Commentary

Toward Realizing the UN Declaration on the Rights of Indigenous Peoples

The Declaration outlines best practices that nation-states ought to implement, enshrines the right of Indigenous peoples to be different, and affirms minimum standards for the survival, dignity, security and well-being of Indigenous people world-wide.

By Jonathan Lambert
Published September 02, 2015

"The 13th of September 2007," declared Victoria Tauli-Corpuz, Chair of the United Nations Permanent Forum on Indigenous Issues, "will be remembered as a day when the United Nations and its Member States, together with Indigenous Peoples, reconciled with past painful histories and decided to march into the future on the path of human rights." 1

Adopted by the General Assembly on this day after over two decades of work and negotiations, the UN Declaration on the Rights of Indigenous People has received widespread support in Canada and internationally. In 2007, an overwhelming majority of 144 UN Member States voted in favor of the adoption, even though four were against and eleven abstained. 2 "The Declaration," according to UN Secretary-General Ban Ki-moon, "is a visionary step towards addressing the human rights of Indigenous peoples." 3

Likewise, according to the International Indigenous Women's Forum, "The Declaration on the Rights of Indigenous Peoples will serve as a comprehensive international human rights instrument for Indigenous women, men and youth around the world... The adoption of the Declaration will allow Indigenous women and their families to infuse local human rights struggles with the power of international law and hold their governments accountable to international human rights standards." 4

As described by Phil Fontaine, former National Chief of Canada's Assembly of First Nations, the Declaration outlines best practices that nation-states ought to implement, enshrines the right of Indigenous peoples to be different, and affirms minimum standards for the survival, dignity, security and well-being of Indigenous people world-wide. 5

More recently, the Truth and Reconciliation Commission, with Justice Murray Sinclair, called upon federal, provincial, territorial, and municipal governments in Canada to fully adopt and implement the Declaration as the framework for reconciliation. 6

The Declaration may be applied in domestic courts as an instrument to guide the interpretation of legislation and constitutions. For instance, during the case of Cal and Coy v. Attorney General of Belize, the Supreme Court of Belize referred to the Declaration in maintaining the constitutional rights of the Maya people to territories and resources. Similarly, in Bolivia the Declaration was adopted at the national level in 2007, and then included in the new constitution in 2009. 7

Canada Voted Against Declaration

Canada, along with the United States, Australia and New Zealand, was one of the Member States that voted against the Declaration at the UN General Assembly in 2007. Although Canada maintained a leading role in the last years of negotiations, with the 2006 election of the minority Conservative government led by Prime Minister Stephen Harper, it opposed adoption of the Declaration. 8 Significantly, Canada was the only country on the 47-member Human Rights Council to vote against it. 9

But Canada's objections to adopting the Declaration failed. For example, during the General Assembly's adoption of the document, Indian Affairs Minister Chuck Strahl stated: "In Canada, you are balancing individual rights vs. collective rights, and [this] document... has none of that..." However, Strahl's claim is contradicted by the Declaration, which has over a dozen provisions that address individual rights. 10

Moreover, as argued by attorney Paul Joffe, when Canada voted against the Declaration in 2007, it did not engage in consultations with Indigenous peoples or make attempts to accommodate their concerns, even though Canada has a duty under Section 35 of its 1982 Constitution Act to consult and accommodate Indigenous peoples. 11

One of the most significant components of the Declaration is Article 3, which pertains to self-determination: "Indigenous peoples have a right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." 12

According to Kenneth Deer, Secretary of the Mohawk Nation at Kahnawake: "All our rights either flow from or are linked to our right to self-determination. These include our right to land, our right to natural resources, our right to our language and our culture, our right to our songs. We believe these are collective rights." 13

Residential Schools

The UN Declaration on the Rights of Indigenous Peoples is also pertinent to the residential schools that Indigenous children were forced to attend in Canada. "The Declaration," as described by Grand Chief Edward John, "provides many safeguards against repeat of the residential schools tragedy, including the affirmation that "Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture."" 14

With the completion of the 2008-2015 Truth and Reconciliation Commission, the residential school tragedy in Canada is seen as a case of cultural genocide. 15 Reflecting and reproducing the worsts of colonialism and violence, these residential schools, which became widespread throughout North America, are known to be modelled after the Mohawk Institute, which was located in the Hamilton area, in Brantford, Ontario.

