ArticlePDF Available

Aboriginal Rights are not Human Rights

Authors:

Abstract

This article argues that the universalist notion of human rights cannot encompass Aboriginal rights, which are located in local relationships of people and places, practiced through cultures. These are specific rights best conceptualized as cultural rights. These rights are threatened by capitalism, and the universalist human rights discourse is poorly equipped to take this up. The conceptual confusion between the two forms of rights undermines Aboriginal rights struggles.
 
  .  (Fall ): 
ABORIGINAL RIGHTS ARE NOT HUMAN RIGHTS
PETER KULCHYSKI
Abstract
is article argues that the universalist notion of human rights cannot
encompass Aboriginal rights, which are located in local relationships of
people and places, practiced through cultures. ese are specific rights best
conceptualized as cultural rights. ese land-based rights are threatened by
capitalism, and the universalist human rights discourse is poorly equipped
to take this up. e conceptual confusion between the two forms of rights
undermines Aboriginal rights struggles.
Sommaire
Cet article maintient que la notion universaliste des droits de l’homme ne peut
pas couvrir les droits autochtones, qui se situent dans les relations locales entre
personnes et places, telles que pratiquées par les cultures. Il s’agit là de droits
spécifiques que l’on pourrait appeler droits culturels. Ces droits, basés sur le
territoire, sont menacés par le capitalisme, et le discours universaliste sur les
droits de l’homme est mal équipé pour les défendre. La confusion conceptuelle
de ces deux types de droits nuit à la lutte pour les droits autochtones.
“Politics is not made up of power relationships;
it is made up of relationships between worlds.”
 , Disagreement
 

T
he growing discourse around Aboriginal rights has suered from a
conceptual confusion between Aboriginal rights and human rights.
Human rights have emerged from a European historical context and are
inextricably linked to the notion of a universal humanity. While notions of
universal human rights should not be lightly dismissed, they have on occasion
served colonial projects by justifying interventions into indigenous practices.
Aboriginal rights were historically not an outgrowth of the western ‘march
of progress’, but rather emerged from local indigenous community struggles
for land and culture. ey must be conceptualized as ‘cultural rights’ that act
to counterbalance universal notions of human rights with an appreciation for
the cultural distinctiveness of indigenous peoples. What follows will advance
both a conceptual and historical argument pertaining to the dierence and will
subsequently analytically specify between human rights, Aboriginal rights, and
indigenous human rights. is paper discusses the United Nations Declara-
tion on the Rights of Indigenous Peoples, the Aboriginal rights provisions
of the constitution of Canada, a variety of legal decisions from Canada, and
examples from indigenous communities and peoples in northern Canada
with whom the author works.
i. The Confusion
Two years ago, as allies of a new indigenous activist organization called
“Defenders of the Land” in Canada, the on-line members engaged in a debate
about a document called our “basis of solidarity.” I had paid passing attention
to the debate, preoccupied with other concerns and with helping establish the
organization’s basic capacity. Late in the increasingly sharp on-line debate, I
decided to review the draft. I noted that the words “Aboriginal rights” had
disappeared from the draft, in spite of the fact that our indigenous leaders has
been committed to them, and inquired why the concept had been dropped.
I then learned that a large sector of the social justice activist community
was opposed to the idea of ‘rights’, seeing rights as a justification for state or
imperial interventions rather than as a tool for marginalized communities. I
intervened in the debate through a lengthy (but in academic standards quite
schematic) email as follows:
I’m going to write a paragraph on indigenous rights here, because I
hadn’t realized the issue was quite so controversial in our groups. So
you can skip this if you haven’t time, etc. e notion of rights is not
liberal or capitalist. It comes in the western tradition as far back as the
plebs of Rome/Greece trying to wrest power from the aristocrats, and
from poorer people in a variety of situations around the world using
the same idea, often as a way of limiting unrestrained power of the rich.
 
     
It’s fair to say that the rich also always promoted a notion of rights,
property rights, that also goes back a long ways. e notion of rights
became individualist in western Europe from around the Enlightenment,
and possessive individualism became a core foundation of capitalist
legal frameworks and is still with us today. e  Declaration of
Human Rights, and the many other similar declarations, tended to be
universalistic, Eurocentric and individualist, though it still has value
as an obstacle to unimpeded capitalist development in certain contexts.
Neoliberalism is indeed associated with an individualist property
rights agenda. Aboriginal rights have an entirely dierent origin. ey
come from the struggle of indigenous peoples to have their customary
practices and land ownership respected. ey were not enshrined by
the  until decades after the universal declaration. ey are by nature
collective (though can be and most often are invoked by individuals
on behalf of the collective: Roberta Keesig’s fight to build a cabin was
a fight for all Anishnabwe). If we truly respected indigenous rights
we would be putting up a major, perhaps fatal, obstacle to neoliberal
capitalist development. Hence, I have no hesitation about my unquali-
fied support for indigenous rights at the same time as having some
serious questions about so called ‘universal’ human rights (which need
and sometimes do include a right of association) and absolutely despise
possessive individual property rights ( October ).
e language of Aboriginal rights was eventually maintained and strength-
ened in the Defenders of the Land “Basis of Unity” and other statements
(see www.defendersoftheland.org). But the debate helped me realize that
there were many well-motivated people who had little understanding of the
specific nature of Aboriginal rights and in general tied the idea quite closely to
broader notions of human rights, the latter of which for a variety of legitimate
ethical-political reasons they had come to be suspicious of. It was this event
and discussion that prompted me to write these words. e confusion can
be found in the analysis by close observers of the processes that lead to the
United Nations adoption of the resolution, such as Alex Neve, the Secretary
General of Amnesty International Canada, and is found in the Declaration on
the Rights of Indigenous Peoples itself. In what follows I will discuss briefly
and schematically the varying histories of human rights and Aboriginal rights,
show how the conceptual confusion between them operates to undermine
Aboriginal rights, and lay out a structure for clarifying the problem. I will
use the term ‘indigenous’ to describe the varieties of peoples with whom the
Declaration and my analyses are concerned. I will use the term ‘Aboriginal
rights’ to discuss the specific rights of indigenous peoples, and indigenous
  

human rights to describe the human rights of indigenous peoples. e ‘rights
of indigenous peoples’ is a term that encompasses, for better or worse, both
forms of rights. e term ‘the declaration will be my shorthand for the United
Nations Declaration on the Rights of Indigenous Peoples, while ‘universal
declaration’ will be a reference to the Universal Declaration of Human Rights.
ii. The Courts
In Canada, the confusion can be traced (or became evident) in the late sixties
through the decisions the Supreme Court was faced with in the Drybones
case and in the Lavell/Bedard cases. Both of these cases dealt with the human
rights of indigenous peoples.
e court was called on in  to determine whether Joseph Drybones’s
conviction of an alcohol related oense under the Indian Act violated his
human rights, since the same oense would have resulted in a less severe
punishment to any non-Aboriginal person under the laws of general applica-
tion. While the case was a split decision, the debate was over whether the
then still relatively new Bill of Rights, a piece of federal legislation, could be
used to declare other pieces of federal legislation, like elements of the Indian
Act, inoperative. ere appeared to be little doubt that Drybones had been
discriminated against and the majority ruled in his favour.
A few years later (), however, when the court was faced with virtually
the same issue though in this event respecting the question of discrimina-
tion against ‘Indian’ women who lost their legal status as Indians through
marriage to non-Indian men. Both Jeanette Lavell and Yvonne Bedard had
lost their legal status as ‘Indians’ because they married non-Indian men. Both
women took heart from the Drybones decision and tried to have it applied to
their circumstances. eir cases were joined at the Supreme Court level. In
another narrow split decision the court reversed its position, deciding that
the human rights bill could not overturn sections of the Indian Act. But the
 decision was undoubtedly also influenced by the national debate over
Aboriginal rights occasioned by the struggle to force the federal government
to withdraw the  white paper, and by the fact that the court had some
months earlier confronted the fact of the existence of Aboriginal title in the
Calder cite case.
e Calder case () was launched by the Nisga’a First Nation of B.C.,
who asked the courts to recognize their unsurrendered Aboriginal title to
their traditional territory. Although they lost the case on a technicality, the
success of the Nisga’a in having six out of seven judges say that Aboriginal title
was a doctrine that still had legal force in Canada was a major step forward
for Aboriginal rights, but in some ways it also contributed to the confusion.
Legal commentators at the time, for example Cumming and Mickenberg,
 
