Assembly of First Nations National Chief Shawn Atleo holds up the United Nations Declaration on the Rights of Indigenous Peoples during a news conference in Vancouver, British Columbia January 24, 2013. Ottawa has been leery of adopting its principles.ANDY CLARK/Reuters
Thirteen out of the 94 recommendations of the Truth and Reconciliation Commission invoke the United Nations Declaration on the Rights of Indigenous Peoples – including, naturally, the one that calls on Canada to adopt and fully implement the declaration itself.
The federal New Democrats and the Liberals have already committed themselves to do so, along with all the other TRC recommendations. The Conservative government hasn't been quite so enthusiastic. Who's right?
When the UN General Assembly passed the declaration in 2007, some were surprised that Canada, often a country reputed for its internationalistic high-mindedness, did not vote in favour. Three years later, the federal government accepted the declaration as an "aspirational document," but not as a treaty that can be enforced in Canadian courts. Ottawa's caution is reasonable.
It's not easy to define "indigenous" coherently. Nonetheless, indigenous leaders who have engaged with the UN and other international organizations have recognized considerably similar histories: many of them communities that not long ago were hunter-gatherers or at least pre-modern, whose former ways of life have had traumatic encounters with modernizing societies – and de facto conquest by Europeans, based on the flimsiest of claims.
As a result, there is now a strongly-felt attachment, among some native Canadian leaders, to the international dimensions of indigenous experience. That sentiment is entitled to respect.
Even so, adding new layers of politics and law could do more to tangle, confuse and bewilder the relationships between First Nations and Canada as a whole.
It's characteristic of UNDRIP (an awkward acronym) that the preamble contains an assertion of the right to self-determination of indigenous peoples and the right to "freely determine their political status." Consider that the Canadian Constitution does not give any province a right to exercise self-determination by separating from the rest of Canada. So the UN declaration, as if it were a binding international treaty, at first raises a spectre of a whole constellation of independent native statelets.
Much later on, however, UNDRIP in effect says, We didn't really mean it. Article 46 reassures us the declaration doesn't authorize the dismembering of any sovereign and independent state. So is the talk of self-determination in the declaration enforceable, or aspirational and rhetorical? Both? To what extent? It's not clear.
The declaration also asserts the right of indigenous peoples to "establish and control their educational systems." Education is certainly at the core of aboriginal policy in Canada. Native communities want educational funding, and increases to that funding, with less federal interference. The federal government has been willing to offer more funding, but under conditions. Would adopting the declaration have any impact on this? Would it order Ottawa to cede greater control over native education to native politicians? Unclear.
Another fraught area is economic development. Article 32 appears to say that indigenous peoples have to give consent to the use of their lands. But in Canada, the extent of a community's lands is not always clear. In recent years, the Supreme Court of Canada has recognized aboriginal title, but not as an absolute right. There can be an "infringement" if there is "a compelling and substantial public purpose." That's far from precise, but at least it attempts a balance. Would adopting UNDRIP alter that balance?
Jim Prentice, recently the premier of Alberta, was the minister of Indian affairs for the first year and a half of the Harper government, and he re-emphasized his commitment to aboriginal policy by taking on that portfolio in his brief premiership. He was and is a moderate Tory.
But in 2007, after the declaration was passed at the UN, Mr. Prentice replied to a question on it in the House of Commons, saying, "We have not yet arrived at a text that provides an appropriate recognition of the Canadian Charter, the many treaties that have been signed, and other statutes and policies of the government of Canada, and we continue to work with our aboriginal partners to try to achieve such a text." It was an admirable and diplomatic statement of the conundrum that the declaration still poses.
As for Chief Justice Beverley McLachlin, quite apart from her recent tossing of the phrase "cultural genocide" into the maelstrom, she has done a great deal to advance aboriginal law. In particular, she has led in giving substance to the idea that the federal power over "Indians, and lands reserved to Indians" in the original constitution, the 1867 British North America Act, expresses not only a power to enact laws, but also a responsibility of the executive branch of the Canadian government that "engages the honour of the Crown."
It's an idea that appeals to many, if not most, aboriginal Canadians. It is rooted in King George III's Royal Proclamation of 1763, which was an attempt to restrain European settlement west of the Appalachians.
If the United Nations Declaration of the Rights of Indigenous Peoples were a treaty legally binding on Canada and Canadian provinces, it would introduce one more level of legal analysis and uncertainty into an already profoundly uncertain area. And the delicate balancing of constitutional interests attempted by Chief Justice McLachlin and her colleagues could be thrown off.
Aspirations can be a good thing. They can articulate ideals. And documents such as UNDRIP do have their place in the mix. If taken literally, however, they can do real harm, leaving little but bitter disappointment – which may only make a damaged relationship even worse.