The existence or recognition of distinct rights could at first glance seem incompatible with the right to equality set out in our charters of rights and freedoms.
In this regard, we often confuse equality with sameness. The text of Québec’s Charter of Human Rights and Freedoms helps us better understand the real meaning to be attributed to the right to equality. The preamble indicates that all human beings are above all “equal in worth and dignity.” Nowhere in the Charter is it indicated that all human beings must be the same. In fact, the respect for differences forms the basis of numerous other fundamental rights and freedoms, including the freedom of conscience, freedom of opinion, and freedom of religion and religious belief. And the right to one’s own cultural life is just as much a human right as any other, being expressed in particular by a certain way of life that is tied to the land and the use of natural resources.
Moreover, Aboriginal people are not Québec and Canadian citizens like everyone else, and they never were Québec and Canadian citizens under either the French regime
There are 11 Aboriginal nations recognized in Québec: Abenaki (Waban-Aki), Algonquin (Anishinabeg), Atikamekw Nehirowisiwok, Cree (Eeyou), Huron-Wendat, Inuit, Maliseet (Wolastoqiyik), Mi’gmaq (Micmac), Mohawk (Kanien’kehá:ka), Innu (Montagnais) and Naskapi. Across Canada, there are nearly sixty Aboriginal nations.
In Canada, there are two types of treaties with Indigenous peoples: peace and friendship treaties, and land treaties, i.e., those specifically dealing with land and land titles.
The government’s objective with land treaties was to remove obstacles to colonization and to encourage First Nations members to abandon their lands and lifestyles and assimilate.
A Distinct Status since the French Regime
| Up to 1760: Under the French Regime, | « Allies of His Most Christian Majesty ». (section 40 of the Articles of Capitulation of Montreal, 1760) |
|---|---|
| 1763: Under the British Regime, | « Nations and tribes” whose “protection” must be assured. ». (Royal Proclamation, 1763) |
| 1867: In the Constitution of Canada, | « Indians” and “lands reserved for Indians, », under the exclusive jurisdiction of the federal government.(section 91.24 of the Constitution Act, 1867) |
| 1876: In the Indian Act, | Wards of the state under federal guardianship. |
| 1935: In a Supreme Court judgment, | The “Inuit” are “Indians”. The Supreme Court of Canada rules that the Inuit fall under federal jurisdiction, but the Canadian government would expressly exclude them from the application of the Indian Act. |
| 1982: In the Canadian Constitution and the Canadian Charter of Rights and Freedoms, | «The Indians, Inuit and Métis” are “aboriginal peoples” with “aboriginal and treaty rights”. (Section 35 of the Constitution Act, 1982 and section 25 of the Canadian Charter of Rights and Freedoms) |
Photo credit: W. B. Edwards, Tshakapesh collection
Photo credit: AFNQL
Photo credit: National Archives of Canada, PA 164775
International Recognition of the Rights of Aboriginal Peoples
UNESCO (United Nations
Photo credit: Bibliothèque publique et universitaire, Genève. Phot. F. Martin
The attempts of the Aboriginal peoples of the Americas to obtain justice through international legal proceedings is not new. Their first efforts took the form of appeals, petitions and requests to the imperial authorities of the various colonizing countries; from the eighteenth century onwards, Aboriginal delegations and ambassadors regularly travelled to London. One of these trips occurred in 1825, when the great Huron chief Nicolas Vincent and three other chiefs from Jeune-Lorette met with King George IV in the hope of winning their case in a dispute over the lands of the Seigneurie de Sillery; unfortunately, the responsibility for settling the dispute was sent back to the local authorities. The creation of the League of Nations, in 1919, appeared to offer a way forward, but as we saw in Assimilation: Not a Hidden Objective, the Iroquois Chief Deskaheh’s attempts to have the case of his tiny nation heard met with no success.
The creation of the United Nations, in 1945, gave rise to new hope. The UN’s Charter clearly stated the right to the equality and freedom that was to be enjoyed by all peoples and nations both large and small as well as its firm commitment to put an end to colonialism
Photo credit: Pierre Lepage
Photo credit: Félix Atencio-Gonzales, CDPDJ
It was not until the early 1970s that the United Nations began to show a real interest in Aboriginal questions. The Sub Commission on Prevention of Discrimination and Protection of Minorities produced a massive study into the discrimination faced by Aboriginal peoples. Its report, which was the result of ten years of work, is both impressive and forceful, as this extract shows:
Much of their land has been taken away and whatever land is left to them is subject to constant encroachment. Their culture and their social and legal institutions and systems have been constantly under attack at all levels, through the media, the law and the public educational systems. It is only natural, therefore, that there should be resistance to further loss of their land and rejection of the distortion or denial of their history and culture and defensive/offensive reaction to the continual linguistic and cultural aggressions and attacks on their way of life, their social and cultural integrity and their very physical existence. They have a right to continue to exist, to defend their lands, to keep and to transmit their culture, their language, their social and legal institutions and systems and their way of life, which have been illegally and unjustifiably attacked.
The creation of the Working Group on Indigenous Populations, in 1982, is the most significant element in the UN’s interest in the situation of these populations. The Working Group quickly set to work on a project for international standards, and in 1993 a draft version of the Declaration on the Rights of Indigenous Peoples was finished and submitted to the United Nations General Assembly for adoption. In the interim, the General Assembly proclaimed 1993 the International Year of the World’s Indigenous People and 1994–2003 the International Decade of the World’s Indigenous People. It also approved the idea of creating the Permanent Forum on Indigenous Issues within the United Nations.
Trente années d’efforts soutenus en vue d’une reconnaissance internationale, voilà qui méritait un dénouement Thirty years of sustained effort to obtain international recognition deservedly led to a positive outcome on September 15, 2007, when the United Nations General Assembly passed the Declaration on the Rights of Indigenous Peoples. The stakes were high, because the Declaration recognizes that Indigenous peoples and individuals are not part of a racial, ethnic, religious or linguistic minority, but free and equal to all other peoples and individuals, with the “right to self-determination” (Article 3). With respect to resource development on Indigenous lands, the Declaration is intended to end unilateral government policies. Article 32, in particular, specifies that States must consult and cooperate with the Indigenous peoples concerned “to obtain their free and informed consent prior to the approval of any project affecting their lands or territories” (United Nations, General Assembly 2007).
In an article that appeared in the Revue générale de droit, Cree lawyer Roméo Saganash explains what the recognition of the right to self-determination means for Aboriginal peoples:
You do not have to be an expert in international law to determine what a people’s right to self-determination means. Fundamentally, it is the right to exist, to flourish as a people, and to be respected as such by other peoples. It is the collectivity’s equivalent of the individual’s right to equality, dignity and freedom. Seen from this perspective, the right to self-determination is an inalienable, indivisible and universal right.