     
tended to argue that Aboriginal rights derived from Aboriginal title. Arguably,
Aboriginal title could be seen as a way of securing (human) property rights of
indigenous people. If everything, or in this case Aboriginal rights, derived from
Aboriginal title then it would be possible to suggest that Aboriginal rights in
Canada was, in a fairly esoteric but still discernable fashion, a form of human
rights. e first major post constitutional case, Guerin ( )—involving a
dispute in which a local Indian agent had leased reserve land at a lower than
market value—also lent support to this view, focusing on Aboriginal title as
a basis of the federal government’s fiduciary responsibility.
While the Sparrow and Sioui cases in , on fishing and treaty rights
respectively, did not touch on the issue, since neither dealt with Aboriginal
title, both were looking at Aboriginal and treaty rights in the absence of
discussion of title. It was possible, then, to start thinking along a dierent
track. By  I myself felt compelled, in my “eses on Aboriginal Rights”
which introduced Unjust Relations (), to argue that Aboriginal rights
were divided into two categories, property rights and political rights; that
the latter did not derive from the former; and that “Aboriginal cultures are
the waters through which Aboriginal rights swim” (-).
By , in the Van der Peet trilogy of decisions (which included Gladstone
and Smokehouse, all concerning the right to commercially harvest fish), the
Supreme Court of Canada had come to articulate the same view (needless to
say without my having had any influence on the issue) and, more importantly,
to clearly understand the dierence between human rights and Aboriginal
rights. Aboriginal rights were seen, like Aboriginal title, to derive from the
doctrine of prior occupancy. But title was not the basis of rights; rather, writing
for a strong majority the then Chief Justice Lamer stated “Aboriginal title
is the aspect of Aboriginal rights related specifically to Aboriginal claims
to land; it is the way in which the common law recognizes Aboriginal land
rights” (para ). Furthermore, and famously in the case, Aboriginal rights
were eectively defined as follows: “in order to be an Aboriginal right an
activity must be an element of a practice, custom or tradition integral to the
distinctive culture of the Aboriginal group claiming the right” (para ). is
established that Aboriginal rights were directly related to indigenous culture.
More importantly for our purposes here, in Van der Peet the justices, citing
academic commentary, argued that “Aboriginal rights cannot, however, be
defined on the basis of the philosophical precepts of the liberal enlightenment.
Although equal in importance and significance to the rights enshrined in the
Charter, Aboriginal rights must be viewed dierently from Charter rights
because they are rights held only by Aboriginal members of Canadian society.
ey arise from the fact that Aboriginal people are Aboriginal” (para ). By
Charter, of course, they mean the Charter of Rights and Freedoms, which in
 

Canada is the constitutional instrument protecting human rights. Inasmuch
as this is clearly recognized by the judiciary in Canada, it amounts to the
argument of this paper: Aboriginal rights are not human rights.
iii. Theoretical Histories: States and Rights
Viewed from one angle, the state itself, as a social construct, may be nothing
more than an oscillation between the concentration of power and its limitation
in the form of ‘rights’. is form of definition would run against the grain of
Giorgio Agambens recent proposition that emphasizes the state’s monopoly
on violence (Agamben’s notions follow from Carl Schmitt rather than Max
Weber, with whom the idea is also associated) in his influential Homo Sacer
(). Gathering and hunting peoples invented a form of sociality that did
not depend on alien forms of condensed power (the state); communities
involved intricate webs of rights and responsibilities that were embedded in
cultural practices such as ceremonies, naming, gift giving, food sharing and
socially extended responsibilities for child and elder care. Tithe societies (see
Eric Wolf ) involved state forms in which the sovereign did not enjoy
absolute or totalitarian power (hence the development of ‘absolutism was
an aberration that needed to be named, which still included citizen rights,
however uncodified). Early western tithe society, the ‘ancients’, codified and
articulated property rights in the interest of social elites, but also developed
mechanisms that defended popular rights (from elements of democracy in
Greece to the institution of republican government and later the tribunate in
Rome). rough the history of ancient, medieval, early modern tithe societies
in the west, the state form tended towards a balance between something like
near (but never wholly) absolute state power to structures that implicitly or
explicitly limited state power (such as, famously, the Magna Carta). Certainly
the most absolute, or concentrated state power forms, tended to act in the
interest of social elites and that meant the protection of private property.
Explicit private property rights were codified and were the subject of elite
justification in philosophy.
It was popular struggle in combination with intellectual developments
that lead to the development of human rights. In the late eighteenth century,
events in the United States of America, in France, and in Haiti synthesized
enlightenment ideals and popular political power, which came to be expressed
in discursive notions of ‘rights’, the rights of ‘man’, as opposed to property
rights. It is striking that slowly, the industrialization that developed in
conjunction with this discourse gave the state greater tools to concentrate
power, culminating in early forms of totalitarianism in the first half of the
twentieth century. At the same time, the anti-slavery movement in the early
nineteenth century, the womens rights (suragette) movements in the later
 
     
nineteenth and early twentieth century, and worker’s movements through the
nineteenth and twentieth century all deployed the language of ‘rights’ as a
tool to achieve their multi-variant popular objectives. Emerging from these
social movements and in response to the horrors of fascist totalitarianism the
movement to codify ‘human rights’ as they became known, lead to the famous
 United Nations’ Universal Declaration of Human Rights.
e Universal Declaration itself was a product of its high modernist era,
reflecting an expanded notion of the ‘human’ and a notion that state power
had to be limited in a manner that expressed such ‘humanity’. Of course,
this schematic theorization of the history of states and rights does appalling
disservice to the texture of history, and does not represent anything like a
fully enunciated theory of the state (or even the few centuries old capitalist
state). But it has the merit of illustrating the popular base of human rights
discourse and the continuing necessity of abstract, universalizing notions
of human rights in the face of the newer technologies of state power and
the newest state sponsored juridical fictions that both deny basic human
rights to some (labeled ‘terrorists’) while pretending to forcibly extend basic
human rights (‘freedom’ and ‘democracy’) to others. It is also my hope that
the narrative makes clear that the movement for human rights has not been
a slow, liberalizing, progressive, inevitable triumphal procession. Rather, if the
rights-domination oscillation characterizes political society, in eect we are
witnessing new institutions, new legal structures, new discourses, that replay
ancient political contests.
I have fictioned a master narrative history of the world primarily to make
this point: the  Universal Declaration of Human Rights has not and will
not be the final stopping point on the path to social justice. Nor will the
Canadian Charter of Rights and Freedoms. With this backdrop, I turn to
the specificity of Aboriginal rights.
iv. Theoretical Histories: Customary and Aboriginal Rights
It is of more than passing interest that among Karl Marx’s earliest writings
is a strong political and legal defense of the rights of peasants to gather
and use deadwood, in which he deploys the phrase ‘from time immemorial’
(see ). Marx was not entering a marginal political sideshow in making
these arguments (which he himself later saw as a major turning point in his
intellectual development) but rather joining in at the tail end of a critical
eighteenth and nineteenth century popular struggle for what was called
‘customary’ rights. In the English language, the historian of customary rights
is E.P. ompson, whose Customs in Common () may ultimately eclipse
his other great study and certainly should be read by any serious students
of indigenous rights. ompson emphasizes that “the origin of common
 

