Scott’s Simon recent blogpost on Canada and the U.N. Declaration on the Rights of Indigenous Persons got a central message right: the importance of Canada playing a strong role abroad in promoting indigenous rights and indigenous issues. And he’s right on two more points: in suggesting that the role is there for Canada to play, and that the common goal of social justice benefits everyone in the global community as a result.
But the weak point of the argument is using the U.N. Declaration on the Rights of Indigenous Persons as a foundation document. Indeed, the decision of the Canadian government in 2010 belatedly to endorse the declaration makes little sense. The motives, of course, are rooted in a general rapprochement on indigenous issues between the Conservative government and Canadian indigenous organizations, especially as elections approached. So it endorsed the declaration, but in a message that reiterated all of its objections of 2007. The more immediate cause was the decision taken by both Australia and New Zealand to endorse the declaration (for domestic reasons), and the process initiated by the Obama Administration to reverse a decision taken under the Bush regime (for domestic reasons, too). These moves would have left Canada isolated as the Declaration’s last hold-out opponent. And so the Government, which wants to be known as standing for principle in foreign policy, seems to have tossed principle overboard in its haste to make the best of a changing situation.
The negotiation of the UNDRIP had an unfortunate history, and it resulted in a poorly-drafted document hitting the United Nations General Assembly at a time when most delegations simply wanted the issue off the table. The large majority in favour of the declaration in 2007 did not reflect international consensus (although, as years go by, that will be its most powerful argument). It reflected three major factors: that most countries saw the issue as irrelevant to their own interests; that the declaration itself was high on principle but low on practical application; and that some of the countries with large populations of indigenous peoples had no intention of meeting its terms or engaging in follow-up on such issues as land or consultations. Sad but true. And in a non-binding declaration (which countries do not ‘sign’), there is no obligation.
In the Canadian case in 2007, the Canadian government’s objections were grounded in the deficiencies of the Declaration itself. One has only to take a cursory look at its article 26.1., which reads as follows: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or occupied.” Can the Canadian government accept that? The Government of 2007 didn’t think so, nor does it now. Nor do I think this kind of language is any more acceptable to other governments. There are many other drafting points to which Canada and others took exception.
True, as Professor Simon points out, the Declaration has fine language that Canada and others can willingly support on a number of other points. Indeed, most of a very long Declaration provides useful material for future action. Some people have argued that the Declaration is “aspirational” and should be supported because we support its intentions and general aims. Nonsense. Words in an international declaration mean something. And if they didn’t mean something, why were some delegations so opposed to amendments in 2007 that might have made it more acceptable to everyone? This is why the Canadian government’s 2010 endorsement of a Declaration about which it still has strong reservations is more than passing strange—even stranger than the fact that its endorsement message reiterated all of its objections from 2007.
As I sat at the Canadian desk in the U. N. General Assembly hall in September, 2007, I thought that the negative vote on the Declaration could well have been justified on two separate grounds: the flawed text itself, and the shoddy way in which the Declaration made its way to adoption, both in the previous few years and in the prior four months. It was not the finest hour in terms of building consensus in a respected multilateral organization. The right Canadian vote on the Declaration was probably an abstention rather than a ‘no’: that would have reflected both the many good principles within the document and also its several unacceptable elements. But a relatively new government considered that an abstention meant sitting on one’s hands, or avoiding a commitment. So the final decision was clear. And the fact that all four negative votes that September day came from four countries which take indigenous issues seriously, and which have long track records of international cooperation on indigenous issues, should have said something. These realities haven’t changed, although the international community is clearly trying to kiss and make up on a divisive issue.
And all of this points to one additional reality when discussing the Declaration: the new, more nuanced positions of Canada, Australia, New Zealand and the United States will make some international discussions on indigenous issues easier, but it won’t make the Declaration a better document now than it was four years ago. The real problems on indigenous issues have always been in other countries, which find those conundrums so difficult that they chose to hide in 2007 behind a vote in favour. The road ahead is therefore tough, and possibly the way the Declaration was adopted gives only one small clue as to how slow and problematic it can really be. Canadian leadership in this area can be helpful, and it should be pursued. But as we look at the road ahead, let’s not try to read into the Declaration more international consensus than there really is.