Because international law supported European assertions of sovereignty over Indigenous territories beginning in the 15th century it’s appropriate for international law to deal with the issue of Indigenous rights now. The current situation of Indigenous peoples was created by international law. European nations created an international law that allowed European powers to divide up and colonize the rest of the world and profit from it. Europe exported enough of its population to at least some of the colonies in the Americas and the Pacific that when they were decolonized, Europeans or their descendants continued to govern on the basis of democratic concepts. The non-Indigenous populations of Australia, Canada, New Zealand and the United States – the most affluent of those former colonies – have more to lose than anyone else if, through the recognition of Indigenous rights, historic inequities arising out of Europe’s international law are redressed. Thus it’s not surprising that when the United Nations General Assembly voted on the Declaration on the Rights of Indigenous Peoples (the DRIP – an unfortunate acronym if ever there was one) in September 2007, only Canada, Australia, New Zealand and the United States voted against it. Their votes against the Declaration stood in contrast to the 143 states voting in favour. (Just for the record, eleven states abstained, and 34 were absent for the vote.) Since then all four of the nay-saying states have reversed their positions – Australia in 2009, and New Zealand, Canada and the USA in 2010. So now we’re all in support of the DRIP – or are we?
When New Zealand endorsed the DRIP in April 2010 it was difficult to know if this was a cause for celebration or not. Some said that it changed everything for Maori in New Zealand, and others said that it changed nothing. The New Zealand Prime Minister seemed to be in the latter camp, saying “we already implement most provisions contained within it.”
Last fall, all sorts of people (including AFN Chief Shawn Atleo and Carlos Mamani Condori, Chair of the UN Permanent Forum on Indigenous Issues) praised Canada for finally, on November 12, 2010, endorsing the United Nations Declaration on the Rights of Indigenous Peoples. So it seems to have been cause for some celebration. However the celebration lasts only as long as you don’t look too closely at what Canada said at the time. In fact, Canada’s was a fairly faint endorsement.
In its statement of support for the UNDRIP, Canada emphasized that the Declaration is an aspirational document, a non-legally binding document that does not reflect customary international law nor change Canadian laws. The longest paragraph in the statement reiterates Canada’s concerns with various provisions of the Declaration which concerns “are well known and remain”. Apparently the only thing that has changed since its initial vote against the Declaration is Canada’s confidence that “. . . Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” It says that the Canadian Constitution (not the Declaration) “ . . . will continue to be the cornerstone of our efforts to promote and protect the rights of Aboriginal Canadians.” Canada said, in essence, that it can now support the Declaration because it is convinced that its endorsement of UNDRIP will not change a thing. And just in case it might change something Canada was sure to state that the Declaration is only aspriational and doesn’t represent customary law. It’s just window dressing.
There is at least a slight difference between Canada’s endorsement of UNDRIP and the USA’s, which was announced on December 16, 2010. The American announcement also emphasizes existing American law and refers to the fact that UNDRIP is not legally binding or a statement of current international law. However, it also says that the declaration has both moral and political force, that it expresses the aspirations of both Indigenous peoples and States, and that it
. . . expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws and international obligations, while also seeking, where appropriate, to improve our laws and policies. (My emphasis.)
The American approach is definitely oriented toward the status quo, but it at least admits that there might be room for improvement in laws and policies regarding Indigenous rights. Canada’s statement does not.
The American statement seems to better (though not perfectly) reflect the general understanding in international law of the force of a Declaration. Although Declarations, as resolutions of the General Assembly, cannot make law, they often represent or come to represent customary international law and then are cited as authoritative documents. According to the UN Commission on Human Rights, declarations are rarely used, “relating to matters of major and lasting importance where maximum compliance is expected.” A declaration creates “a strong expectation that Members of the international community will abide by it.” By voting against it, Canada, New Zealand and the United States were trying to avoid the need to comply with it. Their statements of “endorsement” suggest that they are still, with the possible exception of the US, hoping to characterize the status quo as sufficient to comply with UNDRIP.