rights in royal or feudal grants is a fiction” (). Rather, common rights
derive from the actual practices of people, whether in walking a particular
circuit to demonstrate their right of passage or to traverse the passage itself,
or in engaging in centuries-old subsistence activities: “perhaps in the first six
decades of the eighteenth century disputes about deer and other game, about
fishing rights, about timber, about the exploitation of quarries, sand pits and
peat, became more frequent and more angry” ().
What created these disputes was the totalizing spread of a quite dierent
regime of property: “the concept of exclusive property in land, as a norm to
which other practices must be adjusted, was now extending across the whole
globe, like a coinage reducing all things to a common measure” (). In the
area of customary rights (and Aboriginal rights), it is the state as an agent of
totalisation that matters. By this I refer to the whole painstaking historical
process of reconfiguring notions of space, time, and subjectivity in the modern
period to accord with the new modalities for producing wealth: totalisation:
forms of practice, law and the power to compel observance of these that
spread across the globe over a period of a mere few centuries, and continue to
spread both geographically and culturally. at spread is resisted, in the past
and present, and the doctrines of customary and Aboriginal rights are one of
the baselines of such resistance. To a certain degree, the universal doctrine of
human rights is complicit with this spread and in part explains some of the
resistance to it. e British recognition of customary rights, through common
law, is surely one of the grounds upon which, with the spread of British
hegemony worldwide, the doctrine of Aboriginal rights develops.
Two small contrasting features of human rights and Aboriginal rights may
be worthy of notice, here. On the one hand, human rights seem to develop,
thrive, and be a site of struggle in the emerging urban contexts associated with
cosmopolitanism and the liberal enlightenment. On the other hand, Aboriginal
rights like customary rights seem to be situated most often or tendentially in
rural contexts, where ownership of the means of production for subsistence
purposes remains viable. Secondly, respect for human rights oscillates with
a state power that at its extremity can be characterized as ‘totalitarian’ (see
Arendt ), by which is meant a nearly all pervasive exercise of state power.
Customary and Aboriginal rights confront a state that serves the interest of
totalisation, by which is meant a state that works assiduously and relentlessly
to establish cultural preconditions for capital accumulation. ese two state
forms have historically not frequently been co-existent, but when they are a
whole new ‘state of exception may emerge, threatening all forms of rights even
as such state forms may deploy in Orwellian manner the language of rights.
In this view, Aboriginal rights are the customary rights of indigenous
peoples. ere is a performative element to Aboriginal rights, inasmuch as
 
     
they are grounded in the ‘embodied practices’ (see Taylor ) of indigenous
peoples. is is one of the features foregrounded in the Van der Peet decision,
discussed above.
Historically, Aboriginal rights in Canada emerge from the struggle of
indigenous peoples. e Royal Proclamation of  itself was a response to
Pontiac’s famous resistance a few years earlier (see Hall ). While in the
nineteenth century ‘Indian rights’ as they were then called were clearly a part
of the British North American, and later Canadian, legal landscape, after
the Williams treaty in  Aboriginal rights were more often noted in the
breach rather than through respect. is culminated in the “Statement of the
Government of Canada on Indian Policy,  or now infamous ‘white paper’,
which in the name of equality (a human right) sought to remove all legal
distinctions between ‘Indians’ and other Canadians. In the intensive struggle
to prevent implementation of the white paper the term citizen’s plus’ (used in
the early sixties by government ocials and with a bit more prominence by
H.B. Hawthorn in his mid-sixties report A Survey of the Contemporary Indians
of Canada) was deployed to emphasize that indigenous peoples in Canada
were Canadian citizens, had the human and citizenship rights of Canadian
citizens, but were also the bearers of something else, an un-named ‘plus’, that
had to be acknowledged. e ‘plus’ would come to be known as Aboriginal
rights. It was in this period of confusion and conflict that the Drybones and
Lavell/Bedard decisions were rendered; so too, the decision in Calder, which
marks a significant tipping point towards recognition of Aboriginal rights,
even if based primarily on title. e main point is that in Canada, a deliberate
attempt to—ruthlessly—extend human rights in the form of equality was
placed in direct contradiction to the armative, dierential rights doctrine
embodied in Aboriginal rights. It is ironic, years later, to see the United
Nations Declaration on the Rights of Indigenous Peoples characterized as
an extension of the principle of human rights, an issue to be discussed below.
Over the next decade legal and political attention in Canada slowly turned
to questions around Aboriginal rights, prompted in part by their use by Dene
in the Mackenzie Valley pipeline conflict and by Cree and Inuit in the James
Bay and northern Québec conflicts over hydro electric production (and the
Cree in northern Manitoba dealing with similar issues; on the Dene see
Watkins , on Cree in Quebec see Richardson , and Cree in Manitoba
see Chodkeiwitz and Brown ). e original draft of the constitution that
then prime minister Trudeau wanted to repatriate contained no recogni-
tion of Aboriginal rights, but after another intensive struggle, including a
First Nations lobbying eort in Westminster, section , which in the act
follows after the Charter of Rights and Freedoms, recognizing and arming
Aboriginal and treaty rights, as well as section  which limits the exercise
 

of the Charter over Aboriginal rights, were included. Aboriginal rights were
again a recognized, codified part of the political and legal landscape, though
to what eect remains uncertain.
v. The Confusion, Again
Even as careful, helpful and astute an observer as the secretary general of
Amnesty International Canada, Alex Neve, in a  speech at the University
of Regina making a very strong argument in favour of the Declaration, tends
to confuse the issue of the relation between indigenous rights and human
rights. His analysis is historically and politically compelling and valuable, while
at the same time it is conceptually weak. I want to engage a close reading of
his paper to demonstrate this issue, of critical importance. It should be noted,
though, that Amnesty International is a human rights based organization with
very little ‘track record’ respecting Aboriginal rights issues; if I am critical of
Neve it is as one of many, many examples I could draw upon of those that
confuse human and Aboriginal rights.
Neve begins an extensive and very useful discussion of the twenty-year
history of the drafting of the Declaration, itself prefaced by a discussion of
the Universal Declaration of Human Rights and other human rights declara-
tions, by mentioning in three places reasons why a declaration on the rights
of indigenous peoples is needed. ese are, in the first instance,governments
also recognized that some rights need extra attention, dierent attention or
more detailed attention. at may be because of the heightened vulnerability
of a particular group to serious human rights violations, such as women or
children. Or it may be because of the gravity or the insidious nature of a
particular kind of human rights violations, such as racism or torture”. is
all deals with human rights violations that may happen to indigenous people
as well as others. Secondly, again using the phrase ‘governments recognized’
which leans towards the notion that rights emerge from liberal benevolence,
Neve states: “governments recognized that it was necessary to go further than
the overarching human rights protections of the  Charter, the Universal
Declaration and the two Covenants. ey realized that the extent, longevity
and entrenched nature of certain types of human rights violations is such
that very specific and direct attention is inescapable.” Here, again, ‘human
rights violations’ is at issue, in this case the ‘extent, longevity and entrenched
nature’ of those being the specific issue. Critically, Neve situates the rights
of indigenous peoples in subsidiary relation to ‘overarching’ human rights.
irdly and finally, Neve states:
And universally they are among the most marginalized and repressed
members of the societies in which they live—subject to extreme levels
 
