This article appeared at The Hill Times : http://www.thehilltimes.ca/page/view/cosentino-12-6-2010
If Canada intends to work in partnership with indigenous peoples to ‘aspire’ in good faith to the rights in the UN declaration, then the endorsement can signal real change. But if it’s business as usual, then democracy falls short.
December 6, 2010 (Ottawa) —The federal government’s formal endorsement of the UN Declaration on the Rights of Indigenous Peoples on Nov. 12 came as a welcome surprise, even though seven months earlier, the government announced its intention to endorse it in the Speech from the Throne.
The road to this endorsement was not a smooth one. Four years earlier, Canada voted against the UN Declaration at the Human Rights Council. A few months later at the Social, Humanitarian and Cultural Affairs Committee of the UN General Assembly, Canada voted in favour of a procedural resolution to delay its adoption. Canada was only one of four states of 144 to vote against the declaration when it was adopted by the UN General Assembly on September 13, 2007.
This was indeed significant. Canada had never before voted against an international human rights instrument. In fact, with respect to the UN Declaration, Canada had played an important leadership role in conciliation and compromise, bridging gaps in positions between states and indigenous peoples in the working group. This reversal in position has not been benign. Canada’s reputation and credibility for international human rights leadership has been strained since then.
The government’s claim that the UN declaration did not apply to Canada because it had voted against it carries significant implications for what this meant for Canada’s participation and standing in the international cooperative human rights system if nation-states can cherry-pick which international human rights and instruments it chooses to respect.
The declaration is the outcome of more than two decades of multilateral negotiations between indigenous peoples, UN member-states, observers from UN organs and specialized agencies. It is distinct as the only international instrument in which indigenous peoples’ representatives played a key role in UN standard-setting processes. It contains both individual and collective rights and the minimum standards necessary to achieve well-being, dignity and survival of the world’s 370 million indigenous people.
It reflects established and accepted international human rights norms, including standards and rights that are already legally binding because they are part of customary law. However, Canada’s recent endorsement rejects this assertion in addition to calling it merely ‘aspirational.’ The UN Special Rapporteur on the rights of indigenous peoples says this is a “manifestly untenable position.”
Among the provisions which reflect customary international law include the international principles of pacta sunt servanda (“treaties must be kept”), the right to self-determination, and rights prohibiting racial discrimination.
In practical terms, the provisions of the declaration can influence international political priorities, programs, and outputs of various UN agencies, and the conferences, research and policies they create. In the domestic context, the declaration can shape public policy, programs, public opinion, and jurisprudence. Moreover, governments, courts, and other international and domestic institutions are relying on the declaration to interpret indigenous peoples’ human rights and related state obligations. The UN declaration, in short, is a yardstick against which to measure states’ behaviour.
However, Canada’s endorsement, while a positive development on the road to reconciliation in a post-apology era, sounded hollow. It is unclear how Canada could endorse any human rights instrument as long as its interpretation must be consistent with Canada’s current legal framework. While the UN declaration contains balancing provisions with the rights of others, and it is meant to strengthen domestic human rights protections, Canada’s legal framework also includes the Indian Act. As the Canadian Friends Service Committee, an NGO with a longstanding relationship with indigenous peoples at the international level noted, “it is incomprehensible to think Canada would endorse the declaration in accordance with how it relates to the Indian Act.”
For any government to say that an internationally-adopted human rights instrument has no legal effect and they can interpret it within the current legal framework could mean that the status quo prevails over good faith endorsement and true partnership. International human rights standards are essential in the promotion and protection of rights that states have failed to uphold. They are meant to assist the reform of laws, policies and guide state behaviour.
The government asserted in their endorsement that their relationship with indigenous peoples is “based on good faith, partnership and mutual respect.” However, if we are to assess the endorsement against both the substance and process of current legislation before Parliament, the sincerity of the endorsement remains speculative.
Take for example, Bill S-11, Safe Drinking Water for First Nations Act. This legislation provides for the legislative authority to unilaterally “abrogate or derogate” aboriginal and treaty rights “through future regulations.” While on the surface this bill responds to the lack of potable water, a serious problem in many First Nation communities, the substance and policy tools of this bill runs counter to the idea of partnership, mutual respect, and the rule of law.
The same is true of Conservative MP Kelly Block’s private member Bill C-575, First Nations Accountability Act. This bill was drafted without any consultation with First Nation people, their representative organizations or governments. This bill fails to meet even the most rudimentary tests of both international and domestic standards related to consultation and participation in decision-making in matters which affect them.
Many of the concerns the bill purports to address are already done in practice. Many, if not most, First Nations have accountability and transparency procedures in place and INAC and other government funders have rigorous accounting and reporting mechanisms in place. First Nation chiefs and councils have their financial statements audited, reviewed and approved both by accredited accountants and government officials. For those few First Nations where questions related to their accounting remain, should that not remain under the purview of the partners in question—between the government of Canada and the First Nation?
The principle of mutual accountability between the federal government and First Nations would achieve meaningful results on accountability. Institutional development such as the creation of an auditor general, ombudsperson, or commissioner for First Nations, could allow for real and effective transparency and accountability.
If Canada intends to work in partnership with indigenous peoples to “aspire” in good faith to the rights and standards in the declaration, then the endorsement can signal real change. However, if current practice prevails and indigenous peoples continue to be excluded from the decision-making process, then Canadian democracy falls short of the principles of transparency, accountability, representation and responsiveness that all Canadians aspire to. Now that Canada has formally endorsed the UN declaration, we have a barometre against which to measure Canada’s willingness to implement a renewed relationship and partnership with indigenous peoples in Canada.
Gina Cosentino is the president of Strategix Public Affairs Network. She was the senior adviser to former national chief of the Assembly of First Nations, Phil Fontaine. She also assisted the Global Indigenous Peoples Caucus in their lobbying efforts towards adoption of the UN Declaration of the Rights of Indigenous Peoples.
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