Discussing Aboriginal Rights on International Human Rights Day

Happy Human Rights Day!Today marks 66 years since the United Nations General Assembly members adopted and proclaimed the much-vaunted Universal Declaration of Human Rights (UDHR), which, for a significant portion of the world’s population, made life safer, more peaceful, more comfortable and more hopeful.For Aboriginal people in Canada, it’s been more complicated. The UDHR, and the global human rights movement it bolstered, has doubtlessly helped advance the individual rights of many Aboriginal people. Mi’kmaw historian Daniel Paul gives partial credit to the global human rights movement for ending the residential school system.At other times human rights, or that is the universal nature of human rights as defined by the UN, have infringed on Aboriginal rights. Native Studies scholar Peter Kulchyski writes in his slim but provocative 2013 book, Aboriginal Rights Are Not Human Rights (ARP Books), that the notorious 1969 White Paper – a failed attempt by the Trudeau government to wipe out Indian status and its accompanying rights – was informed by liberal human rights doctrine. If we are all equal, the logic went, we should all be the same. No special rights for Indians.What’s the difference anyway?-Richard Wagamese, “West Arm Kootenay Lake,” from Runaway Dreams (Ronsdale Press)

The above lines from David Groulx’ haunting poem “Lines That Make Us Human” could be spoken to a lover or they could describe colonial history in Canada. Promises were made and broken, and incredible suffering ensued. But the Aboriginal receivers of those promises – made by Britain and Canada via proclamation and treaty to those who were here first – demanded they be upheld, with some success.They weren’t asking to be treated like everyone else, but rather that their uniqueness, their distinct cultures, history, customs, economics and politics be recognized and respected. That Canadian settlers stop trying to make Aboriginal people just like us. In short, they were demanding their inherent and legal Aboriginal rights.Aboriginal rights are the rights of the original occupants of this land. Kulchyski says these rights stem from “their having lived upon and used the land since when the world was new,” as one Dene Elder put it.They are rooted in Indigenous cultural practices, which have long been under attack by domineering settler cultures, turning Aboriginal peoples into minorities in their own homes. Therefore they protect groups rather than individuals, and those groups’ “ways of organizing time, space, and subjectivity,” as well as economic, political and resource distribution systems.These rights are recognized in international law, but Kulchyski says that after considerable pressure from Aboriginal leaders Canada went one better, protecting those rights in our Charter of Rights and Freedoms in 1982. It affirms treaty rights and bars the limiting of Aboriginal rights – preventing a repeat of the White Paper incident.  They include among other things the right to traditional hunting grounds and practices and the right to be consulted on land and water issues. As Kulchyski summarizes, we’re talking about “property rights and political rights, based on history, custom, tradition, and culture – the doctrine of prior occupancy.”Such rights have been hard won by dedicated activists employing nonviolent direct action: marches, blockades, occupations. But also the long, hard political organizing: gathering signatures, sitting down with politicians, speaking to Senate committees. And finally by simply enacting tradition, doing things the old way, the way they have always been done. Donald Marshall Jr. did just that when he caught eels in Pomquet Harbour, Nova Scotia in 1993. That act led to a Supreme Court of Canada confirmation of native rights to make a living hunting and fishing.These are powerful things. Kulchyski notes that Aboriginal communities have been asserting these rights for decades now. “For just over 100 years policies were developed at the whim of officials;” he writes, “after 1970 Aboriginal peoples became major players in policy development.”In 1996, the Supreme Court of Canada said that to be protected as an Aboriginal right, an activity must be based on “practice, custom or tradition integral to the distinctive culture.” The court specified that such rights are not those “defined on the basis of the philosophical precepts of the liberal enlightenment.”Conversely modern human rights, as defined in the UDHR and pulled from the global carnage of WWII, came about in part because minds were changing about “the lesser races” and starting to broaden the definition of humanity. In the wide wake of Nazism, the very anthropological concept of race was losing traction among the populace.The idea of employing different policies and rules for different groups of people was becoming less acceptable, in theory. Human rights were and are mainly used to protect the individual rather than a collective, community or culture. In Canada, which played a “central role in the drafting” of the UDHR according to Foreign Affairs, “Indian” children were still being forced into institutions to have their languages and cultures whitewashed away.As a recent story in Publishers Weekly notes, there has been a rise in Aboriginal writing, giving Canadians a chance to better understand the significance of Aboriginal stories. In CanLit, it is perhaps Richard Wagamese who best explains the complicated relationship between Aboriginal and human rights, in his poem, “Paul Lake Morning,” part of his Runaway Dreamscollection (Ronsdale Press). He writes that “you become Ojibway like the way you become a Human Being / measure by measure, step by step … on a trail blazed by the hand of grace / every awakening a reclaiming of the light you were born to.” There is a sameness to the process of becoming, but a uniqueness in Ojibway or Maliseet or Inuit culture.