     
of violence, violence that has possibly reached the level of genocide in
some countries over the decades and centuries; living in extreme poverty;
coping with relentless encroachment upon and theft of their traditional
lands; and facing a range of sometimes brutal, often insidious laws,
policies and practices aimed at suppressing and eradicating Indigenous
culture, language and way of life.
Again, most of this specifically details human rights abuses; at the very end
he tacks on the notion of “often insidious laws, policies and practices aimed
at suppressing and eradicating Indigenous culture, language and way of life.”
Culture, the basis of what makes indigenous peoples distinct, belatedly makes
it into the picture.
is conceptual confusion, and emphasis on the human rights of indigenous
people with a small appreciation for the notion of cultural distinctiveness as
an underlying element of Aboriginal rights, leads Neve down a path that
ultimately vitiates much of his concern for indigenous peoples. Hence, for
example, “that there was early recognition that the rights of Indigenous
peoples merited special attention within the  human rights system: that the
nature, scale and severity of the violations were such that it was not enough
to rely only on the universal guarantees of equality and justice contained in
the Charter, Declaration and the two Covenants (emphasis added).” Without
a notion of the particularity of Aboriginal rights, Neve never notices that
universal human rights may often provide the explicit justification for
trumping Aboriginal rights, as happened in the struggle over the white paper
in Canada. By situating Aboriginal rights ‘within’ the United Nations human
rights system, the  eectively ensures that Aboriginal rights take second
place: that universality will always hold the deciding cards over cultural
dierence. is is a problem with the Declaration itself, and one that Neve
never addresses, but a problem to which we will shortly turn our attention.
Neve is clearly not the only one to turn a blind eye to the issue: Neve notes
approvingly that “Australia’s Minister of Indigenous Aairs, Jenny Macklin,
called the Declaration a ‘landmark document that reflects and pays homage
to the unique place of Indigenous people and their entitlement to all human
rights as recognized in international law.’” e entitlement of indigenous
people to ‘all human rights’ is not the question of Aboriginal rights.
Interestingly, Neve refers in three places in his article to the ‘aspirational’
nature of the Declaration, for example emphasizing at one point “the
aspiration[al], non-binding nature of the Declaration.” In fact, the Declara-
tion on the Rights of Indigenous People never uses the term ‘aspirational’. It
does ‘proclaim’ the Declaration as a “standard of achievement to be pursued
in a spirit of partnership and mutual respect (p ). Whether a ‘standard
 

of achievement to be pursued’ is the same as an ‘aspirational, non-binding’
statement is open to interpretation. He notes that in most instances declara-
tions get turned into more binding documents called ‘covenants’. However, it
is striking that months after his speech, when Canada finally responded to
the pressure he and many others brought to bear on it for not adopting the
Declaration, it did so as an ‘aspirational’ document rather than as a ‘standard
of achievement to be pursued’. Neve in eect let the Canadian government
o the hook even before it was hooked!
vi. The United Nations Declaration on the Rights of Indigenous Peoples
It is striking that the document is itself called the United Nations Declara-
tion on the Rights of Indigenous Peoples. Syntactically, this leaves open the
question of whether it is arming indigenous (Aboriginal) rights, or the
human rights of indigenous peoples. “e rights of indigenous peoples” as
a phrase may be used to characterize either or both of these forms of rights.
In this instance, as articulated through the Declaration itself, it means both.
e United Nations Declaration on the Rights of Indigenous Peoples, as it
is introduced in the English-language text, states that indigenous people are
“among the most impoverished, marginalized and frequently victimized people
in the world. is universal human rights instrument is celebrated globally as
a symbol of triumph and hope.” roughout the introductory material and the
document itself, it is positioned as an extension of the doctrine of universal
human rights, rather than a document of equal or counterbalancing weight.
For example, the statement of Victoria Tauli-Corpuz, the Chair of the 
Permanent Forum on Indigenous Issues, on the occasion of the adoption of
the Declaration, declares that the moment “marks a historical milestone in
its long history of developing and establishing international human rights
standards.” is confusion is also reflected in many of the ‘supportive state-
ments’ appended to the Declaration.
Perhaps another way I can make the issue clear is with reference to the
Aboriginal rights legal structure, let’s call it a topography, embedded in the
constitution of Canada. ere, it is recognized that the Charter of Rights and
Freedoms could be interpreted in a manner that would diminish Aboriginal
rights. Section  of the Charter therefore states that “the guarantee of
this Charter of certain rights and freedoms shall not be construed so as to
abrogate or derogate from any Aboriginal, treaty or other rights or freedoms
that pertain to the Aboriginal peoples of Canada.” Philosophically, this is a
substantial step ahead of the Declaration, because it reflects the notion that
universalist equality rights can be deployed in a way that would diminish
the force of Aboriginal rights. In fact, in the Corbiere () case, involving
whether o reserve Indians could run for oce and vote in on-reserve elections,
 
     
which has been the only Supreme Court of Canada case to pay significant
attention to section , a significant minority of the court suggest that the
canons of interpretation of section  are such as to give it even more scope
for application than the actual Aboriginal rights recognition clause that is
more frequently invoked, section . ere is no such a legal topography at
work in the  Declaration. e Universal Declaration includes no clauses
limiting its application over culturally distinct indigenous peoples.
Instead, the  insists that ‘the rights of indigenous peoples’ are an exten-
sion of universal human rights, and is explicit that the newly gained rights must
be brought within the scope of the older doctrine. e three sections of article
 in the Declaration make this clear. Section establishes that “nothing in
this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary
to the Charter of the United Nations” (); section of that article states that
“in the exercise of the rights enunciated in the present Declaration, human
rights and fundamental freedoms of all shall be respected (); and section
makes it clear that “the provisions set forth in this Declaration shall be
interpreted in accordance with the principles of justice, democracy, respect
for human rights, equality, non-discrimination, good governance and good
faith” (). e notion that ‘the rights of indigenous peoples’, inasmuch as
they are Aboriginal rights, might be seen as forms of positive discrimination,
is therefore entirely absent from the overall topography of the Declaration.
Also absent is the notion that human rights, especially equality rights, may
sometimes be deployed to limit or render meaningless human rights, or any
notion that Aboriginal rights might be viewed specifically as a counterforce
to human rights.
is is not to say that the Declaration is not a worthy achievement; nor to
imply that it should not be adopted and implemented; nor to assume it will
not be of any value in the struggle of indigenous peoples. Indigenous peoples
do need to have their human rights respected. But, as indigenous peoples, for
their Aboriginal rights to have any value in the struggle to help them retain
their distinctive cultures, they need a version of Aboriginal rights that cannot
be ‘trumped’ by universalisms. e Declaration is a flawed tool for respecting
and arming global Aboriginal rights.
vii. Reading The United Nations Declaration On
The Rights Of Indigenous Peoples
In my reading of the document, the human rights of indigenous peoples are
the clear subject of ten articles (, , , , , , , ,  and ). Articles
that in some way or other deal with culture, tradition, language or indig-
enous institutions and laws, and may therefore be interpreted as relating to
 

