Tag Archives: UNDRIP

NatChief PB is Doing Very Good Great Things at the AFN

I watched the AFN Special Chiefs Assembly. This is what I saw

✎  Wayne K. Spear | December 7, 2017 • Current Events

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F YOU FOLLOWED THE Assembly of First Nations Special Chiefs Assembly this week, like I did, you heard two federal cabinet ministers (and omg one of them is Indigenous) say that Canada did some very no good very bad things in the past—but the Trudeau Liberal government is a new and different government altogether. And on account of this differentlyness very good great things are going to happen to us very soon because. WAIT shouted the chiefs WE HAVE SOME QUESTIONS ABOUT THAT but the Ministers had to leave the moment their speeches were over. Just like pretty much every Minister at an AFN gathering ever but different.

National Chief Perry Bellegarde said much the same things the government people did—almost as if his speaking notes were coordinated with those of Ministers Carolyn Bennett and Jody Wilson-Raybould, who omg is Indigenous just like the rest of us. NatCheef B-Garde enjoys one of the warmest Crown-Chief relationships of the AFN’s history, so it was no surprise when his leather went all buttery-soft and he said dreamily that we are “in the midst of a tremendous opportunity” and that federal money is about to rain down upon us from the sky, along with big bucketsful of inherent Indigenous rights, no strings attached. The dangers, said Ency BeauGardz, are acrimony and division. Also, totally unrelated, there’s a National Chief election next year. The takeaway is that we must re-elect NC PeeBee (don’t get all dividey now, Chiefs!) and then also PeeEMJayT, so the wonderful things we have been promised will happen. In their second terms, for sure. Because.

Who Wants an Eagle Staff, Yo!

No Indigenous person outside of Ottawa actually knows what the AFN has been up to over the past few years. There’s an UNDRIP which sounds like a plumbing issue (if you’re fortunate enough to have actual plumbing) but isn’t. Also the AFN wants to close The Gap, which is fine because no Indian shops there anyway. None of us can point to a single improvement in our lives and say “Thank-you, National Chief, for this wonderful [fill in the blank]” but most of us can point to something that really sucks, like undrinkable water and moldy schools, and say ruefully that nothing appears to be changing. Fortunately that is all going to change lickety-split, because there’s a new Prime Minister in town who loves us, and we know this because tears fall from his dreamy bedroom eyes when he apologizes. He cares so much that, for the first time in Canada’s history, a federal government has a plan for the Indigenous people that is going to be great for them. We are going to love it! And it’s going to be different from the past because in the past governments never came up with ideas to make the Indians better-off.

For some reason there are Indigenous people who don’t trust the government or the AFN. (No, really.) These people say silly things like “Well what’s the plan exactly?” And by people I mean, of course, dangerous radicals. One of these unhinged extremists, the AFN’s Anishinabe Elder, Elmer Courchene, suggested that the AFN Chiefs were guilty of collaboration, which he defined as traitorous cooperation with the enemy. Whoa there, cultural Marxist SJW Elder Courchene! Not only that, he accused the AFN of disrespecting elders, then brought up National Chief Bellegarde’s gifting of an eagle staff to Marc-Andre Blanchard, Canada’s representative to the United Nations. I mean, what has the world come to when a Chief gets grief simply for handing sacred Indigenous objects over to random white guys?

Then other radicals jumped in and all hell broke loose. Even the youth took shots at poor nc/pErRyB. Mark Hill, Co-Chair of the AFN’s Youth Council, accused the AFN executive of centralizing power and authority, and he reminded everyone that the AFN is a lobby group and not a government elected to negotiate on our behalf. “The nation-to-nation relationship is between our peoples and the Crown,” he shouted, while setting his hair on fire. (Not really. I made that part up to sound more radical.) NatchyCheef PeBellGeGard didn’t look very happy about any of this, but later on he reminded everyone that this is a pivotal moment for a legacy so we are moving forward with much work to do it’s the grassroots let me tell you the youth they are our future. This didn’t convince anyone, so he pulled an 11.8-billion-dollar bill out of his headdress and waved it around until it was time for everyone to go to the casino.

Will colonial domination survive UNDRIP?

This week Canada’s ministers of Justice and Indigenous Affairs, Carolyn Bennett and Jody Wilson-Raybould, addressed the United Nations Permanent Forum on Indigenous Issues. The occasion was their government’s decision to revoke its “permanent objector status” vis-à-vis the UN Declaration on the Rights of Indigenous Peoples, also known as UNDRIP.

The UN Declaration on the Rights of Indigenous Peoples goes back decades. The proposal to draft standards and principles confronting the injustices committed against the world’s indigenous peoples arose in 1982. At its September 2000 adoption, UNDRIP was opposed by four nations, among whom was Canada. (The others were Australia, New Zealand and the United States—all states with a colonial history.)

In 2010, the Harper Conservatives endorsed UNDRIP but qualified this meaningless gesture by asserting that the declaration was aspirational only, had no legal force, and was inconsistent with Canada’s constitution and Charter of Rights and Freedoms.

A mere 15 pages, UNDRIP’s 46 articles can be read in a sitting. Here’s an example of language which Canada found objectionable:

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

At the time UNDRIP was adopted, Mr. Harper was promoting the oil sands and crafting resource-industry-friendly omnibus bills. His aspiration for Canada was energy superpower. A lot of the former Prime Minister’s thought, time, and energy were committed to energy, and especially to getting Alberta’s bitumen out of the ground and pipelining it westward to markets in China.

