Back in the Middle Ages, that the earth was flat or the sun revolved around the earth was assumed-which is to say, as Copernicus later demonstrated, the consensus on “the facts” can be wrong no matter how many people agree with it.
Something like this flat-earth assumption is the situation facing leaders in Canada, the United States, and New Zealand regarding the UN Declaration on the Rights of Indigenous Peoples–an issue raised again recently 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 voting against (when Australia originally voted against it).
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” opposed are continuing their “oppression” of indigenous peoples, it is conceivable these states oppose it for a justifiable reason: they 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.
In other words, each “dissident” state has legitimate reservations about the Declaration. For example, in New Zealand, there are concerns Declaration provisions that 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.
When a new government in Australia ratified the Declaration this past spring, pressure built on remaining states to follow suit. But Canada, the U.S., New Zealand and the 11 abstentions should hold their ground. Appearing “progressive” is no substitute for substantive action that would make a real difference in the lives of Aboriginals.
The reality is 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 this international document will not impact Aboriginal rights in Canada.
The latest casualty of this, “do it because everyone else is doing it” mentality is President Barack Obama. Native American leaders are already demanding Obama ratify the UN Declaration, which his predecessor did not.
But why is this necessary? Native American tribes in America enjoy a high level of tribal sovereignty. Long ago, the U.S. Supreme Court recognized Native communities were “domestic dependent nations.” Indigenous people in the U.S. have a level of independence from the government that would make Canadian Aboriginals envious, including an impressive network of tribal courts.
If Obama was serious about “hope and change,” he could encourage Native Americans to enter into the mainstream. His own inspiring story is one of advancement for minority Americans within the system, not outside it.
The UN Declaration up the differences between indigenous peoples and the wider community. It plays lip service to individual rights while its provisions speak loudly that this is a collective rights-centred document.
It is ironic in Canada, while past Native leaders such as Fontaine played up the UN Declaration and expressed their “shame” over Canada’s non-ratification, they ignored a bill aiming to include First Nations within Canada’s human rights legislation, which they were excluded from since 1977.
While Native leaders were shuttled on flights to Europe and placed in hotels to argue over the ratification of this Declaration, 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 and onto 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 that 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.