Table of Contents
Introduction
The Indigenous people residing in Canada are struggling to have their sovereignty and their right to self-determination recognized. On their quest to self-determination, they have encountered political, legal and economic challenges. In order for the indigenous community to fully realize their political and economic liberation a concise and deliberate plan needs to be formulated.
The journeys to self-determination for the indigenous communities in Canada has been long and have been coupled with a lot of obstacles that have diminished their prospects of forming a separate state that is recognized internationally. Before proceeding to the crux of the matter, it is important to understand some legal terms that have been widely used in the context of self-determination and sovereignty. (Peretko, 2013)
Peretko Sovereignty in Australia is tightly connected to the Aboriginal self-determination movement. But how do you define sovereignty? And who has sovereignty in Australia, is instructive that the discourse of sovereignty and self-determination pursued by the indigenous community is incompatible with the Australian sovereignty. This is the reason why the quest has met both political and legal impediments in achieving the rights for self-determination. The issue is broad and there is need to consider various historical factors that have impacted on the discussion. The self-determination sought by these communities will definitely shake the foundations of the Australian crown. She is instructive on the matter and observes:
The legal and political system is reluctant to grant recognition to the Indigenous population for fears of reinforcing divides within Australia, and encouraging secessionists. But the obsession with preserving Australia’s territorial sovereignty suggests to Indigenous and non-Indigenous Australians alike, that territorial autonomy is the only form of self-determination. (Peretko, 2013, p. 102)
The Indigenous community in Canada and the rights for self-determination
The communities that are considered to be indigenous are the ones who inhabited the land long before the colonialist came and they also consider themselves to be separate or distinct from the larger society governing the territory that they live. The definition of indigenous communities is well elaborated under the “United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Indigenous communities.” It defines local communities as follows.
Those which had a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (See, also, Article 2, the Un Declaration On The Rights Of Indigenous Peoples)
Lorn observes that the indigenous communities in Canada have struggled to keep their culture and identity separate ever since the time of discovery and the conquest. The agitation for sovereignty and self-determination stems from the fact that they have suffered from political and economic oppression, also it has become difficult for them to retain their culture, ethnic traditions, and other important aspects of their cultures. ( Lorns, 1992)
It is argued that the attitude of the larger modern society has had also an impact in the sense that they often regard the culture and the traditions of these communities to be primitive and archaic. And that it is inferior the modern society, these indigenous communities have been resisted the attempts to be assimilated to the larger community for fear that they will lose their cultural and traditional identity that they have preserved for generations. The examples of the ingenious communities in the country of Canada are; the Aborigines and the Torres Strait Islanders. ( Ashini et, al 1995)
The obstacles faced by the Indigenous community in their Quest for self-determination and sovereignty
Sovereignty gives every state the right to claim over any land that they believe to be within their territory. Self- determination is a long process that is asserted and one is required to comply with the legal and political requirement in order to realize the rights to govern themselves, it is not a simple process. There are political and legal obstacles on the way in realizing self-determination. There is no doubt that the Aboriginal and the Torres start people exhibit features of nationhood which gives them the rights for self-determination, however, the Australian political and legal structure is against exercising such a right as will be shown in the paper. (Peretko, 2013)
First, the local constitutional and legal regime gives the Australian government the power and the mandate to exercise territorial power over the land that the local communities inhabit. More particularly, section 51(xxvi) of the Australian Constitution, which gives the legislature which represents the Commonwealth race, the power to make laws on behalf of all races. This constitutional provision, therefore, grants effective sovereignty to the state of Australian to effectively control the populations within the territorial boundaries. This concept is referred as territorial jurisdiction. This is a major legal hurdle that the local communities have to circumvent in order to achieve or realize their rights for self-determination. (Peretko, 2013)
Further, it is instructive to note that territory is at the heart of sovereignty without a defined territory it makes difficult for the local communities to achieve their ambitions of self-determination. The logic behind it is that for people to say that they are a sovereign state they must have a place which they govern, without it they become subject to the laws of the country that they inhabit. Despite that fact that the local communities’ rights under the Australian legal regime are recognized should not be interpreted in the terms of indigenous sovereignty. The prevailing legal model under the western model of land rights and sovereignty means that the local communities that want to assert the self-determination have no land to self-government due to the fact the land belongs to the Australian government. (Peretko, 2013)
Similarly, there is an ongoing debate on whether the local communities that want to assert their rights for self-determination have sovereignty over the people that they want to govern. This is a difficult matter as it also a requirement for self-determination under the international law. (Peretko, 2013) Therefore, the leaders of the local communities have to prove that they have the mandate of the people.
