WHY RIGHTS MATTER

by reconciliationproject

I have been gone for quite some time. In my absence the Supreme Court issued two major, and in my mind thoughtful, decisions in both the Tsilhqot’in and Grassy Narrows case. While I would love to delve further into these cases, I first wanted to issue a post on why rights discourse is important.

For some reason, I am often confronted by those who suggest my proclivity for rights-based arguments is unreasonable – that there are ‘many problems’ facing First Nations (and indigenous peoples more broadly), and that everyone’s efforts should be focused mainly on poverty alleviation as a first step, rather than ‘esoteric’ rights advocacy.

This post is about why rights matter. It’s a pretty incomplete argument.

I don’t think that anyone denies that indigenous peoples face a multitude of economic and social challenges – those that do can be confronted with volumes of statistics articulating the ‘gap’ between indigenous peoples and non-indigenous peoples in Canada. Even more shocking to me is the data gap itself – in many cases, there isn’t even data on social or economic conditions of aboriginal peoples to compare to the general population.

The government response to the identification of such gaps is often to stress the supposed truckloads of money expended on the welfare of aboriginal peoples.

Increasingly, advocates are challenging these representations by comparing funding for services for aboriginal persons, as opposed to amounts of funding provided to the general population. Perhaps not surprisingly, as there is a gap in outcome, so too there is a gap in funding for programs (particularly infrastructure, child and family services and education).

Working in aboriginal advocacy, one common refrain I hear from government is that although a tremendous gap exists, and although there may (no good government rep would acknowledge discriminatory treatment in funding) be some funding disparities, ‘we all know that money won’t solve everything’. I’ve even been told that ‘money won’t solve anything’.

I don’t necessarily disagree, I don’t think money solves everything. The government is in the business of printing it. If money solved everything and if government actually cared at all about indigenous peoples (which I think it does), then it could simply print more and more money to resolve those problems (setting aside minor issues regarding inflation and money supply, etc).

What’s the point of having money if you can’t spend it? Or alternatively, what’s the point of having money if you can only spend it they way someone else tells you to spend it?

That’s the real issue that rights advocacy addresses: control. While focusing on economic development is great, in absence of any sense of indigenous control of indigenous resources or economies, all of those gains are remarkably vulnerable to taxation (believe it or not), government regulation or government interference.

The issue isn’t only about inadequate resources, its about inadequate control. That’s not just in the present, but can be an ongoing concern. For example, if a particular business model results in prosperity for indigenous businesses, it is often the case that the government will intervene, quickly and harshly, to ‘regulate’ that ‘industry’.

To some extent, this is what occurred with the proliferation of casinos in the United States (in my mind, an already dubious economic proposition). In Canada, government efforts to regulate on-reserve cigarette production has moved beyond economic regulation and taxation to outright criminalization of the industry. I can only imagine how much those involved in the First Nations cigarette industry have an appreciation for rights discourse. They have witnessed the impact of government reaction to indigenous prosperity.

This government repealed a longstanding exemption of the Indian Act from scrutiny under the Canadian Human Rights Act. Want to guess what the first case heard by the Canadian Human Rights Tribunal involved? It didn’t have anything to do with gender discrimination, housing lists, access to services or even any operation of a First Nation government. It had to do with Economic Development.

The Beattie complaint (http://canlii.ca/t/2fgnd) involved a pretty unreasonable and inexplicable interference in the business affairs of a First Nations businessperson. The problem, so far as I could tell, is that because a proposed lease transaction was beyond the understanding of a government employee, the government refused to approve the transaction (as required under the Indian Act).

The Canadian Human Rights Tribunal, invoking the human rights of the complainant, required the Department to reconsider the lease and to substantially reform its policy for approving leases. In other words, if someone holds an on-reserve property interest (which is presumably worth something), they should be free to manage that interest how they want, particularly when it comes to entering into commercial transactions.

Its really not that different than being able to freely manage and dispose of one’s wealth in a way they choose. That’s not a matter of a ‘business case’ for recognition and implementation of rights: it’s more along the lines of there can be no ‘business case’ in absence of strong advocacy supporting recognition and implementation of rights. I suspect that those who are most successful in community-based businesses are likely the most likely to see this (though, to be fair, I’m not a business person)

Rights advocacy is important because it allows indigenous peoples a vehicle to seize control of our economic, environmental, social and cultural futures. Rather than focussing on creating incentives for other parties (business, government, NGOs) to support indigenous aspirations, rights advocacy is about shifting power to those who already have the strongest incentives to improve the lives of indigenous peoples – indigenous peoples themselves.