Human Rights must apply on Canadian Aboriginal reserves too

March 4, 2010

By Joseph Quesnel
Policy Analyst
Frontier Centre for Public Policy

Joseph Quesnel
Joseph Quesnel

LETHBRIDGE, AB, Mar. 4, 2010/ — If the Mohawk community of Kahnawake wanted a way to end up on the six o’clock news, attempts to evict 26 non-Natives from their reserve was the perfect way to do it. As most readers now know, those not meeting the Kahnawake reserve’s community membership code – many are involved in romantic relationships with Mohawks and some are long-time caregivers for resident members – were given 10 days to leave.

As of today, only 12 of the 26 have responded. Now the band council says they will publicly post the names of those who have not left if they fail to meet this deadline.  

The core, obvious problem in Kahnawake is that Pierre Trudeau’s famous admonition that the “state has no business in the bedrooms of the nation,” has been tossed out as Mohawk leaders openly discourage Mohawks from entering into relationships with non-Mohawks.

What’s the justification? After all, it’s not as if a non-Native community could or should say to Aboriginals married to Caucasians “you don’t belong here.” But the Mohawk Council pointed to its Kahanawake Membership Law, adopted in 2003, which only allows for non-Mohawk members who have lived on the reserve since before 1981.

Change in federal policy the culprit

The Mohawks were able to change its law because of a 1985 change in federal policy which allowed local reserves to set “membership” criteria; Ottawa separated federal Indian status from band membership so membership has been determined by local First Nations ever since.

So, should that be the end of the debate then?

No. The Kahnawake council has indicated they will change their membership law, although whether it will conform to human rights norms is unclear.  The Mohawk membership code should respect human rights standards in the same manner as must other any municipality. The premise that government bodies may do whatever they wish to residents living on a given territory is unacceptable. In an international context, a state cannot use “national sovereignty” to trump human rights. So, why are human rights violations allowed in Canada under the “trump card” of Aboriginal self-government?

Regrettably, the national Aboriginal leadership has been silent. Neither the Assembly of First Nations (AFN) or the Congress of Aboriginal Peoples (CAP) (which traditionally supports band governance reform) have made any announcements on the Mohawk eviction issue. 

The AFN only makes bold statements in favour of the Universal Declaration of Human Rights when it suits them, ignoring situations such as the evictions. As for CAP, one of its last releases was about the Vancouver Olympics. The only organization courageously leading on the issue is Quebec Native Women, a more obscure organization with little clout in the policy-making sphere.

Aboriginal leaders and band governments hardly ever criticize the bad actions of other Aboriginal bodies. Their lack of criticism, unfortunately, which occurs when it is considered bad form to air dirty laundry, allows bad policies to go unchecked.

First Nation leaders should stand up for what is right in hopes that others may follow because First Nations need a balanced solution that first respects the inherent civil rights of members and resident non-members alike. Only after that can we deal with the question of local citizenship.

First Nation human rights code

Some hope the new human rights legislation, which will apply to First Nation bands in June 2011, will help resolve this issue. One can only guess whether non-Native residents living on Indian reserves will receive adequate protections through this mechanism, however. Don’t hold your breath, given that the legislation includes an “interpretive” clause which requires courts and tribunals to take Aboriginal collective interests into consideration in applying the law; that big escape clause could require those bodies to shield these edicts from challenge on grounds of “community survival.”

An idea worth exploring is the creating of a First Nation human rights code. In the meantime, First Nation leaders, as well as individual band leaders, should state band membership codes should always be subject to the Charter of Rights and Freedoms and international human rights norms.

Instead of being silent on the Mohawk affront to basic civil rights, Aboriginal leaders must oppose the actions of any band that engages in such behaviour, behaviour which most of us thought disappeared in the American south decades ago, and never thought it would reappear north of the 49th parallel.  

Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy, where he writes mainly about Aboriginal and property rights issues. He is a co-author of the Third Annual Aboriginal Governance Index.

Channels: The National Post, March 4, Calgary Beacon, March 5, the Calgary Herald, March 6, the Red Deer Advocate, March 12, Canada Free Press, March 13, Flin Flon Reminder, March 26, 2010

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