The Standing Committee on Human Rights at the Canadian Senate is conducting a study on human rights of First Nations “people” living off-reserve. http://www.parl.gc.ca/Content/SEN/Committee/411/ridr/press/14NOV12-e.htm
I haven’t been following these hearings, mainly because I’m hardly convinced the Standing Committee has a good grasp on the human rights of indigenous peoples. I’ll devote this post to articulating why I don’t have faith in these hearings, or alternatively, what I think the Senate should be asking in order to present a full and fair study of the human rights situation of off-reserve First Nations citizens.
This could be simply an artifact of the tone and tenor of political discourse in Ottawa. Dr. Pam Palmater, certainly thinks so, as articulated in her most recent post on Indigenous Nationhood, here: http://indigenousnationhood.blogspot.ca/2012/11/eyes-wide-shut-chasing-section-35-and.html. I think she makes a lot of very good points about general problems with aboriginal rights law and a very valid criticism of the limitations of ‘using’ s. 35 (or aboriginal rights arguments generally) as the sole basis to support recognition of inherent rights in Canada. It’s only one of many, each of which should (ideally) be mutually reinforcing. However, I digress.
Subjects of Study
A close examination of the subjects being studied by the Committee reveal a heavy focus on ‘individual’ human rights. The major exception to this *may* be the issue of ‘participation in band decision-making’. I say ‘may’ because this could be viewed in terms of the individuals rights to participation in governance of a collective or it could be viewed in terms of regulating the collective’s ability to self-govern. These two concepts are very closely related, but are actually quite distinct. One deals in the individuals right to participate in (presumably) democratic decision-making processes. The other deals in a collective’s human right to manage its own affairs.
Individual v Collective Rights
The distinction between individual rights and collective rights is very subtle and very difficult to understand. I often wonder how good a grasp on this I have myself. But the distinction is real and it is, in fact, the core issue which differentiate indigenous rights (or indigenous human rights, if you prefer to be more precise to this context) from more ‘general’ human rights law.
The law of human rights of particular groups is often defined by the historic and continuing challenges those groups face. This is why there are a set of human rights rules which deal specifically with gender issues, children’s issues or racial discrimination issues. To be precise, one should not apply a normative framework meant to deal with racial discrimination to a human rights situation involving not racial discrimination, but children issues. Each body of law has been articulated to deal with different situations.
So what is the ‘situation’ of indigenous peoples which ‘indigenous human rights law’ tries to address? If you think about it, why not deal with the human rights situation of First Nations citizens off-reserve as issues of racial discrimination? Racial discrimination is, in fact, often the driver of the human rights situations of off-reserve (and even many on reserve) First Nations citizens – but also often of Metis and Inuit citizens. Indeed, First Nations could, and have, accessed legal frameworks meant to provide redress for racial discrimination for any number of situations. This framework; however, does not capture many core issues which lie at the root of the human rights situation of many First Nations.
The ‘indigenous human rights law’ framework has been articulated to deal with the collective rights of indigenous peoples. In many ways, indigenous peoples are victims of international law itself – either through the Doctrine of Discovery (get in those EMRIP submissions http://wp.me/p1AYud-1Y) or the fiction of terra nullius (http://wp.me/p1AYud-1l). The status of indigenous peoples as equals to those in European states was both implicitly acknowledged and explicitly (and summarily) dismissed, from the 1400s to modern times. It continues every day.
If you accept that I am a free person, and that my ancestors were free peoples, then did they (we?) not have the right to form our own democratic institutions, to conduct our own foreign relations, to develop our own economies and cultures and to manage and hold our own lands? By denying those collective rights to indigenous peoples, states endorse the view that at some point along the way, the ancestors of today’s indigenous peoples were sub-human, as compared others.
Hardly the most eloquent argument, and indeed, not even a legal one. This is; however, the tension that ‘indigenous human rights law’ seeks to address. Denying the collective aspects of indigenous peoples rights, particularly but certainly not limited to territorial rights, results in the perpetuation of an invidious and unique form of discrimination which offends the dignity, the health, and the human rights situations of indigenous peoples, indigenous citizens and the whole of humanity itself.
It’s a mistake to exclude collective rights
I’m going to go out on a limb and suggest that the Senate is really not interested in collective rights. This is a major mistake. First, territorial rights are most commonly associated with collective rights – though they are not the only ones. Even so, most territorial rights issues relate to lands, territories and resources located off of the reserve. Enjoyment, or lack of enjoyment, of such rights is a major contributor to the overall human rights situation of indigenous peoples.
I’m tired and this isn’t a submission, but a blog — else I’d cite cases like Ominayak, CERD communications, etc, demonstrating that access to land rights is a highly relevant consideration when assessing the human rights situation of indigenous peoples.
I should also point out that there are a range of other collective rights (including the right to self-determination, which is so closely implicated to the Study’s emphasis on on-reserve governance and representivity) which are highly relevant to the Committee’s study and which merit fairly detailed study. They probably won’t be, though, given the narrow focus of the Study expressed in its media release.
Moreover, collective rights and individual rights are widely understood to be mutually reinforcing. This means that indigenous peoples cannot fully enjoy individual rights without full enjoyment of collective rights, and vice versa. This is one reason why many articles of the United Nations Declaration on the Rights of Indigenous Peoples are drafted to explicitly recognized both collective and individual modalities of the rights of indigenous peoples. To consider only collective (or individual) rights when studying the human rights situation of First Nations thus leaves a major gap, and suggests a misunderstanding of how human rights law intersects with indigenous peoples issues generally.
I believe the Study, as currently articulated, is deeply flawed. The Committee is taking what I refer to as a ‘minority rights approach’ in that it considers only the individual aspects of those rights (or individual rights – the difference between these two terms would make the subject of an interesting debate) to the exclusion of the collective rights.
I do comment the Standing Committee for tackling these issues. As I’ve noted above, many situations involving First Nations citizens are simply issues of racial discrimination (or discrimination against women, or both). Those issues are often underplayed by most of the aboriginal rights advocacy community precisely because they are not often viewed as collective rights (though I would argue strongly many of them have very strong collective dimensions – so strong they could be framed as collective issues).
However, the Senate Standing Committee on Human Rights is doing one of two things here. Either the Committee is ignorant of the importance and inter-relatedness of collective and individual rights or the Committee is intentionally attempting to frame its study to exclude consideration of collective rights.
Given Canada’s longstanding problems recognizing, articulating and enforcing collective rights, I would hope the Senate would have devoted some attention to this issue. I mean, Behn v. Moutlon Contracting is being argued in the next month (my post here: http://wp.me/p1AYud-n), so we still don’t know the relationship between individuals and collective rights and we still don’t even know to what extent self-government is inherent or delegated (my post here: http://wp.me/p1AYud-11). At the most recent Conference of the Parties to the Convention on Biological Diversity, Canada even objected to using the term “peoples” in association with the term “indigenous”, suggesting Canada may not even accept that First Nations can hold collective rights, despite several Supreme Court decisions which state precisely the opposite – suggesting a possible ‘implementation gap’.
In either case, I would recommend simply standing on the sidelines on this one. That is, unless and until the Standing Committee makes some kind of indication that it is prepared to hear about the collective rights of indigenous peoples.
Its a shame because the issues being studied are important. Even worse, this Study would have presented an opportunity to articulate the extent to which collective rights and individual rights contribute to the overall human rights situations faced by off-reserve First Nations citizens.