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Bill C-262 - Second Reading - UNDRIP

Honourable senators, I rise today to speak to second reading of Bill C-262, a piece of legislation which would work to ensure that Canada’s laws are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. While this bill is necessary in our current climate and reality, the question we must reflect upon is that with the UN proclaiming the Universal Declaration of Human Rights in 1948, what has happened to the condition of an entire subset of Canada’s — and the world’s — population that we face the necessity of requiring a second such declaration?

Colleagues, according to the Canadian Human Rights Commission, human rights are protected by federal, provincial and territorial laws. Countries have human rights to ensure individual and governmental accountability if human rights are not respected. Canada’s human rights laws stem from the aforementioned 1948 Universal Declaration of Human Rights, which provides a list of 30 articles outlining every Canadian’s universal human rights. You do not have to earn your human rights; you are born with them. They are the same for every person — no one can give them to you — but human rights can be taken away, and they were in Canada. How do I reconcile my history, in which I and other Indigenous peoples have been cheated, dehumanized and constrained by law? How can I obtain the basic human rights taken from me in my own country?

Honourable senators, the 1982 Canadian Charter of Rights and Freedoms is part of Canada’s Constitution and protects every Canadian’s right to be treated equally under the law. Yet it took two years and the raising of concerns before an international audience, including the United Nations and the British Parliament, before the Canadian government finally agreed to include Aboriginal rights in the Constitution. This constitutional allowance means that the government cannot override Aboriginal rights, which have a human rights component.

Section 35 under the Constitution Act recognizes Aboriginal rights but did not create them. Aboriginal rights existed before section 35; yet, the lack of a definition of these rights ensures that the only recourse for asserting them would be a dependency on litigation. Litigation is not the path to reconciliation.

Meanwhile, there has been so much effort and resources put toward trying to assimilate First Nations. The 1857 Gradual Civilization Act tried to do away with the tribal system. The 1869 Gradual Enfranchisement Act gave control over status Indians, marking the beginning of gender-based restrictions to status. These two acts were combined under one — the 1867 Indian Act. The 1969 white paper was another attempt at assimilation and genocide. Again, it took two years, with an international audience, before it was agreed to include Aboriginal rights in the Constitution.

Honourable senators, human rights abuses did not end when the Universal Declaration of Human Rights was adopted in 1948, although progress has been made internationally. Greater freedoms have been gained; violations have been prevented; independence and autonomy have been attained. Many people have been able to secure fair access to education, economic opportunities, adequate resources and health care. They have obtained justice for wrongs and national and international protection for their rights through the strong architecture of the international human rights legal system. Yet, in Canada, Indigenous peoples are still struggling to get out of oppression, secure economic opportunities in their own territories, and obtain self-determination.

Canada is a unique country. It is the only country in the world that has an Indian Act. The Indian Act was established in 1876 as a way to control most aspects of Aboriginal life: Indian status; land; resources; wills; education; band administration; a reserve system, which are virtual open-air prisons; and a pass system started in 1885 lasting 60 years, which was a form of segregation known by government officials to be contrary to treaties. The Indian Act banned them from expressing their identities through culture and governance. It also banned the use of spiritual ceremonies. Under this act, the government made Indians wards of the state, meaning Indians of all ages were treated as children. The 11 numbered treaties were negotiated between 1871 and 1921. In effect, the Indian Act was drafted to counteract the majority of treaties before they were even negotiated. How can a liberal democracy legislate away the human rights and the right of consent from an entire targeted population group?

Colleagues, when the Human Rights Act was passed in 1977, section 67 prohibited First Nations people from filing an official complaint that the Indian Act was a human rights violation. This was later described as a “serious disregard for human rights.” The Indian Act itself was exempted from Canada’s own human rights law, which inherently implicates the Canadian government to be complacent in a serious human rights violation.

In May 2008, the House of Commons unanimously passed Bill C-21 to repeal this section of the Canadian Human Rights Act.

Honourable senators, people often speak about the rule of law in Canada, but for Indigenous peoples there has never been fair application. There has been no separation of powers between law and politics as most of our problems as Indigenous people continue to be politically driven. According to the UN, rule of law is consistent with human rights norms and standards. Did Canada simply set aside the rule of law when it came to Indigenous peoples?

In his book The Mobilization of Shame, Father Robert Drinan, a Jesuit, writes at page 4 that Article 55:

. . . asserts that the United Nations desires to create “conditions of civility and well being which are essential for peaceful and friendly relations among nations.” . . . it is based, the charter reads, on the “principle of equal rights and self-determination of peoples.”

He goes on to say:

It is in essence a pledge by the rich nations to create an economic system which would bring “conditions of civility and well being” to all countries.

In Canada, First Nations have long been seeking economic conditions of stability but made very little progress despite section 35. First Nations have been frustrated in gaining economic rights due to jurisdictional issues and legislation which I believe would be viewed as consistent with the principles of capitalism and not stewardship. In Canada, the lasting impression is that although world law guaranteed political legal rights such as life, security and liberty, economic rights, on the other hand, such as entitlement to a living wage and health benefits, were on a different tier.

In her book Oppression: A social determinant of health, Elizabeth McGibbon states, on page 33:

The concept of vulnerability worked well when it first came into common usage because it allowed us to name the people who are most oppressed and thereby attempt to influence public policy in the direction of justice. However, the term is not ultimately effective in ameliorating the physical, spiritual and psychological suffering caused by injustice because it reinforces the idea of a nebulous force that is somehow causing ill health. Rather, it is time to change our thinking to explicitly identify the threats that are causing ill health: colonization, re-colonization, post-colonialism neoliberal economic policy and corporatization of health care delivery, to name a few.

In 1845, Friedrich Engels described the phenomena of social murder which still rings true in this country today. He says:

When one individual inflicts bodily injury upon another such that death results, we call the deed manslaughter; when the assailant knew in advance that the injury would be fatal, we call his deed murder. But when society places hundreds of proletarians in such a position that they inevitably meet a too early and an unnatural death, one which is quite as much a death by violence as that by the sword or bullet; when it deprives thousands of the necessaries of life, places them under conditions in which they cannot live – forces them, through the strong arm of the law, to remain in such conditions until that death ensues, which is the inevitable consequence – knows that these thousands of victims must perish, and yet permits these conditions to remain, its deed is murder just as surely as the deed of the single individual; disguised, malicious murder, murder against which none can defend himself, which does not seem what it is, because no man sees the murderer, because the death of the victim seems a natural one, since the offence is more one of omission than of commission. But murder it remains.

Honourable senators, structural violence is defined by Johan Galtung as “. . . any constraint on human potential caused by economic and political structures.”

Structural violence is evident in unequal accesses to resources, political power, education, health care and legal standing. Structural violence also occurs when the devastation of resource extraction is not acknowledged or addressed, allowing toxic materials to continue to cause a decreased quality of life and/or early deaths in First Nations because of their proximity to these toxic materials, and the devastation to land, water, air and animals.

In the preamble of the Declaration of Human Rights it states:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

The paradox is how can Indigenous peoples be protected by a rule of law which is what oppressed them in the first place?

Honourable senators, I ask for your support in the passage of Bill C-262, not only because it is the moral and right thing to do, but because we, the Indigenous peoples, have the right to live lives that other Canadians and new citizens have the luxury of taking for granted. Consent and self-determination are common threads that bind the majority of human rights. Yet these have long been the basic rights denied to Indigenous peoples. Bill C-262 will be a first step toward ensuring that we equally protect the basic human rights of all Canadians. It is time for Canada to see past the difficulty of these circumstances and continue on our road to reconciliation. Thank you.

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