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UNDRIP’s fundamental flaw

The UN Declaration on the Rights of Indigenous Peoples was created with intrinsic power structures intact — leaving the state with ultimate control. Can the original spirit of the declaration still be salvaged?

By: /
2 April, 2019
Illustration by Kanienkehá:ka artist Victoria Ransom
Hayden King
By: Hayden King
Gchi'mnissing Anishinaabe writer and educator

Do you believe — really believe — that all peoples are entitled to equal protection of international law now that you are so strong? Do you believe — really believe — that treaty pledges should be kept? Think these questions over and answer them to yourselves.
Deskaheh (Levi General), 1923, in Rochester, NY.

What to do about the Indians? This question in Canada is as old as this country. Since even before Confederation, colonists have been trying to figure out how to contain and/or reconcile with First Nation people, Metis and Inuit. Given mountains of evidence and corresponding prescriptions of decades of deliberation, there is an irony in the failure by successive Canadian governments and citizens to take any of it seriously.

The most notable example may be the 440 recommendations of the 1996 Royal Commission on Aboriginal Peoples. After more than 20 years, almost none of that groundbreaking, prescriptive work has been implemented (though we did get a National Aboriginal Day out of it).

Late last summer, The Globe and Mail reported that since 2015 very few of the Truth and Reconciliation Commission’s Calls to Action — emerging from another comprehensive study — have been accomplished.

Then there is the United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP).

Later this year, the declaration — what many consider the pinnacle of Indigenous rights activism in international politics — will turn 12. While it was indeed a significant accomplishment — and still is — the necessary implementation by states, and Canada in particular, follows the stubborn trend of neglecting progressive policy prescriptions regarding relationships with Indigenous people.

Eleven and a half years and the only real thing we can say about Canada’s progress is a remarkable ability to find excuses for its lack of implementation. Consider the conflict at the Unis’tot’en Healing Centre and Gitimt’en Camp, where the RCMP served an injunction supporting the construction of a pipeline on Aboriginal title lands amid the resistance of the Wet’suwet’en hereditary leaders. Where is the concept of free, prior and informed consent — so central to UNDRIP — in this case? It is lost in prime ministerial invocations of “the rule of law.”

How can this be explained? Answers lie in the evolution of the declaration itself, including the self-serving nature of the community of sovereign states to manipulate UNDRIP in their favour. In other words, the very process of creating UNDRIP was undertaken unfairly between “sovereign” states and Indigenous groups. Considering this power to manipulate is integral to the process of implementation, post-state strategies for Indigenous freedom are also required.

A genealogy of UNDRIP

While there is a long history of suppressing Indigenous resistance in Canada, it is likewise true of the inter-national diplomacy of Indigenous peoples among each other, with the land, and non-Indigenous political communities. As I have written in OpenCanada previously, Indigenous perspectives on the “global” and the practice of those inter-national politics have effectively been erased. But it is worth considering the history of the emergence of UNDRIP, not only to reveal the scope of Indigenous influence on the state-system, but also to gain insight into how UNDRIP may be implemented, if it ever truly is.

This history is linked to the trans-Atlantic Indigenous resistance campaign, which has lasted centuries. Upon the turn towards aggressive European encroachment in North America, there would be repeated protests and diplomatic overtures by Indigenous dignitaries, from the visit of four Mohawk “Kings” to London in 1710, to Anishinaabe leader Peter Jones’ campaign across Europe on behalf of Lake Huron Anishinaabeg in the 1830s, Cayuga Chief Deskaheh’s intervention in Geneva for a Haudenosaunee seat at the League of Nations in 1923, and on, and on.

“Perhaps the ILO sought to protect Indigenous peoples using the only political language they knew: the state.”

None made significant material impact on international law until 1957, when the international community finally revisited the rights of Indigenous peoples in a formal setting. Following the decolonization movement post-World War II, the International Labour Organization (ILO) considered the issue and eventually passed a convention called the ILO 107, Indigenous and Tribal Populations Convention. As the ILO put it, the convention was necessary because there were Indigenous “populations which are not yet integrated into the national community and whose social, economic or cultural situation hinders them from benefiting fully from the rights and advantages enjoyed by other elements of the population.”

