Canada Actively Less-than-Active on Aboriginal Rights in the International Scene

September 13, 2007, was a day like any other, full of political brouhahas from the various corners of the world: then-President Bush addressed the nation on the way forward in Iraq; North Ireland introduced a cattle ear tags numbering system;[1] and Canada voted against the adoption of the Declaration on the Rights of Indigenous Peoples.

The Declaration put before the United Nations that day was the result of a process that started in 1985 with the UN Working Group on Indigenous People, given the broadly defined mandate to “give attention to the evolution of international standards concerning indigenous rights”. The general contents of the Declaration include “both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others”. The final vote at United Nations General Assembly that day tallied 143 countries voting in favour of the Declaration, 11 abstentions, and 4 against (Canada, United States, New Zealand, and Australia). While Canada has made various strides in recognizing the rights of its aboriginal peoples, its vote on September 13 provides an example how an overly conservative and protectionist mindset can lead us a step backwards in recognizing the historical wrong-doings to a significant part of Canada’s population.

The Canadian Government provided two broad reasons for voting against the Declaration. The first reason was procedural. During the drafting stage of the Declaration, Canada felt that there was inadequate consultation on several provisions. Agreement within the committee had not been reached by 2005 on certain core issues such as self-determination, aboriginal consent, land and resources. Thus, the Chairperson-Rapporteur released a revised version of the text in early 2006, based on the views of the various parties. This provoked Canada to seek additional consultations on the newest draft Declaration to ensure that all ambiguities would be clarified. On this procedural point, I suspect that Canada’s may have had a valid concern. The fact that certain (allegedly) contentious matters had not been adequately discussed does raise some valid concerns about expediency trumping adequate consultation.

Canada’s second reason for voting against the Declaration was substantive. Canada had problems with the wording of the provision relating to self-government (article 4), aboriginal consent on certain matters (articles 10, 11, 19, 28, 29, 32) and land and resources (articles 25-29, 32). Canada was concerned that the draft legislation could be interpreted as supporting claims by the indigenous people to “broad ownership rights” in land, even in matters that have been settled by treaty in Canada. There was also a concern that the “consent” provisions could be interpreted as providing indigenous people with a veto power on certain issues of public interest, such as legislation, regional development or defence activities. Finally, a concern was raised about how the self-government provision would have an unforeseeable impact on national sovereignty. I am slightly more skeptical about the substantive criticisms reasoned by Canadian government in voting against the Declaration. The very nature of international law provides Canada with adequate comfort in the face of the purported shortcomings.

First, like many resolutions of the UN, this Declaration is largely symbolic. The Declaration is not legal binding, but rather is aspirational. It signals a commitment by signatory states to move in a particular direction – in this case, to support indigenous populations in their general quest for cultural, social, economic and political rights. However, it is up to the state to precisely implement such progress.

This leads to the second point that the Declaration has no power to “create” aboriginal rights in a manner inconsistent with the Charter and Canadian values. As France rightfully asserted (when speaking on the right of self-determination within the Declaration), the Declaration is to be understood within the existing constitutional norms of individual countries. Canada’s assertion that the Declaration may usurp Canadian laws and values goes squarely against the divide that exist between national and international law, which has been upheld by Canadian courts. The Canadian legal system views such conventions as laying only a minimum standard for the content of Canadian values.[2] Moreover, the Canadian government has historically treated its aboriginal communities so poorly that the Supreme Court finally had to formally pronounce in R. v. Geurin that the government has a fiduciary duty towards aboriginals. Given the historical imbalance in power, the worry in Canada is generally not an issue giving aboriginals “too many” rights; on the contrary, the worry has been about treating aboriginal peoples fairly in the face of this imbalance. The Declaration does not create any new rights but rather would consolidate what in Canadian is already a fiduciary duty of government – a duty which is still for it to decide.

Unfortunately, worry over hypothetical interpretations over a declarations whose very impact is uncertain led Canada to its eventual decision, thereby missing a wonderful opportunity to lead the way internationally – particularly amongst western countries – in appreciating its indigenous population.

[2] R. v. Hape at para. 55: “[T]he Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”

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