Canada has taken steps to limit the scope of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Australian government documents reveal that Ottawa secretly worked with Australia to create a watered-down alternative text in the early 2000s.
The development of a more lenient text towards governments was the idea of the then Liberal government of Jean Chrétien. Australia supported it as part of a tactic against indigenous leaders who refused to change the original text of the 1993 declaration.
Australia has decided to negotiate a comprehensive and robust alternative text with Canada to counter the existing proposal and prevent it from achieving customary international law status, two Australian ministers wrote in a now-released May 2003 document.
Canada viewed Australia as its most promising partner in drafting a new text, and Ottawa was willing to devote significant resources to the effort, another Australian document from 2002 said.
Canada and Australia will undoubtedly face criticism from harder-line Indigenous groups, including Australian groups, for their efforts to develop an alternative text in a non-transparent and bilateral manner.
These revelations come from documents released by the National Archives of Australia, which publishes such notes intended for government members after 20 years. The Guardian was the first to publish this information. In Canada, archives of this type can be accessible even after 20 years, but in this case they are not public.
Archival documents suggest that both Commonwealth states were aware that their dealings, bypassing the formal UN negotiating tables, were a sensitive issue.
For at least a year, starting in June 2002, neither government made the discussions public.
The fact that we are discussing an alternative text with Canada has not yet been made public, as we read in a document signed by ministers in 2003.
Our approach has been to discuss this alternative text only with key states that appear to have the same views and concerns as us.
Behind the scenes he stabbed us in the back
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Kenneth Deer was involved in the development of UNDRIP. (archive photo)
Photo: Ka'nhehsí:io Deer/CBC
I am not suprised. Disappointed but not surprised, says Kenneth Deer, a Kanien'kehá:ka man from Kahnawà:ke who helped found UNDRIP between 1987 and 2007.
Canada has always tried to put on a sympathetic facade, but behind the scenes it has stabbed us in the back, he denounces.
Records show that in the early 2000s, Australia became increasingly isolated in its opposition to Indigenous peoples' right to self-determination and fears that this right meant Indigenous peoples would secede. The Australian government wanted to delete this term completely and replace it with self-government.
Canada, in turn, accepted the concept of self-determination, but only if it was accompanied by negotiations and an agreement with the government.
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Jean Chrétien (center) was Minister of Indian Affairs (then name) under Pierre Elliott Trudeau (right). (Archive photo).
Photo: The Canadian Press
However, the two states agreed to remove references to demilitarization, territorial restitution, armed conflict and cultural genocide. They also wanted to add language mentioning the territorial and political integrity of sovereign states, which ultimately led to mixed results in the declaration ultimately adopted by the United Nations.
For example, a line reaffirming the territorial and political integrity of states was included in the final text. However, another article prohibiting the abduction or forcible withdrawal of indigenous peoples from their territory remained unchanged. Ottawa and Canberra wanted to change this clause because there are circumstances in which it is legitimate for Australia to deport a person from its territory (e.g. on child protection grounds).
The hope for mistakes within the indigenous faction
At the time, the indigenous faction involved in the U.N. negotiations took a negative stance toward any changes, Deer said. Australia hoped the alternative text could persuade more moderate factions of the caucus to break away from the purists, recent records also show.
Australia saw promise in a 1999 Canadian proposal that sought to work with states to develop texts for only certain simpler articles of the Declaration.
There are divisions in the indigenous faction between hardliners who support the original declaration and indigenous representatives who are willing to negotiate compromises, the 2002 document says.
Nevertheless, Australia considered exit strategies, which included breaking off the talks.
The refusal of hardline Indigenous groups to discuss the alternative text prepared by Australia and Canada may require the implementation of a strategy to terminate the working group, the Australian government statement said.
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The UN declaration was finally adopted by the organization in 2007, but Canada and Australia were slower to support it.
Photo: UN
In September 2003, the alternative text was finally revealed, sparking revulsion among First Nations people in Canada.
Amid all the pressure, some Indigenous leaders began proposing changes, opening the door for further negotiations, Deer says.
After 2003, the original text of the declaration was changed – after bitter discussions, recalls Kenneth Deer – without invalidating it, as Australia and Canada would have wanted.
Canada, the United States, New Zealand and Australia are the only countries that voted against UNDRIP in 2007 when it was adopted by the United Nations.
According to Kenneth Deer, Canada softened its position when Paul Martin became prime minister in 2003, and then consolidated it with the coming to power of Stephen Harper's Conservatives in 2006. But regardless of which party is in power, the Canadian bureaucracy has always been cautious about the rights of the Native people, believes Mr. Deer.
The Australian documents challenge claims made by Mr Martin, who noted in 2007 that Canada had always supported the Declaration and accused Stephen Harper of failing to act on the issue, which the Conservatives refuted.
A spokesman for the Martin Family Initiative, a charity founded by Paul Martin dedicated to the welfare of Indigenous children, said the former prime minister relies on archives in Canada. He also pointed out that Paul Martin left Cabinet in 2002 and was sworn in as Prime Minister in December 2003.
The Ministers of Indigenous Affairs and Foreign Affairs under Jean Chrétien were not available to comment on the matter.
The Harper government, for its part, supported UNDRIP, albeit as an ambitious document in 2010. His successor, Justin Trudeau, passed legislation in 2021 to bring Canadian federal legislation into line with the declaration. An action plan for implementation was presented last year.
Australia supported the Declaration in 2009 but did not propose anything to implement its principles.
Based on information from Brett Forester of CBC Indigenous