Canada endorses ‘aspirational’ UN Declaration

Gale Courey Toensing, Today staff
11/25/10

OTTAWA – Canada endorsed the U.N. Declaration on the Rights of Indigenous Peoples Nov. 12, calling it “an aspirational document” that provides an opportunity for the government to “continue working in partnership with aboriginal peoples in creating a better Canada.”

Reversing its vote against adopting the Declaration at the U.N. General Assembly in New York Sept. 13, 2007, Canada said it “reaffirms its commitment to promoting and protecting the rights of indigenous peoples at home and abroad.”

That commitment is not unrestricted, however. Indian and Northern Affairs Canada, which issued the announcement, also said the Declaration will not take priority over the country’s laws or treaties with First Nations.

“The Declaration is an aspirational document which speaks to the individual and collective rights of indigenous peoples, taking into account their specific cultural, social and economic circumstances,” according to INAC. But, “the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws.”

Assembly of First Nations Chief Shawn A?in?chut Atleo welcomed the endorsement as a positive step forward.

“Today marks an important shift in our relationship and now the real work begins,” said Atleo, a hereditary chief from Ahousaht First Nation.

“Now is our time to work together towards a new era of fairness and justice for First Nations and a stronger Canada for all Canadians, guided by the Declaration’s core principles of respect, partnership and reconciliation. First Nations have worked long and hard to set out constructive and effective approaches and to abandon the colonial relationship embodied in the Indian Act that has held back our people and this country. We are ready to move now – today – on our key priorities including education.”

In a teleconference, Atleo said he had planned to attend the National Congress of American Indians annual conference Nov. 15 – 19, but stayed in country to address the issues surrounding the endorsement. He expressed admiration for President Barack Obama’s initiative in holding a summit with Indian leaders last November.

“I think that was a demonstration of real political leadership. I noted that NCAI President Jefferson Keel said that the meeting resulted in a really positive shift in the relationship of tribal leaders and the American administration. We’re suggesting that Prime Minister Stephen Harper do similarly what Obama did and meet directly with the tribal nations from across Canada and that that happens very soon so we can chart a way jointly to build on the endorsement of the Declaration,” Atleo said.

He also seeks a closer relationship with Indian leaders in the U.S.

“There is a need in my view for tribal leaders in the U.S. and First Nations in Canada to work very closely together.”

The following day, Atleo launched a blog to engage “First Nation citizens, communities and all Canadians in thoughtful conversation, discussion and debate on improving the lives of First Nations.”

While the endorsement was widely seen as positive, some indigenous citizens both in Canada and the U.S. expressed skepticism about the government’s timing and intent.

“The Declaration is not perfect, but it’s still very good,” said Kenneth Deer, a Mohawk resident of Kahnawake, journalist and consultant who worked for years on the Declaration at the U.N. Permanent Forum on Indigenous Issues.

But he took issue with Canada’s assertion that the Declaration has to be “consistent” with Canadian law.

“The issue we have is what if Canadian law is racist and discriminatory? Does that mean Canadian law will still take precedence?” Deer said.

Although it may be technically true that the Declaration, as Canada said, is “non binding,” many of its articles concerning human rights – such as the right to self-determination – appear in other instruments of international law that are binding and to which Canada is a signatory, Deer noted.

“It was clear that Canada would put that kind of provision in its announcement. But nevertheless, we’re still very happy with the endorsement because even though they’re calling it an aspirational document, it still puts moral pressure on the government to live up to the ideals of the Declaration and it’s a tool for indigenous peoples to use for themselves to help define what their own rights are,” he said.

The government’s decision to endorse the Declaration at this time may be an attempt at face-saving. Last month, Canada for the first time ever lost an election for a seat on the U.N. Security Council.

“That was very embarrassing for the Canadian government. Canada used to have the reputation of being fair-minded and other states could depend on it, but now it’s too married to America and Israel. Canada was supportive of the Declaration and encouraged other governments to support it until the Conservative government came in and voted against it on ideological grounds,” Deer said.

Harper, a Conservative, won a minority government in 2006 and a larger minority government in 2008.

“As indigenous peoples it’s up to us to hold Canada’s feet to the fire on this Declaration. I’m cautiously optimistic. I’m not doing cartwheels, but we have to use it in the most positive way to advance the rights of indigenous peoples,” Deer said.

Peter Vicaire, a fellow at the University of Michigan Indigenous Law Center, had a different take.

In an article posted on the Turtle Talk blog, Vicaire wrote, “Wow. Big news out of Canada. Or is it? Call me a skeptic, call me a cynic, but something just doesn’t feel right with Prime Minister Harper’s perfect 180-degree half-pirouette on this issue.”

