A Modern Analysis of Indigenous Right in Relation to International LawRecent years demonstrate that human rights have become a prevalent topic of discussion on a global scale. Despite the open discussion surrounding these rights, there remains ambiguity in regards to the relationship among human rights and the extent to which they protect the indigenous population on an international level. In order to determine the current state of the global indigenous rights movement, we must first consider the relationship between indigenous rights and human rights, why indigenous rights are often excluded from international law, and why states reject the demands of indigenous groups. The United Nations’ Universal Declaration of Human Rights, grants us thirty articles that we utilize as a guideline for how to achieve an elevated quality of life. Stating that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. The standards to which people may live with dignity, freedom, justice, and peace are clear and concise, granting equal standards of living regardless of differing levels of distinction; free from oppression that would otherwise affect minority groups, socioeconomic or otherwise. With these rights, the potential to fully develop as individuals within our communities is free of restraints. However, in addition to generalized human rights, there is an increasing need for the clarification of specific rights that may be applied to the world’s indigenous population.Section 5 of the Canadian Constitution Act of 1982 recognizes the existing rights of its indigenous population. Indigenous rights were thereby interpreted to entail cultural, social, political, and economic rights that include the right to own land, the right to fish and to hunt, the right to practice one’s own culture, and the right to establish treaties. Despite both universal human rights and indigenous rights, each being respectfully defined in official documents, there remain tensions between indigenous populations and those of the non-indigenous population. Indigenous peoples still face discrimination in our society today. Examples of such would be negative stereotyping and inequitable treatment. Negative stereotypes that are set in place have an influence on their subjects. According to Statistics Canada, indigenous peoples in Canada are subject to poorer health, lower levels of education, inadequate living conditions, higher rates of unemployment, higher incarceration levels, and higher suicide rates than their non-indigenous counterparts. While these are all indicators that we must work together to aide our indigenous population, it is through the efforts enforced by legal bodies, such as the Canadian government, that documents such as the Indian Act were introduced. This document neither recognizes the rights of the indigenous peoples, nor protects them. John Borrows of the University of New Brunswick Law Journal articulates that, “the federal Indian Act has inappropriately detracted from First Nations’ power. The Act flows from the idea that Indigenous people are inferior and must be schooled in Canadian forms to hasten assimilation.” Assimilation is not something with which the Canadian government is unfamiliar. The residential school system was created with the purpose of removing indigenous children from their families where they would have been brought up with the influence of their own culture. It was the goal of the Canadian government to assimilate the indigenous population into the dominant Canadian culture. This was a dark chapter in Canada’s history, whereas the irreversible consequences are still being felt by Canada’s indigenous population. Introduced by English philosopher, Jeremy Bentham, International law is a grossing independent system of law that operates outside the legal parameters of specific states. International law has interminably had increasingly prominent implications that are applied to the status and rights of peoples who are indigenous to lands that were once subject to colonization. However, International law is becoming ever more responsive to conversation concerning the achievement of peace and the minimization of human suffering. This modern movement of positivism in international law resurrects the ideologies of classical-era naturalism, whereby law was determined by the interpretation of what law ought to be, rather than what law is. Despite International Law’s efforts to alleviate human suffering, efforts concerning indigenous rights were still left untouched. Violations of treaties and agreements were not uncommon. This can be demonstrated with the Barriere Lake Solidarity, where the Algonquins of Barriere Lake had been struggling against the Canadian government since 1991 when the government failed to honour a trilateral agreement concerning rights to land. However, it is the indigenous peoples themselves in the 1970’s that had extended their efforts internationally through a series of conferences. These efforts helped establish indigenous people’s demands as legitimate on an international level. One of the major milestones in this movement was the International Non-Governmental Organization Conference. The conference focused on discrimination against Indigenous populations in the Americas. Yet, the question remains as to why Indigenous Populations were not initially included in International law. Since the time of their colonization, indigenous peoples have demonstrated a history of resistance proving their determination to continue with their lives, identities intact. Indigenous peoples were often