Financed by a Protestant missionary society, this school opened in 1824 as the Mechanic's Institute, and three years later began taking boarders from the Six Nations Reserve. Under the control of an army officer, its harsh daily routines, rules and regulations were based on army training practices. 16

Geronimo Henry (Mohawk), who attended this school from 1942 to 1953, speaks about the conditions at the Mohawk Institute: "They tried to convert me in there. They took away my ceremonies, my rituals and my language. They tried to assimilate us." 17

The Mohawk Institute operated for nearly a century and a half, inflicting cruelty and abuse upon generations of Indigenous children. It closed in 1970, and presently the building is used by the Woodland Cultural Centre, an Indigenous non-profit charity devoted to Indigenous art, history and culture. 18

With the approach of September 13, the UN Declaration on the Rights of Indigenous Peoples can be revisited and remembered, along with the insights of Phil Fontaine: "The adoption of the Declaration by the United Nations was not an endpoint; it is the beginning. The work to see it fully implemented at home and internationally is now upon us." 19

Notes

1. Victoria Tauli-Corpuz, "Statement of Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous Issues, on the Occasion of the Adoption of the UN Declaration on the Rights of Indigenous Peoples" (Delivered 2007, Sept. 10): http://www.un.org/esa/socdev/unpfii/documents/Declarationipvtc.doc"www.un.org/esa/socdev/unpfii/documents/Declarationipvtc.doc

2. Grand Chief Edward John, "Survival, Dignity, and Well-Being: Implementing the Declaration in British Columbia" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 47.

3. Quoted in Jackie Hartley, Paul Joffe, and Jennifer Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 209.

4. Quoted in Jackie Hartley, Paul Joffe, and Jennifer Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 213.

5. Phil Fontaine, "A Living Instrument" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 9.

6. The Truth and Reconciliation Commission, Calls to Action, art. 43, (2015) pg. 4: http://www.trc.ca/websites/trcinstitution/File/2015/Findings/CallstoAction_English2.pdf

7. Jackie Hartley, Paul Joffe, and Jennifer Preston, "Hopes and Challenges on the Road Ahead" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 191.

8. Jackie Hartley, Paul Joffe, and Jennifer Preston, "From Development to Implementation: An Ongoing Journey" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 13.

9. Romeo Saganash and Paul Joffe, "The Significance of the UN Declaration to Treaty Nation:A James Bay Cree perspective" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 153.

10. Paul Joffe, "Canada's Opposition to the UN Declaration: Legitimate concerns or ideological bias?" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 76.

11. Ibid.

12. The United Nations Declaration on the Rights of Indigenous Peoples, art. 3, pg. 4: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

13. Kenneth Deer, "Reflections on the Development, Adoption, and Implementation of the UN Declaration on the Rights of Indigenous Peoples" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 27.

14. Grand Chief Edward John, "Survival, Dignity, and Well-Being: Implementing the Declaration in British Columbia" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 54.

15. CBC News, "Truth and Reconciliation Commission urges Canada to confront 'cultural genocide' of residential schools", CBC. (2015, June 2): http://www.cbc.ca/news/politics/truth-and-reconciliation-commission-urges-canada-to-confront-cultural-genocide-of-residential-schools-1.3096229

16. Larry Loyie, Residential Schools: With the Words and Images of Survivors. (Brantford: Indigenous Education Press, 2014) pg. 10-11.

17. Ibid, pg. 11.

18. Donovan Vincent, "Aboriginals Push to Save Former Ontario Residential School Known as 'Mush Hole'" thestar.com (2015, June 13): http://www.thestar.com/news/canada/2015/06/13/aboriginals-push-to-save-former-ontario-residential-school-known-as-mush-hole.html

19. Phil Fontaine, "A Living Instrument" in J. Hartley, P. Joffe & J. Preston, eds., Realizing the UN Declaration on the Rights of Indigenous Peoples (Saskatoon: Purich Publishing, 2010) pg. 9.

Jonathan Lambert is a returnee to Hamilton, Ontario. In between studies at the University of Toronto and stellar pick-up soccer, he enjoys taking in Monday night Hamilton Red Wing home games.

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By Joe Stirling (anonymous) | Posted January 23, 2016 at 22:10:43

Great overview, Jon. I hadn't heard about the "Mohawk" school. I have some reading to do with those links.

Thanks

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