Towards Reconciliation: A Comparative Snapshot of Australia and Canada’s Take on Indigenous Rights

Michelle Larg is a first-year law student at McGill University, and holds a Bachelor of Philosophy (Hons) degree from the University of Western Australia.  Her previous majors under this research degree include Chemical Engineering, Chemistry, and French.  She is currently an Associate Editor for the McGill Journal of Sustainable Development Law.

While antipodal and culturally distinct, both Canada and Australia share residual monarchal ties, a past saturated with the consequences of colonialism, and the challenge of navigating reconciliation with their respective Indigenous populations.  Indeed, the historical practices of systematic oppression of these groups are strikingly similar between the countries.  During the nineteenth and twentieth centuries, both countries enacted several legislative measures aimed at cultural assimilation. This manifested notably in Canada’s Indian residential school system, and in Australia’s analogous Stolen Generations.  The legacy of trauma stemming not only from colonisation, but also from such policy endeavours, has engendered a significant socio-economic disparity between non-Indigenous and Indigenous people common to both nations today.  The statistics paint a startling picture of symmetry:  Indigenous peoples make up 25% of the prison population in Canada, and 27% in Australia, and half of the children in the child welfare systems in both countries.  As an Australian student who has recently relocated to Canada, however, it is the marked differences between the reconciliatory conditions of the nations that has caught my attention.

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While both federal parliaments formally apologised for the Indian residential school system and Stolen Generations respectively in 2008, Australia’s move towards enacting both symbolic and practical reconciliatory change has been slow.  Canada’s apology was issued only twelve years after the close of the last residential school, but it was almost four decades following the abolishment of the child removal policy in Australia before any such action was taken.  Moreover, Australia still has not granted their Indigenous minority constitutional recognition, while section 35 of the Canadian Constitution formally recognises and affirms aboriginal and treaty rights.  Although section 35 does not elaborate on the definitions of these rights – instead, leaving their definition to the courts –  it still remains a vast improvement over Australian proposals for potential amendment, which avoid any language pertaining to Indigenous rights at all.  Indeed, this has been a topic of heated debate in Australia in recent months, with the government formally rejecting a proposal for constitutional amendment only last week. Finally, 2017 saw tensions between non-Indigenous and Indigenous people escalate with the proposition that the date of Australia Day be changed to reflect the Indigenous perception of it marking a celebration of invasion.  This notion was fiercely rejected by the federal government, who stripped city councils which supported the idea of their right to host citizenship ceremonies.

In light of these issues, the fact that Australia was elected only a few weeks ago for a three-year term on the United Nations Human Rights Council has left many perplexed.  In fact, the UN Human Rights Committee itself criticized Australia’s “chronic non-compliance” with its recommendations.  The nation has also been condemned for often developing policies regarding Indigenous people without their consultation.  This begs the question: given their historical and political parallels, can Australia look to Canada’s recent initiatives and progress in the realm of Indigenous rights for guidance?

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From the perspective of a newcomer, it seems that Canada has made significant progress in the recognition and validation of Indigenous rights over recent years.  The introduction of Gladue reports is an example.  These pre-sentencing and bail hearing initiatives incorporate a holistic analysis into how colonial oppression has affected the upbringing, life, and conduct of Indigenous accused.  Such factors are to be considered during the sentencing phase of trials.  The reports aim to address the failure of the criminal justice system with regards to Indigenous peoples and their disproportionately high incarceration rates.  Australia’s High Court noted in 2013 that Australia could do well to follow Canada’s lead in this area.

Similarly, the emergence of Canada’s first Indigenous court created by and for Indigenous people last year is a noteworthy pillar of progress.  The Akwesasne court of the Mohawk people places a far greater emphasis on community-based restorative justice divorced from imprisonment than that of their Western counterparts.  It is self-governed, exists independently from the federal framework, and has transcribed a code of law of its own.  While community-run Indigenous courts have existed for a number of decades in Australia, they are still largely state-managed and operated and invoke Australian criminal laws, just in a more “culturally appropriate forum.”

It is clear that both countries still have their fair share of work to do.  Given Australia’s newfound position on the global stage as a promoter and protector of human rights, it has significant ground to cover in its own country with its own Indigenous peoples.  Despite its recent achievements, however, Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous People in 2016 was belated.  Many also argue that the Gladue reports make little practical difference or constitute an inaccessible and painful process.  Perhaps both countries could benefit from the more contemporary vision of Indigenous legal scholars. John Borrows, a Law Professor at the University of Victoria of Anishinabe origin, has suggested an integrated approach to viewing Western and Indigenous paradigms of thought, for instance. The ‘inter-societal law’ he advocates for involves the prospect of reciprocal dialogue between Indigenous and Western law, which could jointly guide legal decisions.  The reconceptualization of these two groups as inherently intertwined and of equal validity, rather than disparate and in competition, would likely mitigate many of the intercultural issues confronting both nations.  Indeed, with regards to my home country, such a perception would be a good start for resolving the constitutional recognition crisis which has re-emerged as a point of contention.

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