Aboriginal rights as I have characterized them following the logic of Canadian
jurisprudence, are the sole subject of twenty articles (, , , , , , , , ,
, , , , , , , , ,  and ). An additional nine articles pertain
to both human rights of indigenous peoples and Aboriginal rights (, , ,
, , , ,  and ). Finally, a full seven articles deal with land rights and
Aboriginal title, which again could be seen as belonging to either form of
right, or even to property rights (, , , , ,  and ). Note the way in
which these issues are mixed; the authors of the Declaration had no sense of
the ways in which some of the first set of rights might be deployed to limit
the second set. ere is no coherent notion that these forms of rights should
be grouped as sets.
An example is needed to make this issue clear. Article , which I have
situated in the category of human rights, deals broadly with the economic
well being of indigenous peoples. It makes provision 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.
. States shall take eective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and
social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and persons
with disabilities.
e Eurocentric nature of the language being deployed here demands some
attention: the United Nations document does not invoke any greeting or
thanksgiving in any indigenous language. It does use ‘inter alia’ (among
other things), thus giving additional attention to Latin, a dead but hardly
uninfluential language (I note that I myself on rare but significant occasions
have been known to resort to Latin numerals). It does not develop or rely on
a single concept from within a single indigenous worldview. Since it cannot
decide which one to use, it uses none; this is a travesty.
Of particular concern is the way this list in Article  (vocational training!)
and the standards it implies could patently justify, in the name of the rights of
indigenous peoples, state interventions: building a hydro electric 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. While there are other clauses that mitigate against these eects,
by placing the document as a whole within and underneath the logic of
 
     
overarching, universal human rights, where there is a conflict it appears clear
that indigenous human rights will over ride Aboriginal rights, to the likely
detriment of indigenous people. is latter is likely since it is ‘states’ that will
tend to implement the human rights.
State involvement is not a question of no importance here. e Declaration
contains a number of clauses that deal with self determination, including four
in a row at one point. ese are:
Article : Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
Article : Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to their
internal and local aairs, as well as ways and means for financing their
autonomous functions.
Article : Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.
Article : Every indigenous individual has the right to a nationality.
What is important is what is missing from this list. Indigenous people
do not have a right to sovereignty. Further, they only have the “right to
autonomy or self government in matters relating to their internal and local
aairs.” Interestingly, articles  to  begin with a first clause, “indigenous
people have the right,” and add a second clause, “states shall” (articles , ,
, , ,  and  use the same formal structure; article  and  use the
form in separate articles). e Declaration posits a bifurcated world, with
indigenous people on one side as rights holders and the state on the other
as duty bound. It is clear that forms of self government are to exist within
the existing state system. Although the Declaration places clear demands on
states vis a vis their practices respecting indigenous peoples, it also enforces
the notion that indigenous people are ultimately under the aegis or authority
of existing national states, and there they must stay. Even aspirationally.
is is, again, not to say that the Declaration is of no positive political
and legal value, even in the Canadian context. ere are twenty clauses that
specify Aboriginal rights, and these are not a part of the Canadian, or many
other, legal/political contexts. For example, as well as Article  guaranteeing
 

that the rights of indigenous peoples are available equally to indigenous male
and female persons, a clause in Article  mandates that “States shall take
measures, in conjunction with indigenous peoples, to ensure that indigenous
women and children enjoy the full protection and guarantees against all forms
of violence and discrimination.” Another article, , specifies rights to control
citizenship among indigenous peoples as follows:
. Indigenous peoples have the right to determine their own identity or
membership in accordance with their customs and traditions. is does
not impair the right of indigenous individuals to obtain citizenship of
the States in which they live.
. Indigenous peoples have the right to determine the structures and
to select the membership of their institutions in accordance with their
own procedures.
Both of these, and many others of the twenty articles that deal with Aboriginal
rights, could be important tools in litigations or in social justice struggles
in Canada, where the state through the Indian Act still ultimately controls
the legal status of first nations citizens, and where gendered violence against
Aboriginal women remains a pathological and deeply repulsive feature of
society.
viii. A Conceptual Structure
With this as background, it should be clear that some conceptual clarity is
demanded on issues pertaining to Aboriginal rights, particularly in order
to understand how they can come into conflict with human rights. Human
rights, citizen rights and property rights operate on one plateau of rights
discourse. Aboriginal rights, customary rights, and treaty rights operate on
another. Indigenous human rights can be specified with reference to both,
though they belong in my view with the first set, as an application.
On one plateau, then, are the set of rights that may be enjoyed by
individuals by virtue of their citizenship, their humanity and their wealth.
Citizenship rights are the national rights enjoyed by people and individuals
through being entitled members of a nation. ese may include rights to
participate in that nation’s political system and rights to be protected, inter-
nationally, by representatives of their nation. ese rights vary dramatically,
as dierent nations clearly have dierent abilities to protect their citizens and
have dierent status in the global hierarchy of national polities. ese were
the forms of rights that Edmund Burke famously preferred to ‘the rights of
man’ being proclaimed by the revolutionaries in eighteenth century France.
 
     
Human rights are rights and freedoms that belong to all peoples inasmuch
as they are human. Human rights involve equality rights, individual freedoms,
and rights to belong to cultural and national collectivities. National collectivi-
ties may, and often do, enshrine human rights as an aspect of the rights of its
citizens, as the Canadian Charter of Rights and Freedoms example suggests.
Property rights may be a form of human rights and/or a form of citizenship
rights, and speak to security of ownership of property. e doctrine of property
rights has tended to protect the wealthy of the world as individuals, but it can
pertain to collectives in the forms of intellectual property, cultural property,
and Aboriginal title.
Aboriginal rights are rights that pertain to a specific group of people,
frequently the prior occupants of a territory in pre-colonial times, and
therefore are established on a whole distinct plateau of rights: they do not
belong to everyone. Aboriginal rights exist in order to acknowledge the
cultural distinctiveness of prior occupants or other indigenous peoples. ey
therefore tend to be collective, and particular. ey may be seen as a variety
of customary rights, tied as they are to the collective cultural traditions and
practices of specific indigenous peoples. Any peoples who have engaged in a
practice for such a lengthy period that they have earned a right to continue
the practice may enjoy customary rights. Treaty rights are any rights that may
be conferred through negotiations between a specific indigenous peoples and
a specific nation state.
e human rights of indigenous peoples involve the application of human
rights to indigenous individuals. ey belong on the territory of human
rights, but involve the people associated with Aboriginal rights. Obviously,
indigenous peoples can have their rights as human beings violated. Although
in eect the Universal Declaration of Human Rights should be sucient to
protect indigenous peoples, the reasons Alex Neve sets out for the Declaration
amount largely to a justification of elaborating and extending human rights
specifically to indigenous peoples. But it must be clear by now that this is a
dierent ethical, legal and political issue than the issue of Aboriginal rights.
Aboriginal rights exist for the protection of the cultural distinctiveness of
indigenous peoples, in the recognition that such distinctiveness may be of value
in a rapidly changing world. ey therefore pull in a dierent direction than
human rights. Human rights move towards what is common in humanity and
are an expression of some basic ideas thought to be of universal value. Aboriginal
rights move in the direction of what characterizes specific groups of people and
of what defines them as distinct. e actual actions protected by Aboriginal
rights are particular and vary from group to group, perhaps from time to time.
Human rights work to abstract from particular actions and protect a broader
principle embedded in the action (for example, freedom of speech).
 

