Luke warm endorsement receives tepid response

On the morning of Nov. 12, National Chief Shawn Atleo was tending to the business of First Nations in Canada when he received a phone call from the Minister of Indian Affairs John Duncan who had good news to share.

Canada’s Ambassador to the United Nations was meeting that day with the president of the United Nations General Assembly, Joseph Deiss, to advise him that Canada’s government had decided to officially endorse the United Nations Declaration on the Rights of Indigenous Peoples.
This was very good news indeed for the national chief of the Assembly of First Nations, after a three-year struggle to get Canada’s mind around the document. Canada had been firmly against the declaration, and had voted against ratifying it on Sept. 13, 2007, becoming one of only four countries around the globe to do so at that time.

Kenneth Deer, former publisher of the Eastern Door, said Canada’s objections leading up to the ratification vote were “outrageous.” Canada stated the declaration would violate Canada’s Constitution, and jeopardize 500 treaties that had been signed over the course of 250 years. Canada had called the document “very radical.”

So “Canada’s flip flop on its position on the U.N. Declaration on the Rights of Indigenous Peoples must be embarrassing,” wrote Deer in an American paper on Nov. 23.

Atleo cancelled his trip to the 67th annual convention of the National Congress of American Indian to deal with this happy situation.

What was soon learned, however, was that Canada’s endorsement of the declaration was a qualified one. In its statement of support, Canada said that it did not consider the declaration to be a legally binding one, in that it did not reflect customary international law ‘nor change Canadian laws.’

Instead, the endorsement gave Canada ‘the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.” Or what many have described as the opportunity to continue the status quo.

It should not have come as any great surprise as Canada had hinted at this attitude in March of this year when it indicated in the Speech from the Throne that it would endorse the declaration.

Canada referred then to the declaration as being an “aspirational document”, and that sentiment was reiterated on Nov. 12.

The Assembly of First Nations had pushed hard to get Canada to sign on to the declaration, said Atleo in a phone interview with Aboriginal media on Nov. 15. He congratulated the government for taking an important step “towards the promotion and protection of human and fundamental freedoms for all.” But the AFN did take exception to the statement that the declaration did not reflect customary international law.

Said Atleo, it was all a part of government spin to minimize the importance of the declaration. Reporters were curious if minimizing the importance of the declaration was the best start to what Atleo said the endorsement could mean; a real shift in how Indigenous peoples within Canada are treated.

The Assembly of First Nations of Quebec and Labrador described Canada’s endorsement of the declaration as “a gesture” of recognition.

“We sincerely hope that the federal and provincial governments will comply with the articles of the United Nations Declaration of the Rights of Indigenous Peoples. They lay the foundations for a new respectful relationship with our nations,” said Chief Ghislain Picard.

After Canada’s announcement, the chattering classes on the Web were filled with skeptical musings.

On Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law, one person wrote: “call me a cynic, but something just doesn’t feel right with Prime Minister Harper’s perfect 180 degree half-pirouette on this issue.

Maybe it’s because the endorsement is so riddled with ‘escape hatches.’”

In a joint statement from such groups as Amnesty International Canada, the Canadian Arab Federation, the Canadian Council on Social Development, the First Peoples Human Rights Coalition and about 30 others, the organizations urged Canada to “move ahead with the implementation of [the declarations’] provisions in a principled manner that fully respects their spirit and intent.”

They insisted that the declaration was more than an aspirational instrument.

“Governments, courts and other domestic and international institutions are increasingly relying on the declaration to interpret Indigenous peoples’ human rights and related state obligations.”

They said that the standards are legally binding because they are part of general and customary international law so it was inaccurate for Canada to claim that the declaration “does not reflect customary international law”.

“This is a ‘manifestly untenable position,’ as concluded by the UN Special Rapporteur on the rights of Indigenous peoples,” they wrote.

“The purpose of instruments like the declaration is to encourage governments to change policies and laws that are discriminatory or that fail to uphold and fulfill the human rights protections guaranteed to all,” said Alex Neve, Secretary General of Amnesty International Canada. “Canadian laws and policies are not above reproach. We strongly encourage the government of Canada to use the declaration as a tool in reforming laws and policies that fall below international human rights standards.”

The Assembly of First Nations considers the declaration as a minimum standard, Atleo told the media. Governments can’t diminish Indigenous rights, he said.
By endorsing the document, Canada has put itself in a position where it must report back to the UN on the progress it makes to implement those principles and standards laid out in the document.

Atleo called for real change now, though he said no one was under the illusion that Canada’s endorsement of the declaration is a signal of major changes to come in its relationship with First Nations.

But, it does move the discussion along.

Atleo said that it’s all about how implementation of the declaration is approached. It’s critical that implementation be a joint effort. He said Canada has made noises that indicates the government is open to establishing a working group on implementation.