Regrettably the ILO did not take Indigenous self-determination seriously and “integration” framed the answer to the so-called Indian question. Perhaps the ILO sought to protect Indigenous peoples using the only political language they knew: the state. By having Indigenous people assimilate into the dominant populations, the ILO compromised the core of Indigenous demands over those four centuries. As Sharon Venne wrote in the seminal Our Elders Understand Our Rights, “rather than providing a source of rights for Indigenous peoples seeking to retain their territorial, political, social, and cultural integrity, the instrument legitimizes the gradual extinction of Indigenous peoples.”

It would take more struggle by Indigenous activists at the United Nations before some semblance of success. In 1982, the UN extended an invitation to a Working Group on Indigenous Populations (UNWGIP) in the hope of creating a more appropriate legal tool. The UN declared success in 2007 with the adoption of UNDRIP, which earned the immediate support of 143 countries (Canada was initially not among them).

Attempting to reconcile previous poor efforts, the preamble of the declaration states “that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.”

It then goes on for 46 articles, espousing rights to define membership and identity, rights to have previous poor treatment redressed and the right to revitalize traditions and cultures. The declaration affirms Indigenous peoples’ rights to traditional lands; to participate in colonial governments that make decisions that affect them; to revitalize their own governance systems; to free, prior and informed consent; and of course, the right to self-determination.

Whose declaration?

There is an important qualification to the effectiveness of the UNDRIP campaign by Indigenous activists. Any agency Indigenous peoples possess in the international community of states is tempered by the reality that the exercise of this agency is ultimately “permitted” — or not — by the states in which they reside. Indeed, the campaign of Peter Jones was sanctioned because he was also a Methodist convert, preaching degrees of assimilation. Deskaheh’s was not because he was a more resistant traditional leader — Canada refused to let him back in the country upon his return. His last speech, referenced above, was delivered in exile.

Dene political philosopher Glen Coulthard warns of the dangers of this permission when struggling for domestic Aboriginal rights in Canada. Engaging with Canadian philosopher Charles Taylor’s politics of recognition — that as a culturally distinct but threatened minority in Canada Indigenous peoples require state “recognition” of legal rights — Coulthard is critical. He asserts these rights and concessions like self-government and land claims processes “may alter the intensity of some of the effects of colonial-capitalist exploitation and domination, [but] it does little to address their generative structures, in this case a racially stratified capitalist economy and the colonial state.”

For Coulthard, recognition politics leaves the fundamental structure of the relationship intact, and thus is still dangerous to Indigenous claims of self-determination, even more so because states have simply empowered themselves to regulate those claims via rights recognition (or not). Assuming that Taylor’s notion of recognition also applies to the international, starkly similar patterns are clear; in some ways it is even more applicable than “internal” recognition politics.

Charmaine Whiteface, spokesperson for the Sioux Nation Treaty Council at the UNWGIP and Working Group on the Draft Declaration, provides some insight into how the politics of recognition, and subsidiary reinforcement of the state, functioned throughout work on UNDRIP. Her account in 2013 of the 10 years of negotiations between submission of the original text to the Human Rights Council and the final version endorsed by the UN General Assembly is revealing.

During discussions, English-speaking states frequently objected to the draft declaration, re-writing over a dozen articles and even removing some. These changes were made despite boycotts and hunger strikes by Indigenous delegates at the United Nations. But the most damaging were changes made to the last article, Article 46. The original text stated, “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations,” while the revised Article 46(1) added “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

“There are useful and productive spaces opened by recognition. Nonetheless, this type of politics has also empowered states.”

The key addition here puts the state’s interests first and foremost. But the article goes even further, giving states a backdoor out of the declaration by excusing any of the content they disagree with as a threat to “territorial integrity or political unity,” however they choose to define it. While 46(2) encourages limitations on this power, in practice, it has meant states have tremendous interpretive leeway. For instance, upon endorsement of UNDRIP, Australia’s then-Prime Minister Kevin Rudd noted that the government’s concerns with the “free, prior and informed consent” elements of the declaration, primarily Article 20, would be “interpreted in accordance with Article 46.”

This clearly reflects the danger outlined by Coulthard. This is not to say there aren’t benefits of state (or international) recognition. Indeed, Indigenous resistance through the decades in Canada reveals that recognition can be manipulated strategically by degrees to produce material gains. I believe there are useful and productive spaces opened by recognition. Nonetheless, this type of politics has also empowered states, and Canada in particular, to champion interpretive rights in the case of UNDRIP.

Limits of the Canadian model

When Canada was ultimately shamed into recognizing the declaration in 2010, officials announced that they would “interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” So what does consistency mean?

