Are Indigenous People Second Class Citizens? How Kulchyski Conceptualizes Aboriginal Rights apart from Human Rights.

Peter Kulchyski is currently a full-time professor at the University of Manitoba in the Department of Native Studies. Dr. Kulchyski’s research revolves around “Aboriginal cultural politics, political development in the Canadian Arctic, land claims and self-government, Indigenous rights, contemporary critical theory, and political performance art.” (U of M website) Aside from being a professor and writing many academic articles, he states in his short autobiography that he is “ still fighting about a million battles in and for quite a variety of northern communities.” (2005) 

His research interests can be seen specifically in his paper “Aboriginal Rights are not Human Rights” The text argues that Indigenous rights are and should be distinguishable from Human rights, and many times, people cannot seem to understand why it is important to do so. Kulchyski offers a theoretical framework in which he argues that:

1. People do not understand Aboriginal rights, 
2. People miscategorizes Aboriginal rights under the broader ‘human rights’ context 
3. Miscatergorization is detrimental to Indigenous people

Kulchyski starts by explaining that many people, including legal scholars, do not understand Indigenous rights and why it is separate from human rights. He provides historical context for his argument and uses Canada as his example. 

In the context of Canada, Indigenous rights were especially prominent in the latter half of the 20th century with important cases and documents that either undermined or elevated Indigenous rights. Kulchyski briefly mentions how documents like the Universal Declaration of Human Rights, the Bill of Rights and the Indian act separates Indigenous rights. He examines Supreme court cases and decisions (Drybones, Lavell/Bedard, Calder, Guerin) and how it exposes discrimination towards Indigenous peoples in Canada’s legal system. 

Kulchyski examines how statehood as a construct can operate and maintain their power on it’s population, and using ‘rights’ as limitations that a state has. He uses industrialization as an example that gave the state legitimacy to maintain power in forms of totalitarianism. As a reaction, social movements that deployed discourse against state power, formed the first steps of codifying ‘human rights’. Kulchyski explains how the Universal Declaration reflected “an expanded notion of the ‘human’ and a notion that sate power had to be limited in a manner that expressed such ‘humanity’” (p. 39) 

Kulchyski writes how ‘rights’ have changed around the globe with the introduction of property rights, sometimes seen as ‘customary rights’. This was especially important considering that totalisation of states could and would essentially be able to, reconfigure concepts of space, time in which also formed new practices, and ideas of law. (p. 40) Totalisation, in his argument, was resisted by customary rights which would force ‘outsiders’ to operate according to customary titles. This can also be mirrored by Indigenous rights, where Kulchyski argues that indigenous rights over land are the opposite of capitalist interests over land. In this way, Aboriginal rights are the customary rights of Indigenous people, according to Kulschyski. 

Even after decades of resistance and lobbying, confusion about differences between Indigenous and human rights were seen, this time with Amnesty International Canada. Alex Neve, the secretary general of A.I., saw that the ‘governments recognized’ Indigenous rights, Kulchyski explains that by using ‘governments recognized’ in the context of Indigenous issues, it assumes that rights were given out of the benevolence of states. The article points that Neve’s speech was implying that Indigenous rights were secondary to human rights. Kulchyski states that this implication towards Indigenous rights fail to see that universal human rights “often provide the explicit justification for trumping Aboriginal Rights” (p. 43) 

Kulchyski puts great importance on how the Declaration is non-binding. The reason why it’s important to consider it’s non-legally-binding nature is because this document is rendered useless as it only serves as a guide unlike covenants. This essentially lets colonial states ‘off the hook’ as Indigenous rights  are less likely to be ‘violated’. Kulchyski states that the UNDRIP have no Indigenous rights recognition clause, meaning that it is merged with the broader context of human rights. In other words, the Declaration reaffirms a universalist approach on rights. 

Kulchyski further analyzes ten articles of the UNDRIP that demonstrates the reliance on indigenous human rights rather than Aboriginal rights. He explores article 21, which deals with the economic well being of Indigenous people. The article suggests that “States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions.” Kulchyski implies that this becomes dangerous as it may grant States a justification to interfere indigenous livelihoods. He writes, “ building a hydroelectric dam can be justified for the jobs it creates; removing children can be justified to improve their educational attainment or social circumstances within the mainstream of society” (p. 46), which both have been used by Canada as a tactic to circumvent Aboriginal rights. After his analysis of the articles, Kulchyski then argues that since the Declaration does not include the right to sovereignty, it assumes that Indigenous people are and should remain under the control of national states. 

The latter quarter of Kulchyski’s paper provides the framework needed to understand how all of what he wrote makes Aboriginal rights distinguishable from Human Rights. The reason why it is important to separate Indigenous rights from Human rights, is because Indigenous people operate according to their own distinct cultural worldviews. However, these worldviews are at risk when considering neoliberal capitalist ventures on Indigenous lands. This becomes a specific problem when considering settler colonialism in the past and present. In other words, Indigenous people need Indigenous rights, which includes Aboriginal rights, customary rights, and treaty rights in order to counter the states’ discriminatory practices that heavily marginalized and oppressed Indigenous people on a daily basis. Without considering Indigenous rights as its own category in the legal system, Indigenous people are amalgamated within the universalist approach found in the Universal Declaration of Human Rights, which often prioritizes state rule and individual rights rather than collective/cultural identities. 

Questions for the class 

Do you agree with Kulchyski, in that Indigenous rights are separate from Human Rights? If so, how and why? 

Do you think adding “Indigenous human rights” under the broader context of Human Rights is beneficial to Canada? 

Considering what we have learned in this course, do you think that Canada has acted as a colonial force in it’s own country? Do documents like UNDRIP help maintain colonialism? 

By applying our knowledge from this course, do you believe that Aboriginal rights are respected in Canada?

Do you agree with Kulchyski’s statement “If we truly respected Indigenous rights, we would be putting up a major, perhaps fatal, obstacle to neoliberal capitalist development.” 

In your opinion, how could we stop the on-going colonial efforts in Canada?

References

Kulchyski, P. (2011). Aboriginal Rights are not Human Rights. Prairie Forum, 36.

https://canadiandimension.com/articles/view/personal-dimension-bush-life

https://umanitoba.ca/faculties/arts/departments/native_studies/people/kulchyski.html