By: Nick Lencz
Pierre Elliot Trudeau was the Prime Minister of Canada when the Charter of Rights and Freedoms was implemented in 1982. Trudeau had long been a proponent of the rights of people and for every one to be given equal treatment and opportunity, at least within Canada. While Trudeau pushed for the Charter of Rights and Freedoms to be created, he assigned the negotiating and crafting of the Charter to his Justice Minister, Jean Chretien, who in turn was assisted by the Attorney Generals of Ontario and Saskatchewan, Roy McMurtry and Roy Romanow, along with the Premier of Ontario Bill Davis, all of whom were strong rights supporters.
The United Nations Declaration of the Rights of Indigenous Peoples (DRIP) was created over a much longer process than the Charter was. In 1982, a working group was established after a study by Jose R. Martinez Cobo about the discrimination that indigenous peoples face. In 1994 the working group submitted a first draft for approval. In 1995, a second working group was established to consider the first draft. In 2006 the third committee of the General Assembly adopted a draft resolution, which was revised and sponsored mainly by Peru. Shortly after, Namibia led an initiative to amend the draft resolution, which was finally voted on in September 2007, twenty-five years after the process began. The General Assembly voted one-hundred forty-four in favour, four against with eleven abstentions, although all four opposing states would eventually give their support. As a result of this long process, DRIP was created by an amalgamation of different authors across different states and twenty-five years
Both the Charter and DRIP are made up of a combination of positive (rights to) and negative (rights against) rights. The Charter focuses more on individual rights, while the DRIP has a more group-centric focus. The Charter takes the form of the standard western view on Human Rights, as it was created by a western state to be implemented in a western state. It protects political, civil, economic and social rights for everyone, but focuses mostly on civil and political. The Charter however focuses on equal treatment rather than equitable treatment. This means that it works towards treating everybody the same no matter what their situation is rather than justly in relation to their situation. It appears to hold everyone to the standard of white men rather than creating a standard of which to hold everyone to, and values the experience of white men as the experience that all people regardless of gender or race should be afforded.
DRIP focuses on social and economic rights more than civil and political, although it does include articles pertaining to political and civil. In particular it ensures that indigenous peoples can keep their indigenous identity along with holding citizenship in the territorial state within which they reside. Economically, one of the documents main focuses is ensuring that indigenous populations have full control over the development and resources of the land they reside on. This exemplifies Amartya Sen’s argument that development is freedom, in that the control over their own development gives indigenous populations freedom and the right to the land that is rightfully theirs in the first place. It also contains a similarity to Martha Craven Nussbaum and her human capabilities approach, in that it works towards allowing the indigenous peoples to retain their identity, but not forcing them to hold onto their indigenous identity. Either way, they are ensured the same opportunity. DRIP ensures that if they desire, indigenous peoples can act and be a part of the non-indigenous population of a state. One interesting difference between the Charter and DRIP is that the Charter contains the reasonable limits clause in section one, that states that all rights are only guaranteed as long as they do not infringe upon the rights of others. DRIP on the other hand contains no such similar clause in which rights could be suspended. It puts the rights of the indigenous populations fully above the rights of states, and rights and abilities given to them through the principle of sovereignty, such as the right and ability to govern all populations within their territory, as well as developing resources in their territory how they see fit. DRIP affords these rights and responsibilities to the indigenous populations, effectively circumventing state sovereignty. It also seems to be more in favor of equitable treatment rather than equal, in relation to how they were treated in the past, as exemplified, among other places, in article 28, section 1:
Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
While DRIP and the Charter go about things in different ways, they compliment each other rather well, and they both ultimately work towards two of the same main goals: protection from the government and protection from discrimination. The fact that both of these documents put the rights of people ahead of the interests of the government is a huge step forward in Human Rights. Comparing and contrasting the two illuminates why it is necessary in the Human Rights debate to consider both individual and group rights rather than only focusing on one. It shows that both can work and be effective mechanisms for the application of human rights. One interesting thing about DRIP is the first article which specifically mentions that indigenous populations have the right to the rights and freedoms laid out in the Universal Declaration of Human Rights, making this clearly a direct effort by the UN to expand the Human Rights debate and protection. DRIP appears, from a Canadian perspective, to be a more specific, in depth version of the Charter applied to a specific minority group who may otherwise face discrimination. This makes it all the more interesting that when the document was initially adopted, one of the four states who voted against it, along with the USA, Australia, and New Zealand, was Canada. This turn of events exemplifies the importance of both the individual and group approaches to Human Rights protection, as the Charter failed to fully protect groups as a whole, and gripes appear to have been required to be dealt with on an individual level, allowing Canada to do something like not sign a document that appears on the surface to simply expand upon their own constitutional document.
Questions
- The UN DRIP makes no exception for the greater good of a state that contains indigenous populations when applying rights towards those populations. Is this a fair thing for the document to do, or is it taking human rights “too far”?
- The Charter was created under a liberal Canadian government and Canada refused to sign DRIP under a conservative government. How much does politics impact Human Rights and the discourse surrounding it. Should Human Rights be considered a political issue?
- While the Charter focuses on individual rights and DRIP focuses on group rights for one specific group, both are important. Do you think group and individual rights are equally important to protect or is one more important than the other?
- Why did Canada feel comfortable opposing DRIP, despite the Charter of Rights and Freedoms being enshrined in the constitution?
- Does Canada do a good job in treating indigenous populations equitably and protecting their rights according to the requirements of DRIP and the Charter?
Dr. Meredith Terretta 