Aboriginal rights are not a subset of human rights, although they have been treated as such. They are distinct things of equal importance; one based on the idea that people are equal and entitled to certain things by virtue of being human, the other based on customs and ways of being and self-organizations established millennia ago.Kulchyski is highly critical of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007. He calls it “a seriously flawed instrument” because it is considered an extension of the UNDHR, and thus makes Aboriginal rights subservient to human rights, ensuring that “universality will always hold the deciding cards over cultural difference, including cultural difference in political and economic spheres of activity.”And so universalism here leads to assimilation. In Canada, this principle played out in residential schools starting in the 1950s, when human rights took a strong foothold here. The idea of sending Indians to separate boarding schools no longer seemed right. Instead they would be integrated into provincially-funded public schools, where they would face intense racism and classism from white teachers and students. The residential school system had begun its slow winding-down process, but its creators and funders had failed to find a just alternative.Kulchyski is concerned that the UNDRIP could lead to states using human rights arguments to justify megaprojects on Aboriginal lands: a dam will fulfill nearby Aboriginal residents’ right to work. Kulchyski reminds readers of a familiar old argument that stealing children “can be justified to improve their educational attainment or social circumstances within the mainstream of society.”As unlikely as these scenarios may now seem, they have happened and do happen all the time. Aboriginal peoples across the country are still dealing with such things. A few hours from my Halifax home the Elsipogtog First Nation struggles against fracking activity on its traditional land, without consultation. Last year the RCMP made sensational national headlines with its violent crackdown on Mi’kmaw protestors at Elsipogtog. Hundreds of complaints have since been filed with the federal cops.Wagamese writes of the profound personal and community impact of such attacks on the land and traditional economics of Aboriginal peoples, in his poem “Grandfather Talking – Whitedog Dam”:Wagamese, without naming it, establishes a link between hunting economics and cultural identity. The dam, the “concrete wall” he speaks of, is a settler attack on Aboriginal rights, and on a culture and people.As long as the mainstream culture accepts the idea that the colonial, settler way of life is superior to traditional political and economic systems, including hunting, gathering and small scale agriculture, traditional peoples will be at risk, backed by seemingly progressive legal documents. But Aboriginal rights have been asserted in court with a remarkable 90 percent success rate in lawsuits against resource development since the 80s, according to CBC.Kulchyski closes his arguments with a number of sensible policy recommendations for Canada. Most notably, he wants the federal government to “replace the Indian Act with a first people’s governance recognition act, which would empower local Aboriginal authorities with province-like responsibilities.”He also wants social programs for Aboriginal peoples to be culturally-based and autonomous. The Nova Scotia Mi’kmaq have done just that with Mi’kmaw Kina’matnewey, an education authority with jurisdiction in Mi’kmaw educational matters. Staff members of the authority give talks across the country on the remarkable improvement in Nova Scotia Mi’kmaw education since it was put in Mi’kmaw hands in 1997.Resist the MonolithIn a sense, the struggle for Aboriginal rights is the single greatest resistance to the homogenizing of everything, the creation of the cultural/legal/political monolith. This process has been called globalization, or colonialism. The resistance against it is, in a sense, a struggle shared by art, when it’s at its best.The residential school system is perhaps the most infamous example of the long-winded attempt to assimilate Aboriginal cultures in Canada. Less discussed is the federal government’s obsession with turning hunters and gatherers into farmers. The residential schools themselves were operational farms.More subtly, the federal government stopped paying for gunpowder for reserves in the 1840s. The money would go toward an assimilative education instead. The problem with gunpowder was of course that it could be used to hunt, a pre-civilized economic endeavor.

Nearly two centuries later, the overarching goal of the federal government’s policymaking on First Peoples remains the same. Aboriginal peoples keep laying claim to their land and other rights; the federal government responds with centralized, one-size-fits-all policy on land claims, education, economic activity (particularly hunting) and everything else, all designed to get Aboriginal peoples to relinquish these rights to the greatest extent possible. The attitude is simple and abundantly capitalist: get with the times, perform labour for the settlers and earn a straight wage.As Kulchyski puts it, “‘we’ insist on imposing our hierarchies in the name of equality and freedom [so that] our notion of human becomes the notion of human…our notion of rights is the only notion possible.”It is tragic on two levels: 1) For the inestimable damage it has done to Aboriginal people over the past 400 years or so and 2) For what settlers have missed in assuming theirs to be not only the superior culture, but the only one worth having.Kulchyski notes that a wide range of Aboriginal writers are giving all Canadians glimpses into different worlds from what settler Canadians know and dream to be possible. Wagamese is one that he likes. Others include Thomas King, Thompson Highway, Jeanette Armstrong, Emma Larocque, Duncan Mercredi, and Katherine Vermette.These writers show us complex situations and characters who are Aboriginal people. Even when not explicitly dealing with Aboriginal rights, Aboriginal writers create characters that benefit from Aboriginal rights or suffer from their lack of recognition. Here is a chance for settler Canadians to learn what most of their forebears missed in “Indian” culture. Often, these writers celebrate oral history and storytelling, “traditional cultural forms in a contemporary context.”In “Grandfather Talking 3 – On Time Passing,” Wagamese celebrates life in the bush:“The Injun in this poem is a hunter gatherer hunkered down beside a ring of rock that might have been a fire pit before a Medicine Wheel or a ceremonial fire where Grandfather stone could scorch the ancient teachings into his heart and mind and soul and take him back into primordial time,” Wagamese writes. His poetry, like his fiction, explores the healing power of embracing traditional culture.Wagamese also celebrates a refreshingly minimalist, grateful economic approach, downright anti-capitalist perhaps, in “The Canada Poem.” “She taught me how to pray with ‘always ask for nothing,’” he writes. “She told me ‘just give thanks for what’s already here, that’s how an Indyun prays.’”The lessons in those poems are radical to some, traditional to others. They are the stuff of Aboriginal rights.*****Chris Benjamin is an award-winning author and freelance writer, and is currently the Writer in Residence and Pictou-Antigonish Regional Library. His latest book, Indian School Road: Legacies of the Shubenacadie Residential School, won the 2013 Dave Greber Freelance Award.