Perhaps most telling, Vicaire notes, is “Of the 16 paragraphs contained in it, 13 contain material which boasts of Canada’s alleged, already existing actions, progress, progressive policies, and honorable commitment to the aboriginal people within the borders of Canada. Thus, it seems, Canada’s endorsement of the U.N. Declaration of the Rights of Indigenous Peoples is rather, an endorsement of the way things are in Canada, not the way things should be.”

By Gale Courey Toensing
Today staff

OTTAWA – Canada endorsed the U.N. Declaration on the Rights of Indigenous Peoples Nov. 12, calling it “an aspirational document” that provides an opportunity for the government to “continue working in partnership with aboriginal peoples in creating a better Canada.”

Reversing its vote against adopting the Declaration at the U.N. General Assembly in New York Sept. 13, 2007, Canada said it “reaffirms its commitment to promoting and protecting the rights of indigenous peoples at home and abroad.”

That commitment is not unrestricted, however. Indian and Northern Affairs Canada, which issued the announcement, also said the Declaration will not take priority over the country’s laws or treaties with First Nations.

“The Declaration is an aspirational document which speaks to the individual and collective rights of indigenous peoples, taking into account their specific cultural, social and economic circumstances,” according to INAC. But, “the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws.”

Assembly of First Nations Chief Shawn A?in?chut Atleo welcomed the endorsement as a positive step forward.

“Today marks an important shift in our relationship and now the real work begins,” said Atleo, a hereditary chief from Ahousaht First Nation.

“Now is our time to work together towards a new era of fairness and justice for First Nations and a stronger Canada for all Canadians, guided by the Declaration’s core principles of respect, partnership and reconciliation. First Nations have worked long and hard to set out constructive and effective approaches and to abandon the colonial relationship embodied in the Indian Act that has held back our people and this country. We are ready to move now – today – on our key priorities including education.”

In a teleconference, Atleo said he had planned to attend the National Congress of American Indians annual conference Nov. 15 – 19, but stayed in country to address the issues surrounding the endorsement. He expressed admiration for President Barack Obama’s initiative in holding a summit with Indian leaders last November.

“I think that was a demonstration of real political leadership. I noted that NCAI President Jefferson Keel said that the meeting resulted in a really positive shift in the relationship of tribal leaders and the American administration. We’re suggesting that Prime Minister Stephen Harper do similarly what Obama did and meet directly with the tribal nations from across Canada and that that happens very soon so we can chart a way jointly to build on the endorsement of the Declaration,” Atleo said.

He also seeks a closer relationship with Indian leaders in the U.S.

“There is a need in my view for tribal leaders in the U.S. and First Nations in Canada to work very closely together.”

The following day, Atleo launched a blog to engage “First Nation citizens, communities and all Canadians in thoughtful conversation, discussion and debate on improving the lives of First Nations.”

While the endorsement was widely seen as positive, some indigenous citizens both in Canada and the U.S. expressed skepticism about the government’s timing and intent.

“The Declaration is not perfect, but it’s still very good,” said Kenneth Deer, a Mohawk resident of Kahnawake, journalist and consultant who worked for years on the Declaration at the U.N. Permanent Forum on Indigenous Issues.

But he took issue with Canada’s assertion that the Declaration has to be “consistent” with Canadian law.

“The issue we have is what if Canadian law is racist and discriminatory? Does that mean Canadian law will still take precedence?” Deer said.

Although it may be technically true that the Declaration, as Canada said, is “non binding,” many of its articles concerning human rights – such as the right to self-determination – appear in other instruments of international law that are binding and to which Canada is a signatory, Deer noted.

“It was clear that Canada would put that kind of provision in its announcement. But nevertheless, we’re still very happy with the endorsement because even though they’re calling it an aspirational document, it still puts moral pressure on the government to live up to the ideals of the Declaration and it’s a tool for indigenous peoples to use for themselves to help define what their own rights are,” he said.

The government’s decision to endorse the Declaration at this time may be an attempt at face-saving. Last month, Canada for the first time ever lost an election for a seat on the U.N. Security Council.

“That was very embarrassing for the Canadian government. Canada used to have the reputation of being fair-minded and other states could depend on it, but now it’s too married to America and Israel. Canada was supportive of the Declaration and encouraged other governments to support it until the Conservative government came in and voted against it on ideological grounds,” Deer said.

Harper, a Conservative, won a minority government in 2006 and a larger minority government in 2008.

“As indigenous peoples it’s up to us to hold Canada’s feet to the fire on this Declaration. I’m cautiously optimistic. I’m not doing cartwheels, but we have to use it in the most positive way to advance the rights of indigenous peoples,” Deer said.

Peter Vicaire, a fellow at the University of Michigan Indigenous Law Center, had a different take.

In an article posted on the Turtle Talk blog, Vicaire wrote, “Wow. Big news out of Canada. Or is it? Call me a skeptic, call me a cynic, but something just doesn’t feel right with Prime Minister Harper’s perfect 180-degree half-pirouette on this issue.”

