Getting Aboriginal Rights Right

In 2007, the United Nations adopted the Declaration on the Rights of Indigenous Peoples (with the unfortunate acronym DRIP), which is meant to apply to the societies around the world that meet the UN’s definition of indigenous peoples. (The world’s indigenous population is estimated to exceed 300 million, out of a total population of 7 billion.) Although Canada under Liberal governments had been a keen supporter of the declaration, under the Conservative Harper government it  was one of the last states to adopt it, finally doing so in 2010.

Canadians appear to take the rights of aboriginal peoples seriously. I know of no other country in the world whose constitution includes, as ours does, the flat-out statement that the aboriginal rights of aboriginal peoples in the country are “recognized and affirmed.” Yet there is much confusion about what these rights are, including whether aboriginal rights are the same thing as the rights of indigenous peoples, and much concern about how far and in what ways these rights should be given effect in Canada. So two new books that focus on getting aboriginal rights right should be welcomed.

Peter Kulchyski, a Native studies scholar at the University of Manitoba, aims his book directly at the existential question—what are aboriginal rights? His title gives the negative part of his answer: Aboriginal Rights Are Not Human Rights: In Defence of Indigenous Struggles. What he means by this is that aboriginal rights should not be thought of as simply an extension to aboriginal peoples of those classic liberal rights that grew out of the European enlightenment and have come to be the foundation of human rights codes around the world. Unlike those human rights that apply to all people wherever they are situated, aboriginal rights are rights that only certain people and peoples can assert. Aboriginal rights are those of peoples who as a result of colonialism find themselves in the position of being a minority in their homelands, and stem from the struggle against that colonialism.

We can all agree with Kulchyski that aboriginal rights apply only to peoples in particular circumstances, not to all peoples, without rejecting the universality of the principle that underlies the justice of our recognition of aboriginal rights. That principle is the equality of all peoples that, although not always lived up to, is the foundational principle of the United Nations. It is because the governments of nearly all of the states in the world recognize the validity of that principle that they could endorse the UN’s Declaration on the Rights of Indigenous Peoples.

Kulchyski dissects the declaration’s 46 articles, showing how, in his view, some are simply the extension of human rights (for instance, freedom from any kind of discrimination) to aboriginal peoples, while others relate to true aboriginal rights (for instance, the right to autonomy or self-government in matters relating to their internal and local affairs), and some are hybrids (for instance, the right to the dignity and diversity of their cultures). It is true that the declaration is a somewhat incoherent hodgepodge, but Kulchyski shows his fundamentalist perspective in faulting it for being framed in accord with “the existing state system.” So it is. But what did he expect from an association of nation-states?

Kulchyski fears that what he regards as true aboriginal rights will be required to conform with universal human rights. Because these latter rights are essentially Western European in origin, the UN declaration has, for him, an assimilationist thrust. As an example he cites article 21, which provides that “indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.” The use of the Latin “inter alia,” he says, betrays the document’s cultural bias as does the inclusion of “vocational training.” Such a right, he argues, could be used to justify, in the name of indigenous peoples’ rights, building hydroelectric dams to provide jobs and removing children to improve their education.

For Kulchyski, culture must be understood as including the traditional hunting and gathering economies of aboriginal societies. True aboriginal rights must, above all, protect the continuation of that economy. Here he seems oblivious to the fact that many of Canada’s aboriginal peoples had agrarian economies well before the white man arrived (I am writing this review in Huronia) and that virtually all aboriginal peoples have moved to participating in mixed economies in which there is a great need, among other things, for vocational training. Kulchyski, whose background is European, appears to be wedded to a “frozen culture” understanding of aboriginal peoples.

Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights, the other book under consideration here, also by a University of Manitoba professor, but one whose ancestry is Cree, manifests a much more dynamic understanding of aboriginal culture. As a law professor, David Milward focuses on aboriginal justice systems—more specifically, criminal justice systems. Self-consciously, he situates himself in the middle of the ideological spectrum on aboriginal rights, neither as demanding or fundamentalist as Taiaiake Alfred (or Peter Kul-chyski) nor, to use Kulchyski’s words, as compliant as Tom Flanagan or Alan Cairns. He supports the goal of establishing aboriginal justice systems in Canada that are built on a tradition of peacekeeping and restorative justice rather than western systems’ emphasis on retribution and punishment. But he recognizes the need for aboriginal justice systems to evolve and overcome some of their shortcomings, including the difficulty of providing an accused person with a fair hearing if the justice system is controlled by the dominant family in a small community.

Canada’s justice system has provided limited openings for aboriginal practices. Judges, both aboriginal and non-aboriginal, employ sentencing circles in which offender and victim participate with members of the community in a process aimed at healing the breach in the social fabric and reintegrating the offender back into the community. Section 718.2(e) of the Criminal Code requires judges to consider “all available sanctions other than imprisonment that are reasonable in the circumstances … with particular attention to the circumstances of aboriginal offenders.” Peacemaker courts are functioning in a number of aboriginal communities. Milward regards these developments as steps in the right direction, but they depend on the discretion of non-aboriginal judges, apply mostly to minor offences and depend on the accused pleading guilty or being found guilty in the mainstream system. They fall far short of enabling aboriginal peoples to establish and maintain their own justice systems as part of their right to manage the internal affairs of their own societies.

Good arguments can be made that the historic treaties were premised on aboriginal peoples retaining autonomy over their internal affairs. But Milward is doubtful that the non-aboriginal judiciary that controls treaty interpretation will be willing to accommodate a full aboriginal justice system. Some modern treaties, notably the Nisga’a, Sechelt and Tsawwassen agreements, provide some scope for community justice but confine it to summary offences and subject it to appellate supervision by the mainstream system. If aboriginal peoples attempt to pursue substantive jurisdiction over criminal justice in their communities, Milward believes, on the basis of his reading of the Supreme Court of Canada’s interpretation of the “existing aboriginal and treaty rights” in section 35 of the Constitution Act, 1982, that they are likely to fail. They are left, he concludes, “without a solid constitutional foundation with which to challenge Canadian policies that accord only limited accommodations.”

Milward works through what a full-blown aboriginal justice system might look like in all of its dimensions—sentencing, trial, investigation—if it went some way to accommodate differences between the mainstream system and traditional aboriginal systems. The accommodations he is most concerned about relate to criminal justice rights in the Charter of Rights and Freedoms. He does not see the reforms of aboriginal justice which he advocates as assimilationist. He justifies them as enabling aboriginal systems to better accord with what he refers to as “natural justice.” Milward acknowledges that there is a clause in the Charter, section 25, according to which Charter rights are not to abrogate or derogate from “rights or freedoms that pertain to the Aboriginal peoples of Canada” including those recognized by the Royal Proclamation of October 7, 1763, and those acquired by land claim agreements. Since the political independence of Indian nations recognized by the Royal Proclamation included the freedom to continue operating their own justice systems, and modern land claims agreements could explicitly allow aboriginal peoples to restore their own justice systems, Milward might have taken the position that legally aboriginal peoples do not have to modify their traditional systems to comply with Charter rights. It is to his credit that he eschews that position, and instead insists on the moral imperative for aboriginal peoples to evolve their systems so that they meet universal principles of justice.

The meat of Milward’s book is devoted to this exercise of exploring ways in which aboriginal justice systems, while remaining true to their restorative and healing purposes, can meet challenges to their efficacy and integrity. These challenges include the risk in small communities of bias against the accused in systems relying on local people to administer justice, the difficulty of ensuring that the accused gets a fair hearing without making the process unduly adversarial, and the need for strong sanctions against persistent and dangerous offenders.

In investigating various ways of resolving tensions between western and aboriginal justice systems, Milward’s wide-ranging inquiry looks at tribal courts in the United States, aboriginal initiatives in Australia and the experience of a number of aboriginal peoples in Canada. The result is the most comprehensive account and appraisal available on aboriginal justice systems in the contemporary world. It is an extraordinarily valuable contribution to scholarship and policy in this important field of aboriginal relations.

