How Do Global Norms Bear on Reconciliation with Canada’s Aboriginal Peoples?

This week, the Truth and Reconciliation Commission, chaired by Justice Murray Sinclair, released its preliminary findings from a five-year inquiry into the terrible era of residential schools for Aboriginal children in Canada. These findings, and the surrounding public discussion, touched on a wide range of topics: the abuses inflicted on children in those schools, their impacts on survivors and on subsequent generations, and the measures necessary to move beyond this past into a new relationship of fairness and partnership between indigenous and non-indigenous Canadians.

It seems that the application of global norms within Canada is welcomed by Aboriginal groups most of the time but not always.

According to recent comments by Justice Sinclair and Aboriginal leaders, achieving such reconciliation will require action on many fronts. These include acknowledging that ‘cultural genocide’ was perpetrated by the Canadian government, ensuring relevant education for all Canadian children, and closing the “poverty gap” facing Aboriginal communities. More broadly, as argued by Assembly of First Nations Chief Perry Bellegarde, reconciliation will include recognition of First Nations’ right to autonomy over their traditional territories as well as fuller consultation and revenue-sharing when those territories are developed.

While primarily domestic, these challenges do have implications for Canada’s international policy—specifically, its endorsement and implementation of global norms. These implications are surprisingly complex: contrary to what might be presumed, a reconciliation agenda may not entail a comprehensive domestic application of what Canada affirms as globally relevant norms.

The most well-known international dimension of Canada’s relations with its Aboriginal peoples concerns human rights. In Bellegarde’s view, reconciliation entails a recognition by all Canadians “that First Nations rights are human rights, the rights that Canadians champion around the world”. Correspondingly, one of the recommendations in the Commission report is for Canada to implement the UN Declaration on the Rights of Aboriginal Peoples. That declaration was endorsed by the Harper government in 2012 as an ‘aspirational document’ without legally binding status. In September 2014, however, at the first World Conference on Indigenous Peoples, Canada was the only country in the world to object to a UN document re-affirming the indigenous rights declaration—purportedly out of concern that it could break new and troublesome legal ground in asserting Canadian Aboriginal land claims.

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A second front on which Canadian Aboriginal groups endorse global human rights norms concerns the massive level of violence experienced by Aboriginal women. Native leaders embraced a March 2015 finding by the UN Committee on the Elimination of Discrimination Against Women that Canada’s failure to hold an inquiry into missing and murdered aboriginal women is itself a violation of human rights. This UN finding gave support to First Nations’ calls for an inquiry in face of the Harper government’s refusal to call one. It also bolsters claims by Aboriginal groups that Canada’s legal and justice system have failed to protect their communities against violence.

Judging from these human rights issues, it might be supposed that Aboriginal groups would consider their interests to be best advanced through a maximalist Canadian adherence to all international norms. Matters become more complex, though, when issues of resource development and business relations enter the picture. As Aboriginal groups increasingly see their success tied to mutually rewarding and environmentally sound partnerships with developers on their traditional lands, considerations of economic autonomy are becoming more important.

In December 2014, Canada passed the Extractive Sector Transparency Measures Act, requiring Canadian oil, gas and mining companies to disclose to Ottawa payments they make to governmental bodies worldwide. Such disclosures must also be made available to public scrutiny. As the National Resource Governance Institute notes, the intent of this law (which now brings Canada in line with other G8 nations) is “to help people in resource-rich low- and middle-income countries hold their governments accountable for the management of revenues from the extraction of hydrocarbons and minerals.”

Mandatory reporting for Canadian extractive-sector firms begins in 2017, when they will be required to report all payments made “to any domestic or foreign government or trust, board, commission, corporation or body or authority”. However, following extensive consultations with Canadian Aboriginal groups during the Act’s development, Ottawa agreed to a significant modification: “the Act defers the requirement for extractive entities to report on payments made to Aboriginal governments in Canada for 2 years following the coming-into-force of the Act.”

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Here’s where the water of universal norms gets muddy. A major reason why Aboriginal groups opposed the reporting requirement is apparently that public disclosure of industry payments received would undermine the confidentiality and privacy that are part of business deals, potentially weakening Aboriginal groups’ negotiating leverage. Discussion of this issue at a recent Canada2020 conference on Aboriginal Peoples and Economic Development also revealed another concern underlying aboriginal groups’ opposition to the disclosure requirements. In response to a question from a mining industry executive about Aboriginal views of the Act, one Aboriginal panelist guardedly mentioned fears about the federal government prying unduly into Aboriginal economic affairs if resource extraction deals were made public.

Presumably the anti-corruption and public-interest intents of the Act led Ottawa to want Canadian Aboriginal groups brought under its purview. However, this protection seems to be considered by Canadian Aboriginal peoples—or their leaders, at any rate—as being unnecessary and inappropriate. In the sphere of economic advancement through resource development, the most pressing need felt by Canadian Aboriginals may not be protection against exploitative and corrupt development, but protection of their economic interests against harmful publicity. In this case, applying a global norm domestically is most unwelcome.

So where does this leave the reconciliation agenda in Canada with respect to international norms? In need of nuanced dialogue, above all. It seems that the application of global norms within Canada is welcomed by Aboriginal groups most of the time but not always. This is a messy but not incoherent (and not particularly unusual) state of affairs in public policymaking. While the details of specific issues should indeed be subject to full debate, taking this messy inconsistency as a reasonable starting point for discussion is part of respecting Aboriginal people’s assessment of their needs and interests. It is what the effort of reconciliation demands.

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