Human Rights in Cross-Cultural Perspectives: A Quest for Consensus

9. Aboriginal Communities, Aboriginal Rights, and the Human Rights System in Canada

Allan McChesney 9. Aboriginal Communities, Aboriginal Rights, and the Human Rights System in Canada The peoples who first inhabited the northern part of the North American continent were more concerned with mutual responsibility for the survival and well-being of the group than with concepts akin to individual human rights. After five centuries of pressure from Europeans and their social philosophies, communitarian views are still widely held by descendants of the original peoples of what are now Canada and the United States.1 Yet, just as some institutions of the now dominant society may have borrowed ideas on democracy and diplomacy from the First Nations,2 the indigenous residents have not been immune to the political and social ideas surrounding them over the past five hundred years. Just as the diverse tribes, clans, and nations traded and learned from each other before white colonizers arrived, Native peoples have sometimes chosen to adopt and adapt ideas from their oppressors.3 Although there is a great diversity of religious, political, and social beliefs and organizations among indigenous peoples, there is a strong and wide current of shared ideals. This point is made by others in this book, notably Patricia Hyndman and James W. Zion. There remain sufficient differences, however, that, given the choices, some groups might opt for the Canadian model of legislated and enforceablehuman rights, while others would choose more traditional methods of ensuring dignity for all members of their communities. A belief held universally by people who consider themselves to be Aboriginal is that their communities have the right to determine their own destiny, including forms of government and modes of protection for human rights and/or human dignity. While many groups, in Canada and elsewhere, would choose as much political separation as possible from the dominant wider society, others might prefer a high degree of assimilation, hoping that it will lead to a better life. The 222 Allan McChcsney principles espoused by the World Council of Indigenous Peoples explicitly allow for this broad spectrum of self-determination.4 Other authors in this volume explore the essential differences in philosophy between indigenous peoples and those of European origin. The latter are said to place stress on competitive individualism, including striving for individual rights and liberties against the state and against each other. Native peoples arc characterized as holding to tenets of solidarity. These are reflected in the idea that dignity is achieved by fulfillment of understood roles, through community sharing, and by espousal of group rights as paramount over individual aspirations. The first four centuries of contact between whites and First Peoples involved widespread, acquisitory brutality on the part of Europeans that has often been termed genocidal. Canada continues to be, in large measure , assimilationist.5 Nevertheless, since World War II, there has been social and legal progress in Canada in the field of human rights, including the rights of Aboriginal communities and individuals. This chapter focuses on the interrelations between indigenous persons and groups in Canada and the human rights safeguard systems developed by the dominant society over the past four decades. I shall begin with a look at the mechanisms established in Canada to combat discrimination and to promote equal opportunity within the capitalist system. The implications of Canada's 1982 Constitution will also be considered, as will the relevance of international human rights law. The chapter will conclude with speculation as to what form human rights protective systems might take within self-determined, self-governed aboriginal jurisdictions associated with Canada. Does Antidiscrimination Legislation in Canada Serve the Interests of Native Individuals and Communities ? Starting in the ip6os, the Canadian provinces consolidated and improved scattered legislation that dealt with prohibition of racial and other discrimination . By the mid-igyos, every province, as well as the federal government, had a comprehensive statute forbidding discrimination, generally in employment, residential and business accommodation, government and commercial services, advertising, and other forms of public communication.6 Some human rights codes also include certain fundamental freedoms;7 one includes broad recognition of economic, social, and cultural rights.8 The grounds on which discrimination is prohibited Aboriginal Communities and Rights in Canada 223 vary, but most jurisdictions outlaw unfair treatment on grounds of race, national or ethnic origin, ancestry, color, religion, creed, age, sex, marital status, and physical disability.9 The highest judicial authority in Canada has decided that the law extends to unintentional or "systemic" discrimination as well as to that...