e problem that emerges is that human rights may be used to over ride
Aboriginal rights. A young man is taken from his home to an island, where he
is left isolated for several days as a first stage of initiation into a dance society.
His human rights were clearly violated, in the interests of the Aboriginal rights
of his nation. e two, Aboriginal and human rights, do not sit comfortably
side by side. e United Nations structure establishes a hierarchy, with human
rights on the ascendance. e rights of indigenous peoples are positioned as
an extension of human rights. ey are not.
e particular cultures of gathering and hunting peoples, one specific
form of indigenous peoples, often show great respect for the ‘autonomy of
the individual’. In fact, since property rights are less paramount, oftentimes
gatherers and hunters enacted cultural mechanisms that showed greater
respect for equality and freedom than the most ‘advanced’ liberal democra-
cies of our own time. Yet, still bound by the notion that ‘we’, the ‘advanced’,
‘progressive’, ‘developed’ ‘west’ know more than ‘they’, ‘we’ insist on imposing
our hierarchies in the name of equality and freedom. To repeat: we insist on
imposing our hierarchies in the name of equality and freedom: this, in part,
is what the United Nations Declaration on the Rights of Indigenous Peoples
amounts to: our notion of human becomes the notion of human, our notion
of freedom and equality becomes the notion of freedom and equality, our
notion of rights is the only notion possible.
ix. From The Ground Up
Just as human rights exist more in the breach than in the enforcement, many
years after the Universal Declaration of Human Rights was promulgated and
even after the covenants meant to give it force were passed, so too Aboriginal
rights continue to be violated on a daily basis. ey are violated here in Canada,
part of the ‘advanced’, ‘developed’,progressive’ social world as much as they
are in many other parts of the world. When the United States, at the pinnacle
of the world hierarchy, feels free to entirely violate basic human rights in the
interest of its war on terror, it is dicult to feel optimistic about global compli-
ance in human rights instruments. It is even more dicult to be optimistic
about the Aboriginal rights provisions in a document as compromised as the
United Nations Declaration on the Rights of Indigenous Peoples.
Last August, , I was in the Mackenzie Mountains with Shutagot’ine,
mountain Dene from the village of Tulita. My students and I discussed and
argued about the status and role of Dene women in the hunting camp. We
negotiated our own role and status among the generations of hunters present
with us. We went on crazy rides on all terrain vehicles across rivers and up
riverbeds into the foothills and past the trees high onto mountains, in search
of caribou. We traded stories and images, and borrowed rifles and lent fishing
 
     
rods and helped each other in the daily routines of a work that is somehow
more like leisure and a leisure that is somehow more like work than we imag-
ined. We drank water taken straight from the lake and ate fish from the nets
or caribou from our hunts. We kept watch for moose and went on dusk and
dawn excursions to see if we could find them out in the open. We learned a
little bit about what it is to be Dene. And, perhaps, it’s true, in learning that
we learned a little bit more about what it is to be human.
Aboriginal rights get asserted this way, in the practice of indigenous culture.
ey will, in the end, not be handed down from on high as a gift from the
king or the United Nations (one of E.P. ompsons points about customary
rights). ey are won in blockades, in occupations, in marches and walks,
through patience and practices, through petitions, through determination
and the strength of indigenous nations and their allies. Critically, Aboriginal
rights are achieved through the enactment of cultural practices, the repetition
of activities that were engaged in albeit with dierent technologies, economies
and social contexts, many many years ago. ese practices, paradoxically, may
also have something to teach about such cherished human rights as equality
and freedom. But when we arrogantly impose our universality we blind
ourselves to the possibility of learning, even learning what it is to be human.
e Declaration presumes indigenous peoples as victims and as weak.
In the various rationales and justifications, it always positions indigenous
peoples as in need of benevolent support. Nowhere does it recognize the
strong contribution that indigenous peoples as indigenous peoples have to
make to the world, coming closest but adopting instead in its preamble the
phrase: “all peoples contribute to the diversity and richness of civilizations
and cultures, which constitute the common heritage of humankind.” All
peoples, including indigenous peoples, have a contribution to make: there is
nothing especially valuable about indigenous knowledges and cultures. e
preamble deploys this, too, as a critical fiction. at ‘we’ in the ‘advanced’,
‘developed’, ‘progressive’ world might actually have something to learn from
indigenous peoples, might have something to gain by living side by side in
peace with thriving indigenous cultures, appears unthinkable among the too
many too smart, jurists of universalism. Nowhere does the United Nations
appear to imagine pimatisiwin, the good life, which may be found in Andean
and Mackenzie mountain ranges. Until they can, their declarations will float
lightly on currents of rising air, never finding the ground beneath their feet.
  

Sources
Arendt, Hannah. The Origins of Totalitarianism. New York: Harcourt Brace Jovanovich,
.
Agamben, Giorgio. Homo Sacer. Trans Daniel Heller-Roazen. Stanford: Stanford
University Press, .
Asch, Michael. Home and Native Land. Toronto; Methuen, .
Asch, Michael. Ed. Aboriginal and Treaty Rights in Canada. Vancouver; University of
British Columbia Press, .
Chodkiewicz, Jean Luc and Jennifer Brown. Eds. First Nations and Hydroelectric Develop-
ment in Northern Manitoba. Winnipeg: e Centre for Rupertsland Studies, .
Cumming, Peter A. and Neil Mickenberg. Native Rights in Canada. Toronto: e
General Press, .
Hall, Anthony. The American Empire and the Fourth World. Montreal: Mcgill-Queen’s
University Press, .
Hawthorne, H.B. A Survey of the Contemporary Indians of Canada. Vols. Ottawa:
Queen’s Printer, -.
Kulchyski, Peter. Editor. Unjust Relations: Aboriginal Rights in Canadian Courts. Toronto;
Oxford University Press, .
______. Like the Sound of a Drum: Aboriginal Cultural Politics in Denendeh and Nunavut.
Winnipeg; Univerity of Manitoba Press, .
Marx, K. and F. Engels.
. Proceedings of the Sixth Rhine Province Assembly. ird
Article Debates on the Law on efts of Wood. Karl Marx Fredrich Engels Collected
Works; \Vol.
. eds. N. Karamanova, M. Lopukhina, V. Schnittke, L. Zubrilova. New
York: International Publishers.
Neve, Alex, Speech at the University of Regina, September, .
Richardson, Boyce. Strangers Devour the Land. New York: Knopf, .
Supreme Court of Canada, R v Drybones ()  .
Supreme Court of Canada, Attorney General of Canada v Lavell/ Isaac v Bedard ()
 .
Supreme Court of Canada, Calder v Attorney General of British Columbia (
) 
.
Supreme Court of Canada, Guerin v The Queen ()  .
Supreme Court of Canada , R. v Sparrow ()  .
Supreme Court of Canada, R. v Sioui ()  .
Supreme Court of Canada, R v Van Der Peet ()  .
Supreme Court of Canada, Corbiere v Canada ()  .
 