Perhaps most telling, Vicaire notes, is “Of the 16 paragraphs contained in it, 13 contain material which boasts of Canada’s alleged, already existing actions, progress, progressive policies, and honorable commitment to the aboriginal people within the borders of Canada. Thus, it seems, Canada’s endorsement of the U.N. Declaration of the Rights of Indigenous Peoples is rather, an endorsement of the way things are in Canada, not the way things should be.”

Gonnella Frichner: Canada’s Declarationendorsement is ‘a positive step’

Tonya Gonnella Frichner is a citizen of the Onondaga Nation, Snipe Clan, and North America’s Regional Representative to the United Nations Permanent Forum on Indigenous Issues; she is also the president and founder of the American Indian Law Alliance in New York, as well as a lawyer and activist, who has devoted her life to the advancement of human rights for indigenous peoples. She was a vital part of the process of developing and negotiating the U.N. Declaration of the Rights of Indigenous Peoples, Her term as representative to the forum expires in January.

Indian Country Today: What is your response to the news that Canada has endorsed the Declaration?
Tonya Gonnella Frichner: I think it’s a positive step. Assembly of First Nations Chief Shawn A?in?chut said it’s a move forward towards a real partnership, but that real partnership has to be one of equals and it must be a new approach, a new agenda.

ICT: The endorsement’s language is pretty restrictive – the Declaration is ‘an aspirational document;’ it’s ‘non-legally binding,’ and has to be ‘consistent’ with Canadian laws.
TGF: Yes, it continues to reflect this colonial approach, but that’s not positive for us. What we have is a document that took almost 30 years of concentrated effort and sacrifice by indigenous peoples, many of whom are no longer here, and the point was to lift us out of these experiences of racism and discrimination in domestic situations and bring us up to a level where we have the right to expect our human rights to be acknowledged. Being ‘consistent with Canadian law’ is problematic because what Canadian law is based on in some respects – not all, but some – is the Doctrine of Discovery of conquest and power over indigenous peoples.

ICT: What aspects of the Declaration might the Canadian government see as not being ‘consistent’ with Canadian law?
TGF: The Declaration is a human rights instrument that recognizes individual, collective and group rights of indigenous peoples, including the right of self-determination and the right for us to give or withhold our prior free and informed consent when it comes to the exploitation of our lands and territories and resourced. We want Canada to implement the Declaration in a manner that is consistent with international standards of human rights.

But if you look back at the statements they made at the vote in the General Assembly in 2007, it’s pretty consistent with what they said now: They’re not going to support the Declaration unless it’s consistent with their domestic law and they quoted very clear sections of the Declaration that they could not support. So we have a movement forward with the endorsement, but we have it under qualifications.

ICT: How do you think the Canadian endorsement will influence the U.S.’s, if at all?
TGF: The U.S. has held a number of hearings in reference to the Declaration on Indian territories, in Indian country as well as in Washington and that was greatly appreciated, and so many of the Indian nations’ leaders and non-governmental organizations submitted their positions and I’m pretty sure the positions supported the implementation of the Declaration consistent with international standards of human rights.

But if we look back at the U.S.’s public position, when the U.S. Representative to the U.N. Susan Rice said in May 2010 that the U.S. would review its position on the Declaration, she also said that it would be consistent with U.S. law. We have presented some very solid legal arguments that I think will weigh their position – arguments about what is good not only for Indian country, but for the U.S., because we want to do this in partnership.

ICT: So, hopefully, the U.S. will endorse without conditions?
TGF: Governments can always change their positions, but the positive thing is that we have an endorsement from Canada and now we only have one developed country on the record against the Declaration and I think the potential is for the indigenous peoples’ position to overcome the U.S. position.

What I’ve seen in the last three years is the strength of the grassroots community moving the Declaration to the forefront and insisting that the federal government and administration look at it and rethink it and insist on the endorsement of the Declaration without qualification. It hasn’t been top down; it’s been bottom up, and I’m sure that will continue. The people want this. Along the way, we’ve captured the support of faith communities, non-indigenous human rights communities, states such as Maine, and cities and committees saying we’re going to do this.

ICT: What will your work be when you complete your term as U.S. representative to the U.N. Permanent Forum on Indigenous Issues?
TGF: I’ll continue to encourage communities to bring this issue forward and talk about breathing life into the Declaration on a community, grassroots level. The more we use the Declaration, the more it becomes ours and the more it becomes a human rights instrument that we can say is common law. But we have to use it – encourage scholars and writers and lawyers to refer to this document in everything they write and say so it becomes part of the public discourse, so when you refer to indigenous peoples, everything that comes out of your mouth says ‘as stated in the Declaration on the Rights of Indigenous Peoples.’

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