Hard-headed on the native file
----- Original Message -----
From: RUSSELL DIABO
Sent: Friday, September 29, 2006 7:19 AM
Subject: Hard-headed on the native file
Friday » September 29 » 2006
Hard-headed on the native file
Friday, September 29, 2006
The UN Declaration on the Rights of Indigenous Peoples, a draft charter that has been a quarter-century in the making by the slow-moving Working Group on Indigenous Populations, was finally adopted by the UN Human Rights Council (UNHRC) June 29 and will pass to the General Assembly next month. As John Ivison wrote in the National Post on Wednesday, the world has noticed that Canada, whose previous governments took a major role in drawing up the declaration, was one of just two UNHRC member states to vote against it. This is likely to give aboriginal groups a sizable caisson of rhetorical ammunition to use against the Conservatives, and it is Indian Affairs Minister Jim Prentice who will be the target.
The government has not yet fully articulated its reasons for opposing the declaration, but there is no great mystery in the matter. As a statement of lofty ideals, the declaration makes supporting governments such as those of the U.K. and France look good without costing them much: It's easy to make promises to your indigenous populations when they were exterminated or assimilated in antiquity. Here in the New World, on the other hand, we have difficult political balancing acts to perform. Before endorsing new rights, we must ensure that they can be put into practice without destroying old ones.
Proponents of the declaration claim that Canada should not be afraid of real-world impacts from a "non-binding" charter of moral principles. Students of actual Canadian law will laugh at that one. The Supreme Court has a long record of enforcing UN norms that haven't been formally ratified by Parliament. Indeed, the court is so keen on those norms that its Justices began citing the declaration in its draft from as early as 2001. Mr. Prentice and the Prime Minister know the score: Unless Canadian legislators actively oppose the UN's innocuous-sounding motherhood statements, they become the seeds of Canadian law.
We must consider, therefore, whether we can assent to everything in the declaration. Article 3, for instance, contains a broad statement that "indigenous peoples have the right of self-determination" and that "by virtue of that right they freely determine their political status." Aboriginal self-government already aspires, in some cases, nearly to the level of outright secession from the Canadian state. In the hands of more radical bands or associations, Article 3 could potentially have explosive effects on Canadian sovereignty.
Article 12 grants indigenous peoples an absolute right to repatriation of "their" human remains; we have seen how, in the United States, the adoption of such a principle has led to prolonged struggles over the possession of anthropological evidence before scientists have a chance to decide what racial grouping such remains might have belonged to. The recent eight-year battle over Kennewick Man is just one case in point.
And who can anticipate the ultimate effect of Article 33, "Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions"? Since the treaty status of thousands of "C-31 Indians" was restored by Parliament in 1985, the federal government has had a continual struggle to guarantee that aboriginal descendants once discriminated against enjoy the rights and benefits that come with membership in a band. Article 33 might have the effect of enfeebling or preventing those efforts, giving bands the power they once sought to exclude or deny privileges to "C-31 Indians."
If Stephen Harper and Mr. Prentice were less scrupulous politicians, they would follow the path of least resistance and put Canada's imprimatur on the declaration. Given how long it takes cases to wend their way up the Supreme Court, it will likely be years before today's native litigants are able to invoke any newly adopted UN document in support of their case. By that time, the current Conservative government will be out of power, and the problem will be someone else's.
But the Conservatives are fighting this as a matter of principle, not political convenience, and we applaud them for doing so. Resolving the competing political and moral claims of aboriginal collectives, aboriginal individuals and society-at-large is a complex undertaking that each nation must resolve according to its own circumstances. Grandiose statements of principles, such as that offered by the UN Declaration on the Rights of Indigenous Peoples, only complicate this project by substituting utopian rhetoric for practicable compromise. We are therefore pleased that the document will not bear this nation's signature.
© National Post 2006
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