     
Taylor, Diana. The Archive and the Repertoire. Durham: Duke University Press, .
ompson, E.P. Customs in Common. New York: e New Press, .
Watkins, Mel. Ed. Dene Nation. Toronto: University of Toronto Press, .
Wolf, Eric R. Europe and the People Without History. Berkeley: University of California
Press, .
... In the context of the rights of Indigenous peoples in Canada as in many other settler-colonial states, "rights" as individualized entitlements stem from a liberal, egalitarian mode of thinking with foundations in colonialism, that can serve to obscure discussions of collective rights or Indigenous principles of responsibility (Kulchyski, 2013;Laliberté, 2015). In this paper, we use the term "settler-colonial state" to refer, in general, to countries that have come into being through the colonization and occupation of Indigenous peoples' land. ...
... Senese and Wilson (2013) examine urban Indigenous community members' perspectives on how the recognitionor lack thereofof Indigenous rights impacts their health in Toronto. There are important distinctions, as well as important areas of overlap, between human rights and legal rights when it comes to Indigenous health (Kulchyski, 2013). ...
Article
The political-legal discourse of Indigenous rights continues to be separated from discussions of health care services in geographic scholarship, due to the ways in which political-legal, settler-colonial definitions of rights fail to take Indigenous understandings into account, as well as a distrust on the part of scholars of the limited and contingent notion of “rights.” While Indigenous rights, inherently tied in Canada to recognition by the settler-colonial state, have limited application in achieving social justice or decolonization for Indigenous peoples, we argue that Indigenous rights can be used as a complementary discourse to Indigenous resurgence, within broader discourses of Indigenous justice, to lend legal and political weight to arguments for cultural safety and human rights in health care. We draw on a study conducted with 50 Indigenous community members and 15 health services professionals in the northern city of Prince George, Canada, to elucidate how Indigenous peoples’ experiences in health care settings may be improved by giving attention to rights discourse and removing the geographic and identity-based limitations of Indigenous rights to health care in Canada.
... not finally be 'human rights' per se. See PeterKulchyski (2013).5I do not mean to single Macdonald and Basu out, and my remarks should not be taken as a general criticism of their otherwise very fine essay collection. ...
Article
Full-text available
This article explains the value of assemblage theory to making sense of a museum like the Canadian Museum for Human Rights (CMHR), which has struggled with the formidable challenge of comparatively representing human rights in controversial cultural and historical contexts. I argue that “assemblage thinking” permits us to appreciate more richly the way in which the expressive power of the CMHR arises from the dynamic interaction/intersection of overlapping clusters of objects, spaces, ideologies, memories, feelings, structures, histories, and experiences. Understood as “assemblages,” these clusters in important (but not all) ways lie beyond the scope of formal agency such as that exercised by curators and museum administrators. Accordingly, we must understand museums generally, and the CMHR particularly, as fundamentally unable guarantee the integrity and perdurability of their/its own structures and meanings, and recognize these meanings (and a museum’s identity) as irreducibly open-ended and provisional.
... While UNDRIP may be recognized as the most comprehensive Indigenous rights instrument available (Corntassel & Bryce, 2012), there are differing definitions and strategies within the rights-based discourse. Kulchyski (2013) argues that Indigenous rights-based on peoples' relationships to land, practised through culture-are distinct from and more powerful than universal human rights as tools in the struggles of Indigenous peoples. ...
Article
The Turtle Lodge International Centre for Indigenous Education and Wellness in Sagkeeng First Nation, Manitoba, is leading the way in exemplifying and cultivating sustainable self-determination. This is a holistic concept and process that recognizes the central role that land and culture play in self-determination, and the responsibility to pass these teachings on to future generations. This article links theory and practice in the emerging scholarship on sustainable self-determination and examines how Turtle Lodge embodies sustainable self-determination through traditional governance and laws, respectful and reciprocal relationships, cultivation of cultural revitalization and community well-being, and efforts to inspire earth guardianship. Turtle Lodge’s experience underscores the importance of understanding sustainable self-determination as a flexible, community-based process. This case study fits within recent calls in the literature for a shift from a rights-based to responsibility-based self-determination discourse and demonstrates some of the challenges and lessons learned that might support other communities pursuing similar actions.
... Canadian Constitutional law is founded on treaty agreements that oblige both parties to maintain respectful relations between these distinct legal systems [12]. Yet there have been ongoing tensions between Constitutional law and Indigenous rights throughout the history of Canadian legal institutions [11,13,14], with many conflicts resulting from energy project proposals and politics [15]. A just energy system can be understood as "one that is safe, reliable, fair, affordable, and also sustainable for current and future generations and the natural world. ...
Article
Full-text available
This paper investigates the values and priorities reflected in a Canadian pipeline review: The National Energy Board (NEB) decision on Line 9. Theories of energy justice guided analysis of evidence presented at NEB hearings, the NEB’s explanation of its decision, and a Supreme Court challenge. We find that several aspects of energy justice were weak in the NEB process. First, a project-specific scope obstructed the pursuit of equity within and between generations: the pipeline’s contributions to climate change, impacts of the oil sands, and cumulative encroachment on Indigenous lands were excluded from review. Second, the NEB created a hierarchy of knowledge: it considered evidence of potential spill impacts as hypothetical while accepting as fact the proponent’s claim that it could prevent and manage spills. Third, recognition of diversity remained elusive: Indigenous nations’ dissatisfaction with the process challenged the NEB’s interpretation of meaningful consultation and procedural fairness. To address the challenges of climate change and reconciliation between Indigenous and settler nations, it is crucial to identify which kinds of evidence decision-makers recognize as valid and which they exclude. Ideas from energy justice can help support actions to improve the public acceptability of energy decisions, as well as to foster greater Indigenous autonomy.
... Los humanos con cosmologías distintas pueden ser tan diferentes como humanos y otras especies. Diferentes modos de producción ponen en escena diferentes ontologías de lugar, tiempo, lo sacro y las relaciones que importan para componer identidades colectivas (Coulthard, 2014;Kulchyski, 2012). Diferentes supuestos sobre lo que es, cómo, quién es cómo, están insertos en la lengua, además de otras prácticas entre las que se cuentan el arte y la narración. ...
... Other treaties were signed with Indigenous peoples, including the Upper Canada Treaties (1762-1862) and the Douglas (Vancouver Island) Treaties (1850-1854). The treaty making process continued into the present, including the James Bay and Northern Québec agreement of the mid-1970s, the Western Arctic agreement with the Inuvialuit in the mid-1980s, and the Nisga'a Treaty in British Columbia in 2000(Kulchyski 2013).Content courtesy of Springer Nature, terms of use apply. Rights reserved. ...
Article
Full-text available
Canada is both a capitalist and colonial society, one founded on the seizing of Indigenous lands for capitalist purposes. In the process, a variety of “crimes of the powerful” were committed, including the theft of Indigenous lands, the forcible confinement of Indigenous people onto reserves, and the subjection of Indigenous children to physical and sexual assaults via the residential school system. In more recent times, the corporate quest for extractive resources has created further harms for Indigenous communities. The lives of too many Indigenous people in Canada are now contoured by complex poverty, Indigenous children are over-represented in the child welfare system, and Indigenous adults are over-incarcerated in prisons and jails. Using a “crime” lens, this paper brings an awareness of Canada as a capitalist and colonial society—conceptualized here as “corporate colonialism”—to the foreground. In the process, the various manifestations of the “crimes of the powerful” against the Indigenous peoples of Canada are exposed.
... In the last decade, scholars also focused on indigenous communication as a right (Hernández, 2013). Before 2005, many studies had addressed the economic, social, and cultural rights of indigenous people as matters of poverty or marginalization, but this approach progressively tended to emphasize the ethnic differentiation of rights, that is, "embodied in Aboriginal Rights," and goes beyond the individualistic UN principles of human rights (Kulchyski, 2011). This recurring topic is relevant since it indicates that policymaking and regulation with respect to indigenous media and communication deserves exceptional treatment, such as a measure of affirmative action based on restorative justice, historical claims, cultural preservation, and collective ownership. ...