recognized as sovereign peoples by states, as proven by treaties between indigenous populations and the governments such as, the United States, Canada, and New Zealand. But as indigenous populations began to decrease, and the settler populations augmented, states began to be less likely to recognize the sovereignty of their indigenous populations. Indigenous peoples themselves have thus continually worked to adapt while maintaining their distinct identity as sovereign peoples. It is therefore the lack of legitimate recognition that can be be held accountable for the absence of admittance on an international level.Politically organized communities such as states are oftentimes perceived as an almighty organization with the power to dictate and justly rule an entire territory with ease. Most recently however, it has been disputed as to how cooperative states may act when faced they are with the demands of their respective indigenous population. The United Nations (UN) held that the situation of indigenous peoples was the concern of their respective states and that, as long as their governments followed the general principles of universal individual human rights, there was no role that the UN could occupy. The UN first began, in 1990, to concern itself with decolonization. It was believed that the indigenous people living in the former European colonies would benefit from national liberation. It was in 1948 the Bolivian delegation presented a proposal with the prompt for a document that would aid indigenous peoples fully enjoy the human rights and fundamental freedoms common to the rest of human beings. Specifically, the delegation was to assist in gaining recognition of indigenous peoples’ specific rights, which are of high importance to them. This move by the Bolivian delegation, although continually revised and dismissed, would pave the way for what would later be known as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Using the Canadian government as an example, UNDRIP was well received by most nations in 2007. The UNDRIP represents decades of work on the part of Indigenous peoples on an international level. It is a document that is a large advancement for the rights of the global indigenous population. Throughout the process, Canada was supportive of the work put into UNDRIP and the attitudes that it represented. Yet, when the time finally came for Canada to adopt the UNDRIP, it refused along with three other countries, Australia, New Zealand, and the United States. This may demonstrate the true value at which Canada holds their indigenous population. By refusing to accept the UNDRIP, Canada entered a position of questioning and backlash. While Canadian courts have increasingly utilized international law to interpret domestic law, the Harper government said it feared that the UNDRIP would lead to “an Indigenous “veto” incompatible with Canada’s Constitution and treaty obligations”. The controversy revolves around the interpretation of “free, prior and informed consent ” in the UNDRIP, where the state had concerns with the of sourcing of natural materials. The concerns of a potential “veto” run parallel to the misconceptions that many non-indigenous citizens of Canada are concerned with. The modern interpretation of indigenous rights is that of special treatment rather than one that acts as a stride for equality. Fueled by misunderstandings, many non-indigenous citizens, particularly those of older generations, argue that the act of insuring specific rights to the indigenous population takes away resources from the majority, resulting in an imbalance of equality. This is a legitimate concern. The very purpose of human rights laws is to strive for equality. How is it then that the Canadian government may grant specific regulations for a designated population of its country? The main problem with this is the misinterpretation of equality. Most would take any rights in the terms of formal equality, that everyone should be treated equally. But if we consider the possibility of substantive equality, the efforts become more clear. Tasha Kheiriddin elaborates that “Unlike formal equality, which requires that the law treat all persons equally, substantive equality posits that to treat people equally, the law must actually treat some people differently.” The Substantive equality is designed to compensate for discrimination that has been felt due to the membership or association of a disadvantaged minority. It’s simply a question of equity versus equality. And while the world shouts equality, the state realizes that equality does not elicit fairness. Indigenous rights as well as universal human rights have made great advances in our modern society. Indigenous peoples, while previously excluded in international law are on the path to becoming prevalent contributors. And shared insight as to how misunderstandings can contribute towards the exclusions from international law can help pave the way for greater understanding. After years of little attention from the international community, indigenous peoples are continually making their voices heard. From being recognized and validated on an international level, to bringing peace and understanding to their respective countries, indigenous peoples have come a long way. Although there is still much work to be done, we may have peace of mind knowing that we are one step closer to a future where everyone can be treated equitably. Just as the United Nations’ Universal Declaration of Human Rights urges us to be.


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