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Minority Group Rights

Philosophy of Human Rights considering individualism, exceptions, self-determination, and equality
by

L Miller

on 28 April 2010

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Transcript of Minority Group Rights

"Traditional human rights doctrines are based on the idea of inherent dignity and equality of all individuals. The emphasis on group rights, by contrast, seems to treat individuals as the mere carriers of group identities and objectives, rather than as autonomous personalities capable of defining their own identity and goals in life. Hence it tends to subordinate the individual's freedom to the group's claim to protect its historical traditions or cultural purity" p. 445-446 Is outside regulation on indigenous/minority groups necessary or intrusive? Historically, tribal councils in the U.S. were excempt from respecting the Bill of Rights limits on judicial review are part of the 1968 Indian Civil Rights Act
"If a member of an Indian tribe feels that her rights have been violated by her tribal council, she can seek redress in a tribal court but she cannot seek redress from the Supreme Court" p. 451
No society's behavior has been perfectly just, and it is foolish to think injustices will never occur in minority group or tribal settings
"Indian bands in Canada have argued that their self governing councils should not be subject to judicial review under the Canadian Charter of Rights and Freedoms. They do not want their members to be able to challenge band decisions in the courts of mainstream society" (Kymlicka p. 451) Leaving minority/ indigenous groups exempt from rule of the federal government or of judicial review has two consequences; 1.) Indigenous groups are free from oppression 2.) Individuals within indigenous groups have little protection against oppression EXAMPLE A:
U.S. Pueblo reservation- Because there is no enforcement of the separation of church and state, there is nothing to keep the government and majority religion intertwined. The Pueblo denied housing benefits to members of the community who converted to Protestantism. EXAMPLE B:
The Pueblo- Children of FEMALE members of the tribe who marry outside are denied membership while children of the MALES which marry outside the tribe are allowed membership. This is a paradigm example of sexual discrimination. EXAMPLE C:
Native Women's Association of Canada- These women demanded that decisions of Aboriginal governments fall under the jurisdiction of the Canadian Charter because they are so worried about sexual discrimination. SO, what should the response of the federal government be??? "It is right and proper for liberals to criticize oppressive practices within indigenous communities, just as we should criticize foreign countries that oppress their citizens. These oppressive practices may be traditional, BUT TRADITION IS NOT SELF-VALIDATING. Indeed, than an oppressive practice is traditional may just show how deep the injustice goes" - Will Kymlicka EXAMPLE D:
The Saudi Arabian government- women and non-Muslims are denied political rights....
so does it follow that foreign liberal states should forcibly intervene to solve this problem? EXAMPLE E:
The German government- children and grandchildren of Turkish 'guest workers', who were born and raised on German soil, are denied political rights. Woodrow Wilson defended the American Colonization of the Philipines in 1902 on the grounds that "they are children and we are men in these matters of government and justice", however, modern opinions say this type of thinking is imprudent and illegitimate. Until 1982, Canada had no one court which ruled over the entire country
In Britain, there is a strong tradition of respecting individual rights but there is no one court which can overturn any parlaimentary decisions, and no bill of rights Even the U.S. did not hold states accountable to the Federal Supreme Court, only state supreme courts, until the Fourteenth Amendment was passed. They were responsible for respecting state constitutions but not responsible for respecting the federal Bill of Rights. The history of former colonies in Africa shows that "liberal institutions are likely to be unstable when they are the products of external imposition rather than internal reform" "some Indian tribes have expressed a willingness to abiide by international declarations of rights, and to answer to international tribunals about complaints of rights violations within their communities. They accept the idea that their governments, like all sovereign governments, should be accountable to international norms.... Most Indian tribes do not oppose all forms of external review. What they object to is being subject to the constitution of their conquerors, which they had no role in drafting, and being answerable to federal courts composed entirely of non-Indian justices" Holding aboriginal and other minority groups accountable to international standards and review is consistent with maintaining human rights on both the individual and group levels. So what does the international community have to say? FROM THE UNITED NATIONS GENERAL ASSEMBLY: THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE DEFINING ABORIGINAL CUSTOMARY LAW There is no generally accepted definition of what constitutes Aboriginal customary law because it is almost impossible to describe comprehensively. Aboriginal law was encoded in each group’s religious tradition. Further, Aboriginal laws are part of an oral culture, handed down from generation to generation by word of mouth. There is no written code or statement of customary laws. There is secrecy surrounding many of the laws, some of which are “sacred and not to be spoken about to anyone”, except the members of the relevant tribal group. Tribal laws differ from community to community. The practice of Aboriginal customary law is: the practice of well-health for the individual in the family and the group. Aboriginal Law was/is the maintenance and healing of relationships and was/is a constant process of negotiation, mediation and conciliation in managing and resolving the conflicts natural to all human associations. Disputes within Aboriginal communities are not generally perceived as restricted to individuals. The negotiation, mediation and conciliation involves everyone in the community. In particular, where the conflict involves an offence perpetrated by one against another, members of both the offender’s and victim’s families become involved. If physical punishment is appropriate, it is inflicted not by an authorised law officer, but rather by the people personally aggrieved by the behaviour. It is not uncommon for members of the offender’s family to be asked to accept punishment if the offender is in gaol and therefore unavailable. In such circumstances, it is important for a sentencing judge or magistrate to be aware of the repercussions of his or her sentence on the offender’s community. There are also numerous offences which are not recognised by non-Aboriginal law, such as insulting an elder, singing sacred songs in public, showing sacred objects to women and neglect of kinship obligations. Should Aboriginal customary law be recognised by the general criminal jurisdiction in New South Wales?