In her work on UNDRIP implementation, Sheryl Lightfoot argues that Canada has sought to “domesticate Indigenous issues, maintain the status quo in terms of policy, law and institutional structures” by including “qualifications and exclusions, (which) wrote down the content of international Indigenous rights norms so that they were already in alignment with the legal and institutional status quo making further implementation efforts unnecessary.”

Lightfoot shows that in each of the other previously hesitant endorsers of UNDRIP, former English colonies Australia, New Zealand and the United States, all recognized the opportunity and echoed similar pre-emptive aversions aimed at bringing the declaration in line with already existing laws, meaning that no change was actually required. Even more recently, Canada in particular has made rhetorical contortions in its efforts at “qualification and exclusion.”

In July 2017, Canada published its “Principles respecting the Government of Canada’s relationship with Indigenous peoples.” These were 10 commitments for the new nation-to-nation relationship conceived by the current Liberal government. While they note a variety of tools and policy, the implementation of UNDRIP figures prominently. In the preambular section, the government writes:

The implementation of the United Nations Declaration on the Rights of Indigenous Peoples requires transformative change in the Government’s relationship with Indigenous peoples. The UN Declaration is a statement of the collective and individual rights that are necessary for the survival, dignity and well-being of Indigenous peoples around the world, and the Government must take an active role in enabling these rights to be exercised. The Government will fulfil its commitment to implementing the UN Declaration through the review of laws and policies, as well as other collaborative initiatives and actions. This approach aligns with the UN Declaration itself, which contemplates that it may be implemented by States through various measures.

The commitments here have been followed up with a cabinet committee to “decolonize” Canada’s laws and support for Romeo Saganash’s bill on implementing UNDRIP (at the time of writing, that bill is with the Senate and will soon become law). Yet, here too there are challenges. In the former case, the committee operates under the Canadian convention of cabinet secrecy, so we don’t actually know what they are working on or how UNDRIP is applied to their review of laws that may infringe on Indigenous rights. On the latter, while the legislation may be a powerful tool to demand accountability on progress towards implementing UNDRIP, it ultimately lacks strong enforcement mechanisms and relies on the government of the day’s interpretation of UNDRIP.

At the provincial level, there is widespread opposition to UNDRIP, except in the province of British Columbia, where environmental assessment legislation introduced in November includes securing free, prior and informed consent of First Nations prior to any development. A positive step to be sure, but the fine print allows the government to proceed with licensing projects even if consent can’t be obtained. That province is also, at the time of writing, considering unique UNDRIP implementation legislation. This would be a Canadian first though Ontario followed soon after, with legislation introduced by member of provincial parliament and Kingfisher First Nation band member, Sol Mamakwa.

But the commitments made above do not — and truthfully cannot — permit the kind of self-determination UNDRIP’s drafters originally envisioned, at least as long as exclusive conceptions of (non-Indigenous) political authority remain the terms of our collective relationship. So, as a consequence, and as has been custom, Canada continues to delay a robust interpretation of any mechanism that promotes free, prior and informed consent, self-determination generally, or Indigenous jurisdiction over Indigenous lands and resources specifically.

Sabotaging implementation

In many ways, the delay in implementation of UNDRIP is the latest test case for reconciliation in Canada. There is a certain threshold that Canadians — or at least their governments — are willing to permit for Indigenous rights, justice, and the restitution that a renewed relationship requires. Modest policy change, lofty rhetoric and legal contortions characterize Canada’s approach.

I think we can explain Canada’s resistance to a fulsome implementation of UNDRIP as the result of the nature of international politics privileging the state, and the state defending its own interests against the “threat” of Indigenous self-determination. This is a decidedly structural approach to the discussion given that the fundamental solutions to the impasse require a re-imagined and re-articulated domestic and global political community.

But this isn’t a cynical or hopeless perspective. Indigenous people, communities and nations continue to advocate, through state legal channels or not, for alternatives. They range from blockades and land reclamations to shared jurisdictions schemes, negotiation, courts, even academic and legal writing to influence movement on these stubborn politics. All reference UNDRIP as a powerful, discursive tool.

That work will continue until Canadians meaningfully confront the memory, legacy and implications of Deskeheh’s challenge and the supremacy of a decidedly exclusionary form of inter-national politics.

A note on the illustration: Victoria Ransom is an Kanienkehá:ka artist based in Akwesasne. She incorporates Haudenosaunee beadwork and pottery designs into her work to create work that represents traditional teachings. This illustration represents the resurgence of a respectful relationship between Indigenous Peoples and Canada.

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