For the decade he held office, indigenous resistance was Stephen Harper’s Nemesis. The last thing the Conservatives needed, or wanted, was a UN endorsement of indigenous rights to own, use, develop and control their lands, territories and resources.

Canada’s Supreme Court wasn’t helping Mr. Harper much, either. A handful of rulings established that, at least in principle, aboriginal people could possess aboriginal land title and that their free, prior, and informed consent (here the acronym is FPIC) must be sought by governments prior to land and resource development. Tsilhqot’in Nation v British Columbia went a step further. Not only was it possible to hold aboriginal title, but the Supreme Court ruled in 2014 that a specific group, the Xeni Gwet’in, indeed held it to a territory of 1,750 square kilometres.

So is colonialism dead?

No, and here’s why the old business of colonial domination will probably survive UNDRIP, the Supreme Court of Canada, and the Truth and Reconciliation Commission.

First of all, UNDRIP is not, as the previous government of Canada has asserted, legally binding. There’s no court that can compel the government, and there is no mechanism to impose sanctions should Canada breach any of the Declaration’s 46 “aspirational” articles. As for the Supreme Court decisions, FPIC is a duty to seek consent rather than to obtain it. Under the present regime, the only unqualified Aboriginal right is the right to say Yes.

The courts are clear on the point that indigenous people do not hold veto rights over land and resource development. Where a proposal is likely to infringe upon aboriginal rights, there must be government accommodation, but any assertion of a right must be balanced against its counter-assertions. If Canada must reconcile with Aboriginal people, the opposite has also and always been true. At 4% of the population, aboriginal people are a tiny minority, and no Canadian court is ever going to affirm the proposition that the will of a majority could be overwhelmed by what is after all marginal peoples.

What the courts have articulated is simply and merely the principle of balancing minority and majority rights. Tsilhqot’in looks breathtakingly liberationist (or dangerously activist, if such are your politics) only against the disgraceful backdrop of rights-balancing from 1867 to-present. As I like to point out in my public lectures, the Indian Residential School System was entirely about reconciliation: namely, reconciling yourself to being told by Ottawa what’s best for you, and having it imposed under threat of fine, imprisonment, or even starvation. Under this model, the minority rights could be balanced against the majority will by absorbing that minority into the political body of Canada. No more minority, no more problem.

And, really, what has changed? When Attawapiskat hit the news yet again, the knee-jerk reaction of newspaper columnists was to call for absorbing the Cree into Canada’s towns and cities, much as the agents of Indian Affairs had advocated assimilation a century earlier. (The paradox is that they pursued this end by establishing remote reserves like Attawapiskat.) What the majority never appear to endorse are measures and arrangements that might promote strong, independent, aboriginal nations.

But I digress.

This business of reconciling rights involves the Crown and aboriginal people. The Crown asserts rights and prerogatives consistent with the traditions of English common law, while the Constitution Act of 1982 (specifically section 35) recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada.”

Supreme Court Chief Justice, Beverley McLachlin, has written in the Tsilhqot’in decision that “the s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.”

As discussed, s. 35  of the Constitution Act, 1982  imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title. Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group. The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.

All fine and good, but it isn’t the pit of history’s bitter fruit. As recognized by UNDRIP and the Truth and Reconciliation Commission—and the Royal Commission on Aboriginal Peoples, for that matter—the crux of our problem is colonialism. Or, to put it another way, the reconciliation of English common law traditions and indigenous traditions.

Which are not reconcilable.

Colonialism can not be reconciled with decolonization. Canada’s assertion of Dominion from sea to sea to sea can not be reconciled with indigenous assertion of sovereignty, anywhere in Canada, and certainly not within a s.35 Constitution Act framework.

Either Canada gets to tell aboriginal people what’s good for them, and impose it from above (again, the only form of reconciliation ever even contemplated in Canada), or it doesn’t get to do that. Either Canada gets pipelines because the government wants pipelines, or a minority aboriginal population gets a veto. The Supreme Court, of course, would have no such thing. The vision they have put before us is of good-faith negotiations to balance majority and minority rights. And that’s probably as close to decolonization as we’re likely to get by the steam of a colonial institution, which is what the Supreme Court is.

Jody Wilson-Raybould is described as a “Kwakwaka’wakw Canadian politician.” I’ve met her and I’ve heard her speak about indigenous rights and self-determination. I know from personal experience that she can deliver a decent speech. At the UN this week, she said “let us make this the century of the world’s Indigenous peoples, one where Indigenous peoples, no matter where they live, deconstruct their colonial legacy and rebuild their communities.” Not a bad sentiment, that.

As a cabinet minister and Attorney General and a member of the Privy Council, Ms. Wilson-Raybould has sworn an oath to the Queen. Her sworn duty is to serve the Crown. That’s not just a principle or an abstraction or “aspirational.” It is backed by the full legal force of the state, and if she is derelict she can indeed be sanctioned by her government. And by her government, I don’t mean the Sovereign Kwakwaka’wakw Nation, which in any case is not recognized by Canada (just as the Tsilhqot’in Nation is not recognized) and has scant recourse should the good Minister of Justice happen to let them down.