CANADA'S PROMISES QUALIFIED RECOGNITION OF UN DELCLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE

Canada promises ‘qualified recognition’ of UN Declaration


By Gale Courey Toensing




Canada has promised to endorse the United Nations Declaration on the Rights of Indigenous Peoples, but a Mohawk journalist and consultant cautions that there’s no reason to rejoice just yet.

Canada, the United States, New Zealand and Australia – countries with large indigenous populations who have significant land claims – were the only four countries to vote against the Declaration’s adoption at the U.N. General Assembly Sept. 13, 2007. Canada’s change of heart and decision to adopt the Declaration was announced during this year’s Speech from the Throne by Canada’s Governor General Michaelle Jean March 3.

“We are a country with an aboriginal heritage. A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”

Echoing Jean’s words in his response to the Speech from the Throne, Conservative Prime Minister Stephen Harper said the Canadian government “will take steps to endorse [the Declaration] in a manner fully consistent with Canada’s Constitution and laws.”

Kenneth Deer, a lifelong Mohawk resident of Kahnawake, said language like “qualified recognition,” “aspirational,” and “in a manner fully consistent with Canada’s Constitution and laws” raises red flags.

“We don’t know what it’s going to be yet. This paragraph that was in the Throne Speech only lets us know they intend to endorse the Declaration. They haven’t endorsed it yet, so we’re waiting to see how they want to qualify it.”

Deer served as the publisher and editor of The Eastern Door from 1992 – 2008, a newspaper and Web site serving the Mohawk community at Kahnewake. He sold the newspaper in 2008 and now owns and operates Deer Communications, a consulting firm for media and international relations, He is also on the board of trustees of the U.N. Voluntary Fund for Indigenous Populations.

“But I still think of myself as a journalist.”

In a recent opinion piece published in The Eastern Door, Deer points to “ominous signs” in the Throne Speech that may not bode well for Canada’s indigenous peoples.

“The term ‘qualified recognition’ means that the Canadian government is not intending to accept the Declaration as a whole and fully implement it, as was urged in a motion adopted by the House of Commons in April 2008.

“Instead, the government intends to put limits on how it will interpret this human rights instrument. The government seeks to endorse the Declaration, only to the extent that is fully consistent with Canada’s Constitution and laws. This would serve to perpetuate the status quo.”

Deer noted that the Canadian government unsuccessfully submitted a list of 30 amendments to the 46-article Declaration a month before the document was adopted that aimed to limit indigenous peoples’ collective rights, including the rights to land and territories, and free, prior and informed consent, among others. That action indicates the type of limitations the Canadian government is contemplating in its ‘qualified recognition.’

He also noted that the governor general’s comment that a “growing number of states” is giving “qualified recognition” to the Declaration is an exaggeration.

Only two countries have changed their position on the Declaration – Australia, which voted against it, and Colombia, which abstained.

“So to say a ‘growing number of states’ is misleading,” Deer said.

Australia supported the Declaration with only a slight qualification similar to Canada’s intent to endorse “to the extent consistent with Canadian law.”

“But that’s actually a redundant statement, because it’s the courts that will decide. The Declaration is still the international standard whether Canada votes for it or not, and as soon as courts start using the Declaration in their judgments, then it erodes Canada’s position because the courts have all the leeway to take into consideration international standards,” Deer said.

But can a country actually qualify its recognition of an international declaration that is already in place? Wouldn’t that be like saying, “We’re adopting the Universal Declaration of Human Rights, but we’re going to scratch Article 5 – the prohibition against torture?

“They can’t make amendments because (the Declaration) is already passed, but there were so many ridiculous changes that they wanted to make and Canada lost a lot of respect internationally because of their stand against the Declaration. It made it harder for Canada to be listened to on human rights issues by other countries. That’s the reason they’re going to endorse it. It isn’t because they love us so much, but because they’re trying to repair their international reputation.”

Deer also said the term “aspirational document” implies that the Declaration is a lofty goal that one tries to meet and is the highest limit of the rights in the Declaration.

“This is not true. It is true that, as a declaration, it is not binding like a convention. But what is also true is that the Declaration has legal effect. The rights that are elaborated in the Declaration are inherent or pre-existing rights. They are not new rights,” he said.

While the Assembly of First Nations and other large indigenous organizations will likely lobby Ottawa to endorse the Declaration with “honor” – meaning without limiting qualifications – Deer said his mission is different.

“The object of the article was really to educate indigenous people about the announcement and its implications, and although it’s a step in the right direction, we should be cautious. I’m not celebrating Canada’s decision to endorse the Declaration right now. I’m waiting to see the wording. I encourage Canada to be magnanimous about it and not qualify its endorsement.”

If the constitution and laws of a state conflict with international human right standards, then those laws must change, Deer said.

“Canada now has an opportunity to go from the back of the bus of human rights to the front by showing how the U.N. Declaration on the Rights of Indigenous Peoples can be applied in a positive and effective way.”



Indian Country Today- March 24, 2010