The bold political discourse among the aboriginal indigenous community in asserting the rights for self-determination was the “Aboriginal Embassy of the 1970s” when Paul Cue erected a parliamentary tent and established it as an embassy of the Aboriginal community. They were expressing their frustration and dissatisfaction with the way the Australians government was treating them and did not feel that they are a part of the Australian society. However, this showed that they lacked the political power to exercise the right for self-determination. (Peretko, 2013)
The matter of self-determination of the aboriginal community was given the judicial interpretation in the case of Coe v Commonwealth (1979) and the court decision that “there was no Aboriginal nation insofar as being a separate state or exercising sovereignty.” Further, the court stated that the claim of nationhood cannot be properly made without the consent of the concerned people. In the proceeding at the High Court Coe had argued that the state of Australia was wrongly considered as Terra nullius which means that the state of Australia was initially under the control of the indigenous community. Coe had argued that the Australian sovereignty was contrary to the rights, entitlements, interest and privileges of the local communities. ( Peretko, 2013)
In another case of Mabo (No 2) the court recognized the prior rights of the aboriginal and indigenous communities exists but rejected the arguments that politics, and the right of the internal government exist among the local communities. The court stated that allowing the local communities rights over the land will shake the social structure of the Canadian state. The two judicial decisions is a clear a manifestation that the two communities face a legal challenge in achieving their dreams the court has been reluctant to declare that the local communities in Australia, therefore the challenges that these communities face is to circumvent the legal hurdle in order of them to achieve the rights for self-determination.
Secondly, the local communities have faced political resistance in their quest for self-rule, there are a various political organization that was formed by the indigenous communities to for self-determination for instance in the 1960s there was National Indian Brotherhood and later other organization such as “Assembly of First Nation” and “Inuit Tapirisat of Canada” (Hodgins, Cannon, & Frost Centre for Canadian Heritage and Development Studies, 1995) However these organizations have not effectively addressed the issue since there is lack of goodwill from the Canadian government , secessionist are often viewed as people who want to split the nation and cause division within a state. (Bickerton, Gagnon, & A.-G, 2014)
Thirdly, despite the fact that self-determination is a recognized concept under the international law and the Canadian government is a signatory to it e.g. the United Nations Declaration on the rights of the indigenous people which Canada ratified in the year 2010. The hurdle faced by the local communities who want to exercise self-determination is often translation those provisions into tangible into solid institutional arrangements. (Bickerton, Gagnon, & A.-G, 2014)
Further, there appears to be sophisticated procedural and administrative requirement that is expected for the local communities to be able to ever achieve this dream. The local communities often face unwarranted delay and administrative battle when they want to assert their rights. The Canadian government has simply many times refused to negotiate those agreements for sovereignty and self-determination of the local communities involved. The biggest challenge that the local communities involved is that the federal and provincial government always goes against their commitment in helping the local communities achieve the aspirations for self-determination the lack of political goodwill is discernible from the actions of the federal and the provincial government. For instance, Bickerton observes that the word “self –government” is apparently missing in the in the website of the Aboriginal Affairs and Northern Development Canada engaged in promoting and engaging self-government agreements. ” Bickerton, Gagnon, & A.-G, 2014, p. 6)
We can do it today.
Recommendation
The starting point is to appreciate the fact that the right for self-determination is a right that is protected under Article 1 of the Charter of the United Nations which seeks to preserve the cultural and other traditional practices of the minority groups. Further, the International Covenant on Civil and Political Rights also protects the rights of self-determination, therefore, the local communities rights are well provided and therefore they should be bold enough to assert their rights to the federal and provincial government and if the host nation is not willing to assist them, they can litigate their issues in international Human rights courts.
Secondly, the Canadian government need to observe and respect the international instrument that it is a signatory to for instance, The International Covenant on Civil and Political Rights provides for the rights of self-determination therefore, the government need to honor its commitment to the local communities and offer them both the political and legal support to ensure that these communities are able to achieve their rights as enshrined in the international law.
Thirdly, the local communities need to have a clear agenda and action plan on how they want to achieve the right to self-determination. They must pursue a clear political and legal path to ensure that their aspirations are achieved. This would entail holding consultative meetings, and form a political roadmap on how they intend to achieve their goals.
Conclusion
The right to sovereignty and self-determination is a right that is guaranteed under the international law. In order for the local communities to achieve this plan, they must formulate a proper policy agenda. There must be constitutional and legislative change will ensure that the rights of the local communities are not infringed and the government need to remove all the barriers that are there which are not justified and are used to deny the local communities their rights.
There must be political goodwill from the politician and other stakeholder involved to offer both economic and political support to these communities since they do not have the proper capacity to pursue their agenda, therefore there must be a concerted effort to ensure that they are able to be assisted in every way possible.
Finally, the court should also be willing to declare that these communities have the rights to self-determination. The courts that have been discussed in this paper have shown the general reluctance by the courts to declare that these communities have the rights to self-determination. There needs to be a departure from the earlier jurisprudence from the courts.
- Ashini, D., Turpel, M.-E, Richardson, B., Hodgins, B. W., & Cannon, K. A. (1995). On the Land: Confronting the Challenges to Aboriginal Self-Determination. Toronto: Dundurn.
- Bickerton, J., Gagnon, & A.-G. (2014). Canadian politics.
- Hodgins, B. W., Cannon, K. A., & Frost Centre for Canadian Heritage and Development Studies. (1995). On the land: Confronting the challenges to aboriginal self-determination in Northern Quebec and Labrador. Toronto: Betelguese Books.
- Peretko, A. (2013). The Political Compatibility of Aboriginal Self-Determination and Australian Sovereignty. The Political Compatibility of Aboriginal Self-Determination and Australian Sovereignty, 29 – 2013.