. (Fall ): –
ABORIGINAL RIGHTS ARE NOT HUMAN RIGHTS
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.
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
he growing discourse around Aboriginal rights has suﬀered 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 diﬀerence 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 diﬀerent 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 oﬀense under the Indian Act violated his
human rights, since the same oﬀense 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 diﬀerent
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 diﬀerence 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 eﬀectively 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 diﬀerently 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 Agamben’s 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 women’s rights (suﬀragette) 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 eﬀect 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 diﬀerent
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,
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 oﬃcials 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 aﬃrmative, diﬀerential 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 eﬀort in Westminster, section , which in the act
follows after the Charter of Rights and Freedoms, recognizing and aﬃrming
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 eﬀect 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, diﬀerent 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 eﬀectively ensures that Aboriginal rights take second
place: that universality will always hold the deciding cards over cultural
diﬀerence. 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 Aﬀairs, 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 eﬀect let the Canadian government
oﬀ 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 aﬃrming 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 oﬀ reserve Indians could run for oﬃce 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 aﬃrming 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 eﬀective 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
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 eﬀects,
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 aﬀairs, as well as ways and means for ﬁnancing their
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
aﬀairs.” 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
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
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 diﬀerent nations clearly have diﬀerent abilities to protect their citizens and
have diﬀerent 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 eﬀect the Universal Declaration of Human Rights should be suﬃcient 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
diﬀerent 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 diﬀerent 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 diﬃcult to feel optimistic about global compli-
ance in human rights instruments. It is even more diﬃcult 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. ompson’s 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 diﬀerent 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.
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