On what basis can the general criminal law take account of Aboriginal law? If recognition is appropriate, should this be formally prescribed by legislation?
Should legislative recognition be in terms of a general statement of principle or should specific statutory guidelines be provided?
Would it be preferable to leave recognition of Aboriginal customary law solely to judicial discretion? The Main Questions: A Problem with Two Law Systems If the punishment of these offences under Aboriginal customary law results in an offence under the criminal law of New South Wales, such as an assault, Aboriginal customary law will come into direct conflict with the criminal justice system. ARTICLE 7.2: Indigenous people have the collective right to live in freedom, peace and security as distinct people and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group Included states: Belgiu, Bolivia, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, Latvia, Nicaragua, Peru, Portugal, Slovenia and Spain The declaration affirms that all people "contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind". It further affirms that "all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, mmorally condemnable and socially unjust". The declaration shows concern for the fact that people of indigenous communities suffered historic injustices which resulted in dispossesion of their land, resources, and ability to exercise their rights to develop in such a way that meets their needs We must respect and promote inherent rights of indigenous peoples including their cultures, spiritual traditions, histories, philosophies, rights to land, and rights to resources. The declaration specifically recognizes the right "of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child. It acknowledges "that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights as well as the Vienna Declaration and Programme of Action affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development". Indigenous people are entitled to all human rights recognized in international law, but they also have collective rights which are imperative to their existence. ARTICLE 2: Indigenous people and individuals are free and equal to all other people and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous or identity ARTICLE 3: Indigenous people have the right to self determination.
ARTICLE 4: Indigenous people in exercising their right to self-determination have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions ARTICLE 5: Indigenous people have the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the state ARTICLE 8.1: Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture Article 8 also outlines specific duties of the state such as protecting the minority group from attacks on their ethnic identities, integration, propaganda, forced population transfer, redress for dispossession of land, and discrimination. ARTICLE 11: Indigenous people have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect, and develop the past, present, and future manifestations of their cultures such as archeological, and historical sites, artefacts, designs, ceremonies, technologies, and visual and performing arts and literature Discrimination toward indigenous people Legally, the U.S. has used the method of discovery to justify the take over from the native people & Australia has used "terra nullius". Terra nullius is the idea that before the colonization of Australia, the body of land had no previous owners- therefore precluding aboriginal groups from any ownership rights. Canada did not justify it's takeover with any legal theory. In 1982 section 35 was added to the constitution of Canada: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". <- empty box amendment. In Regina v. Syliboy in 1929 a Nova Scotia court rules that the treaty between England and the Mic Mac was a nulity. The used the reasoning that native were uncivilized and savages, and that the treaty need not be considered valid because it was made with only 'a handful of Indians'. In Sheldon v. Ramsay in 1852 an Ontario court held that the Six Nations Indians had no legal rights to reserve their lands because the common law could not be 'part savage and part civilized'. The first Canadian case ruling in favor of native tribes wasn't until 1984. The case held the federal government responsible for mismanagement of native reserve lands and awarded ten million dollars to the Musqueam band. United States v. Navajo Nation U.S. COURT CASES The Indian Mineral Leasing Act of 1938 allowed Indan tribes to lease their lands to private companies. In 1964 the Navajo Nation entered into a lease with a mining company for which they received 37.5 cents for every ton of coal mined and no renegotiation for 20 years. By 1984 the tribe was receiving only 2% of the company's gross proceeds. The tribe requested that the government intervene and set a fair rate, and at the refusal the Navajo Nation brought suit against the U.S. government claiming that they betrayed the tribes trust and failed to protect them from exploitation. The court ruled that the U.S. was not liable for a breach of trust with the Indian tribe in connection with the negotiation and violated no specific statutory or regulatory duty established in the 1938 act. Eddie Mabo was born in the Torres Strait Islands, he lived there his entire life, and believed that he owned that land. However, he was dispossed of it because the government claimed that it was Crown land. He went through a ten year legal dispute to regain his land. Not until 1992 did the High Court rule in favor of Mabo's claim that the Murray Islanders held Native Title to three islands on the eastern fringe of the Torres Strait. Anti-Discrimination Commission Queensland: Annual Report 2004-2005
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