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Debate: Should aboriginals be treated differently under the law?

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Background and context

Australia, Canada and the United States of America have struggled with the aboriginal question since the first colonialists arrived from Britain. In North America and Australia, there existed large groups of nomadic people, today commonly referred to as aboriginals or First Nations. The settlers made treaties with the aboriginals. In some cases, the treaties regulated the exchange of goods between the settlers and the aboriginals. In other cases, the aboriginals and the settlers made treaties of peace and friendship, promising to act as allies against other invading colonials. What was an equal partnership between the aboriginals and the settlers deteriorated. In North America and Australia, aboriginals were pushed onto reserves as their numbers dwindled due to small pox infection and tribal infighting. Aboriginal lands were used by settlers to establish farms and colonies. The Crown took advantage of the aboriginal’s language barrier to interpret treaties in favour of the settlers.Today, aboriginals in all three countries, but especially Australia and Canada, are using the court system to protect their treaty rights. Issues that are being litigated include whether aboriginals have a historic right to fish, hunt or trade on certain lands and whether aboriginals have title to lands seized by the Crown in violation of their treaties. Aboriginals are also struggling with issues of self-government and criminal justice.

See Wikipedia's articles on Indigenous Australians and Aboriginal peoples in Canada for more background.


Broken treaties: Do modern nations owe indigenous people a debt for breaking treaties?


Aboriginals deserve differential treatment as compensation for violated treaties: In almost all instances, aboriginals and settlers made treaties. Those treaties were violated by the settlers in an effort to further their own colonial aims. To protect those historical agreements and to right those wrongs, aboriginals must be treated differently than the rest of society. In Australia and Canada, the courts have held that aboriginal peoples have the right to claim title in specific circumstances. Similarly, in Canada, aboriginal groups can seek certain rights if they can prove the historic existence of that right.


The treaties were made by a colonial power in a different age and time: Further, those rights were violated by settlers in that age and time. Today’s democratic governments, having to deal with large populations of non-aboriginals, including immigrants and visible minorities, should not be expected to bear the burden of those previous colonial powers. Land title claims do not just affect farming lands in rural Australia or Canada; aboriginal groups have mounted title claims regarding large portions of Melbourne and Vancouver. It is unrealistic for modern governments to simply turn over metropolitan land and ignore the rights of the current inhabitants.

Mistreatment: Do governments owe aboriginals for past mistreatment?


Differential treatment is compensation for past mistreatment and wrongs: The historic abuse and mistreatment of aboriginals is to blame for the high rate of crime and drug addiction in these communities. In both Canada and Australia, aboriginal children were forcefully removed from their homes and educated in "residential schools". That practice has been the target of large-scale lawsuits, in part because of the violence and racist attitudes that permeated those institutions. In Australia, 25% of all aboriginals are unemployed and their life expectancy is 20 years less than for non-aboriginals. In order to correct these problems, modern governments must take responsibility for their historical actions and give aboriginals as many advantages as necessary for them to successfully integrate into the larger community. This includes funding for aboriginal education, aboriginal-oriented criminal justice programs and compensation.


Problems faced by aboriginal communities are not unique to any one group in society: Further, those problems can be linked to the practice of isolating aboriginal communities on reserves far from urban centres. If aboriginal peoples were to integrate into the larger community, by moving into urban centres and participating in mainstream education and social services programs, crime rates and addiction rates would decrease. By remaining on reserves, aboriginal peoples are trapped in a cycle of poverty than cannot be combated.

Culture preservation: Should the cultures of aboriginals be given special protection?


Aboriginal culture will be lost if modern governments do not help to protect it: In both North America and Australia, aboriginal populations are dwindling. Aboriginal language and cultural practices, numbering in the hundreds, are either extinct or endangered. Aboriginal language and culture is intimately connected to the land. By removing the rights of aboriginals to freely hunt or fish or travel, the culture is being lost. The Supreme Court of Canada recognized this problem when it granted two aboriginal groups the right to uninhibited access to national parks for the purpose of performing sacred rituals.


Cultures, including aboriginal traditions, evolve and morph through time and the interaction with other cultures: Pre-contact, aboriginal peoples did not use guns to hunt; today, it is unlikely that an aboriginal person would shoot a deer or elk with anything but a hunting rifle. Similarly, aboriginal fishers are using modern developments, like trawlers, to make their catch. These practices are not "aboriginal culture". Their modern takes on historical practices do not deserve protection. Aboriginal languages may be endangered but that is a product of their irrelevancy in a modern, English-speaking society. In North America and Australia, English is the lingua franca of business and government. Aboriginal groups can attempt to protect their languages, but they should do so in the same way as any other minority, for example, Asian immigrants.

Leveling playing field: Is "leveling the playing field" generally an acceptable practice?


In the U.S., affirmative action is an acceptable way of "levelling the playing field", why not approaches to aboriginals as well: Historic wrongs against aboriginal peoples have created a cycle of poverty, under-education and unemployment. Aboriginal peoples may have lower test scores or missed job opportunities because of this history. As such, quotas for university seats or public service positions can help redress community wrongs and create a stronger aboriginal identity.


Differential protection for aboriginals is "affirmative action": Affirmative action, either in an employment or educational setting, does not necessarily lead to advancement for the affected group. Further, it can create resentment amongst the majority. Aboriginal peoples should not be told that their historical hardship justifies lower standards and automatic acceptance.

See also

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