In his analysis of each phase of criminal justice, Milward carefully delineates the solution he favours in resolving tensions between the ideologies of western and aboriginal systems. The blueprint of an aboriginal justice system this yields goes far beyond a mere “indigenization” that amounts basically to appointing more judges with an aboriginal background to administer the mainstream process. It is a system that would, among other things, enlarge the scope for the uncodified customary law that each aboriginal people has developed over the years, allow for the removing of judges from the process when the parties are able to work out their own solutions and, when there are trials, conducting them in a more inquisitorial manner. It is a system that, in contrast to English common law ideology, tends to give more weight to the well-being of the community than the rights of the individual. Nonetheless, Milward thinks that such a system, if it had to, could survive Charter scrutiny by non-aboriginal judges, providing they are “culturally sensitive.”

It is common ground for both these writers that it is aboriginal peoples, not non-aboriginal governments or courts, that shape the substance of their rights. Their rights derive from the liberty they enjoy as peoples to determine their political destiny, and their responsibility for looking after their societies and the lands and waters that nurture them. Courts, including Canada’s Supreme Court, in adjudicating disputes about their rights may or may not get them right. These judicial doctrines and decisions about aboriginal rights can build bridges connecting them to the legal system of the state in which aboriginal peoples find themselves embedded. Such bridges can, of course, be extremely useful in promoting harmonious relations. But while failure to adequately recognize an aboriginal right may make it difficult to assert and enjoy it, it does not kill the right.

Where Kulchyski and Milward part company is in their respective readings of the path that aboriginal peoples in Canada might take in exercising their aboriginal rights. Kulchyski’s vision seems frozen in the past, and in the bush. In the postscript of his book, he refers to First Nations cultures as “bush cultures” and says that the two borders that remain meaningful are the one between Canada and “the states that remain united to our south” and “the border between bush culture and mall culture.” It is in the bush in northern First Nation communities that Kulchyski has spent as much time as possible over the last 30 years. We can appreciate his admiration for the life he has experienced there and why he values it so much over the grit, the grime and, yes, the malls of the more urbanized settings in which the majority of Canada’s indigenous population have come to reside. We should also appreciate the section of his book that so poignantly describes the devastation wantonly visited on the First Nation communities of northern Manitoba by hydroelectric projects in order to produce “cheap power” for the mall people at the cost of wiping out the traditional economy of the bush people. Still the path that most of Canada’s aboriginal peoples, be they Indian, Inuit or Métis, will likely take in exercising their right to develop their own societies according to their own lights is much more along the lines of David Milward’s vision. It is a path guided by a capacity for self-criticism and adaptation rather than a romantic attachment to the past.

The differing perspectives of Kulchyski and Milward reflect the tension between traditionalists and modernizers in aboriginal communities that Milward acknowledges may impede progress toward adopting comprehensive justice systems of their own. An equally difficult impediment is the small size, localism and isolationism of most First Nation communities. The damage done to indigenous self-government by carrying out the Indian Act goal of breaking up the tribal system should never be underestimated. Until there is an effective rebuilding of confederal structures that enable small communities, on a tribal, treaty or regional basis, to work together for common political purposes, including the development of their own justice system, aboriginal self-government for most of Canada’s indigenous peoples will be an illusion.

The torpid follow-up to the Harper-Atleo “summit” provoked by the Idle No More movement shows clearly that progress toward aboriginal peoples enjoying the aboriginal and treaty rights our constitution says we recognize and affirm depends at this stage in our history on aboriginal initiatives. They simply have to start “doing it”: assert their rights and let other governments react to them. We all have a stake in their doing this. Our mainstream justice system with its overuse of imprisonment, costs and delays, not to mention its wrongly convicted victims, could benefit from incorporating some of the strengths of the aboriginal system. And mall people should be concerned about striking a more sensitive balance between extracting wealth through industrial development in the Canadian hinterland and protecting the interests of the bush people for whom that hinterland is their homeland.

All Canadians stand to benefit from getting aboriginal rights right.