Inaugural Lecture of the John P. Humphrey Lectureship in Human Rights

By Lauren Laframboise

On December 9, 1988, John Peters Humphrey, McGill University’s most famous human rights advocate, addressed the McGill Faculty of Law for the inaugural lecture of the John P. Humphrey Lectureship in Human Rights. In this particular address, Humphrey argues that “we must strengthen the role of the individual, and weaken the role of the state” in the promotion and protection of human rights. To illustrate this point, he uses the case of Sandra Lovelace, an indigenous woman who bypassed the Canadian state, and went directly to the United Nations in response to unjust treatment under federal legislation. Canada, according to Humphrey, changed the ‘Indian Act’ in favour of Lovelace’s demands in order to maintain its positive image in international public opinion. In Humphrey’s words, ‘public opinion is the ultimate sanction of this rapidly developing world law of human rights.’ This speech challenges the nation-state’s ability to protect the rights of its citizens.

What, then, is the role of a country’s government in human rights? Despite popular conceptions of a positive Canadian image, history tells us otherwise. The Canadian government saw the Universal Declaration of Human Rights as “vague, permissive, and in need of further study,” and abstained from the initial vote for its approval.[1] Though Canada eventually supported the UDHR, its underwhelming relationship with the United Nations and human rights does not stop there. Canada was one of the only countries to oppose the United Nations Declaration on the Rights of Indigenous Peoples. According to then Indian Affairs Minister Chuck Strahl, ‘signing on [would be] saying that the only rights at play [in Canada] are the rights of the First Nations, […] that’s inconsistent with our constitution.’[2] The federal government perceived the UN Convention as threatening to the Canadian constitution because it requires that the treaties between settlers and indigenous peoples be respected. In Canadian constitutional history, those treaties are founded on a nation-to-nation relationship between the government and indigenous nations.[3] Evidently, the Canadian government has not upheld these treaties, nor respected the notion of a nation-to-nation relationship.  In this vein, the federal government regularly decided / defined who had indigenous status and who did not – as was the case with Sandra Lovelace.

Significantly, John Humphrey does not use Mrs. Lovelace’s case to condemn the Canadian government for its historic denial of indigenous rights. Rather, he argues that the Indian Act was ‘a blatant case of discrimination based on sex.’ Sandra Lovelace is an indigenous woman who married a non-indigenous man. Under the Indian Act at the time, she lost her indigenous status and all the rights associated with it. However, if an indigenous man married a non-indigenous woman, he would maintain his status. It was not the philosophical / epistemological basis of the legislation that was problematic, in Humphrey’s opinion, but rather its unequal implementation across the gender spectrum.

Indigenous scholars have a much different understanding of the Indian Act. According to David McNab, “the Indian Act [established] the colonial relationship of the federal government to the First Nations.”[4] Confederation ignored the treaties with First Nations, and placed them under federal jurisdiction. McNab elaborates further, “the federal government still today decides who is or who is not an Aboriginal person under the registration process of the Indian Act.”[5] Thus, the federal government has the final say in which rights ‘Canadian citizens’ can and cannot enjoy, which is in clear violation of the ‘nation-to-nation’ relationship upon which ‘Canada’ is founded.

In his discussion on the role of the government in the protection of human rights, Humphrey challenges the notion of Canadian state sovereignty. “I have said the contemporary state system is obsolete. We must strengthen the role of the individual and weaken the role of the state.” When we call the very notion of state sovereignty into question, we can imagine a place in which all of the First Nations living in the territory that has come to be known as ‘Canada’ are recognized as such, as nations. This reconstructs the national boundaries of ‘Canada’ as international.

Unfortunately, however, the concept of an international nation-state does not reflect the historical lived realities of indigenous peoples in Canada. The federal government’s capacity to act as a free nation under the ‘contemporary state system’ has allowed it to enact problematic legislation like the Indian Act. The Indian Act defines the sovereign, colonial relations between the federal government and indigenous peoples, and the Canadian government has done everything in its power to protect that relationship.

We can thus conclude that Canada’s historic opposition to United Nations human rights declarations lies in the state’s perception of these international legal documents as a threat to its sovereignty. The government has defended its legislation in regards to indigenous peoples on the international stage, while championing its positive image. Just six years ago, at the G20 summit, Prime Minister Harper stated: ‘We have no history of colonialism, […] so we have all the things that many people admire about the great powers but none of the things that threaten or bother them.’[6] The Canadian conception of the self is based on the active erasure of its past. If public opinion is in fact ‘the ultimate sanction,’ what happens when public opinion is shaped by misconstruction and misrepresentation?


[1] The Canadian Encyclopedia, s.v. “The Universal Declaration of Human Rights,” accessed February 21, 2016 http://www.thecanadianencyclopedia.ca/en/article/the-universal-declaration-of-human-rights-feature/

[2] “Tories Defend ‘No’ in Native Rights Vote.” Canwest News Service. 14 September, 2007. Accessed 23 February, 2016. http://www.canada.com/montrealgazette/news/story.html?id=5a03839b-6ee5-4391-8cd8-fe9338ac7baf

[3] David McNab, “A Brief History of the Denial of Indigenous Rights in Canada,” in A History of Human Rights in Canada: Essential Issues, ed. Janet Miron, (Toronto: Canadian Scholars Press Inc., 2009), 101.

[4] McNab, “A Brief History of the Denial of Indigenous Rights in Canada,”105.

[5] McNab, “A Brief History of the Denial of Indigenous Rights in Canada,” 106.

[6] Leslie Adler. “Every G20 nation wants to be Canada, insists PM,” Reuters, September 25, 2009, accessed February 24, 2016, http://www.reuters.com/article/columns-us-g20-canada-advantages-idUSTRE58P05Z20090926.

 

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