Article
Full-text available
This article synthesizes the theoretical developments concerning Latin American indigenous communication formulated in the last decade (2005-2015). By conducting a review of the main theoretical frameworks that have deepened the issue, we observe a gradual progression from the dominance of external views to the emergence of indigenous people’s own perspectives. We propose four analytical theoretical approaches that depict continuities (media and information and communication technology [ICT] appropriation; policies and regulation) and discontinuities (indigenous media; communication from Buen Vivir) regarding traditional Latin American frameworks. We also discuss the limitations of the original literature on this topic, and we provide a set of conclusions and recommendations for further studies.
Article
Many First Nations communities lack access to safe drinking water. In this article, we examine an under‐appreciated tool for improving First Nations water security – governance – and develop a framework for guiding the design and analysis of First Nations water governance models. In particular, we argue that three key ideas from the public administration literature – financial resources, regulation, and formalization – should be integrated with Indigenous insights and philosophies that are specific to each First Nations community. We illustrate how this might work by focusing on the insights, traditions, and philosophies of an Anishinaabek community in southern Ontario. De nombreuses collectivités des Premières nations n'ont pas accès à une eau potable et propre. Dans cet article, nous étudions un outil sous‐estimé pour améliorer la sécurité et la gouvernance de l'eau des Premières nations; nous élaborons aussi un cadre propice à guider la conception et l'analyse des modèles de gouvernance du secteur de l'eau des Premières nations. Nous soutenons notamment que les trois concepts clés trouvés dans la documentation de l'administration publique – ressources financières, réglementation, et formalisation – doivent être intégrés en tenant compte de la lucidité et des philosophies autochtones spécifiques à chaque collectivité des Premières nations. Nous illustrons cette démarche en nous concentrant sur la perspicacité, les traditions, et la philosophie de la collectivité Anishinaabek du sud de l'Ontario.
Chapter
Hydroelectric development on the Saskatchewan, Churchill, and Nelson River systems has been devastating for Cree peoples. Inundated by land flooding since the 1970s, the Cree have long fought for just relations with the utility Manitoba Hydro, the province of Manitoba, and Canada’s federal government. In this context, Cree self-government functions as a performative path to sovereignty as well as a means to resist exploitative relationships imposed by the state, province, and public hydro utility. The Cree have performed—undertaken, constituted, transmitted—their practice of sovereignty from time immemorial on their lands. Cree self-governance engages the imposed structures and discursive forms of Canadian law, that is, treaty and Aboriginal rights, as well as those of human rights in innovative and self-determined ways. First, they are committed to their lands through ancient, sustainable, and ongoing cultural practices and attachments. Second, the Cree ground their use of human rights discourse in historically specific struggle, based on their own commitment to sustainable relationships at multiple scales.
Book
Full-text available
In this in-depth analysis of First Nations opposition to the oil sands industry, James Heydon offers detailed empirical insight into Canadian oil sands regulation. The environmental consequences of the oil sands industry have been thoroughly explored by scholars from a variety of disciplines. However, less well understood is how and why the provincial energy regulator has repeatedly sanctioned such a harmful pattern of production for almost two decades. This research monograph addresses that shortcoming. Drawing from interviews with government, industry, and First Nation personnel, along with an analysis of almost 20 years of policy, strategy, and regulatory approval documents, Sustainable Development as Environmental Harm offers detailed empirical insight into Canadian oil sands regulation. Providing a thorough account of the ways in which the regulatory process has prioritised economic interests over the land-based cultural interests of First Nations, it addresses a gap in the literature by explaining how environmental harm has been systematically produced over time by a regulatory process tasked with the pursuit of 'sustainable development'. With an approach emphasizing the importance of understanding how and why the regulatory process has been able to circumvent various protections for the entire duration in which the contemporary oil sands industry has existed, this work complements existing literature and provides a platform from which future investigations into environmental harm may be conducted. It is essential reading for those with an interest in green criminology, environmental harm, indigenous rights, and regulatory controls relating to fossil fuel production.
Article
In The American Empire and the Fourth World Anthony Hall presents a sweeping analysis of encounters between indigenous people and the European empires, national governments, and global corporations on the moving frontiers of globalization since Columbus "discovered America." How should we respond to the emergence of the United States as the military, commercial, and cultural centre of a global empire? How can we elaborate a global rule of law based on equality and democracy when the world's most powerful polity acknowledges no higher authority in the international arena than its own domestic priorities? For Hall the answer lies in the concept of the Fourth World, an inclusive intellectual tent covering a wide range of movements whose leaders seek to implement alternative views of globalization. Larger than any earlier political movement, the Fourth World embraces basic principles that include the inherent rights of self-determination and a more just approach to the crafting and enforcement of international law.
Article
THE AMERICAN EMPIRE AND THE FOURTH WORLD: The Bowl With One Spoon, Part One Anthony J. Hall Montreal & Kingston: McGill-Queeris University Press, 2003. xlvi, Ggopp, $49.95 cloth (ISBN 0-7735-2332-4)After two seasons of political acquiescence, the Democrats last year rediscovered their adversarial backbone and appropriated the poetry of Langston Hughes ("Let America be America again") as a means by which to surgically critique the failed neoimperialist foreign policy agenda of George W. Bush.Hughes represents a distinguished intellectual pedigree that dates back to the revolutionary elan of Thomas Paine and the melancholy musings of Alexander de Tocqueville and that finds contemporary resonance in the critical oeuvres of Stanley Hoffmann and Noam Chomsky, whose works have respectively highlighted the continuing discrepancy between the high promise and often low performance of American life. To that honour roll of dissent belongs Anthony J. Hall's passionate indictment of US mores.Hall locates the genesis of American life in its brutal expropriation and exploitation of aboriginal natural and territorial resources. Fortified by the intertwining shibboleths of Lockean possessive individualism and Puritan exceptionalism, the American ruling class has been able to simultaneously practice, rationalize, and largely forget how they acquired the bounty of their own imperialistically acquired ill-gotten material gains. Graced by the advantageously applied lubricant of this brand of cultural amnesia, the US political/corporate elite has been able in this post-millennium dawn of laissez-faire consumerism to transpose their domestic predatory capitalist practices onto a larger global stage to even greater individualized profit but ironically to the ultimate detriment of the planet's well-being.The only remedy and potential redemption of this corrupt form of misconceived governance, Hall argues, lies in the vibrant alternative version of politics offered by a vaguely defined activist coalition of "fourth world" political forces that are collectively dedicated to the mutually reinforcing tasks of greater political and economic egalitarianism and restoring and promoting viable aboriginal principles respecting global cultural and biological diversity. Hall is to be commended to the extent that his unorthodox study helps rescue the aboriginal experience from the Thompsonsiandefmed abyss of being condescended to by the machinations of Clio's practitioners; instead, he usefully relocates aboriginal struggles in the evolving richer contextual sphere of international relations studies.Unfortunately, the isolated strengths of this volume are outweighed by its cumulative weaknesses. Repetitious in prose and style and poorly organized, this overextended survey too often reads like a Manichean melodrama in which the virtuously marginalized (natives and their allies) are constantly in battle with, and usually defeated by, the ceaseless malignant and omnipresent forces of capital. While there is unfortunately some truth to such a grim historical narrative, such a mode of analysis ultimately exaggerates, simplifies, and obscures as much as it illuminates the human condition.Examples of these tendencies are scattered throughout the text. …