canadian Government has at the very least involved the UN in the mix. That has garnerned some success in the past, so perhaps it may again.

    As always - Mahsi Cho Pam for all you do.

    Aleta

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  6. Hi Aleta;
    Thanks for the comments and your ongoing support. I agree with you. As with all international documents, Canada has the choice to support them, sign them and implement them with implementing legislation if it wants to do so. The problem with UNDRIP is that Canada wants to get credit for being seen to support Indigenous peoples when in actual fact - by its own words, Canada will not be doing anything differently. Canada will not be implementing UNDRIP into Canadian law. THerefore our options remain the same - we have to take the battle to our courts or the international ones, but in neither can we rely on UNDRIP. I am with you though, I am hoping for the best and have great faith in our Indigenous women who stand on the front lines for our future generations. Pam

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  7. So, what might be the next step in this process involving the United Nations Declaration of Rights of Indigenous Peoples? I believe Canada will continue to do nothing different in dealing with First Nations and Aboriginal people, even if it should offer unqualified recognition of the UNDRIP.

    It will be incumbent on First Nations / Aboriginal peoples to take the next step - be it a declaration of sovereign rights or some form of negotiated agreement with Canada.

    How this is might be done is often debated in First Nations Assemblies and gatherings, in the the living rooms of people.

    I had a discussion with a Chief who has aspirations to lead his people to in developing their own constitution followed by their own set of laws dealing with rights of its citizens, justice, education social services, etc. We agreed this to is the correct direction but the sticky point for me was how this was going to be accepted by the Canadian government and how was the First Nation going to politically maneuver its next step.

    So what I'm saying, First Nations have got to address the federal government inertia when dealing with First Nation rights and development. Wayne

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  8. Wayne wrote..."It will be incumbent on First Nations / Aboriginal peoples to take the next step - be it a declaration of sovereign rights or some form of negotiated agreement with Canada."...
    Exactly, it is only when Indigenous Peoples exert their rights as peoples & Nations do they get anywhere. That said it is heartening to witness just how many people understand that the Con's signing of UNDRIP is more about perception than anything else

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  9. What if white people wanted to sign on to this constitution? What if it became a democratic movement? Would that be inclusive?

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  10. As a non-First Nations/aboriginal Canadian I feel I have no right to say or suggest anything. I don't know what it is like to live with this. What little I do know is from friends and I do know that my friends shouldn't have to. So do what is necessary for your rights, justice and healing.
    When it comes to Harper, we must always remember he is like a magician, sure he signed it but only because, as you wrote, it creates an illusion of justice. It means nothing in terms of action or real change.

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