ABORIGINAL TITLE ALLIANCE
2836 B Trans Canada Hwy
Chase, British Columbia, V0E 1M3, Canada
Phone: (250) 319-0688
REPORT TO UN SPECIAL RAPPORTEUR ON THE
RIGHTS OF INDIGENOUS PEOPLES JAMES ANAYA
ON CANADA'S VIOLATION OF INDIGENOUS
PEOPLES RIGHT TO SELF-DETERMINATION
Presented October 10, 2013
I. REQUEST FOR INVOLVEMENT OF UN SPECIAL RAPPORTEUR
In Canada, we as Indigenous Peoples, are experiencing human right violations regarding our rights to self-determination under Article 1 of ICCPR/ICESCR and Article 3 of UNDRIP. Our rights to self-determination are not recognised by Canada. We continue to be colonized, experience territorial dispossession and live in poverty and dependency on the state. There is a great and persistent disparity between our peoples and Canadian settlers. We urge the UN Special Rapporteur, Mr. James Anaya, to accept and act upon the following recommendations for achieving our rights to self-determination and addressing these human rights violations so that we may live in peace and freedom as peoples in decolonized relations with Canada:
1. We request that the UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya recommend that Canada recognise that Indigenous Peoples in Canada have the right to self-determination.
2. We request UNSR Anaya to investigate Canada’s failure to meets its international obligations to Indigenous Peoples concerning our right to self-determination. It is a fact that Canada does not recognise and has not implemented Indigenous Peoples’ rights to self-determination. We recommend that UNSR James Anaya send a letter to Canada stating his evaluation of Canada’s human rights violations in relation to Indigenous Peoples. We further recommend that UNSR James Anaya work with Indigenous Peoples, other United Nations human rights bodies and Canada to develop ways and means to overcome this obstacle and design best practices for achieving the full and effective protection of our rights as Indigenous Peoples. In particular, we urge UNSR James Anaya to work with us to formulate recommendations and proposals for the development of appropriate measures and activities to 1) prevent violations of our right to self-determination by Canada; 2) remedy them; and 3) coordinate cooperation with other UN bodies to ensure there is international oversight and review over the implementation of our right to self-determination as Indigenous Peoples in Canada based on detailed plans and processes.
3. We request that UNSR Anaya work with the United Nations Human Rights Committee on the implementation of Article 1 of the ICCPR/ICESCR and Article 3 of UNDRIP in Canada and to report to this Committee and the UN General Assembly about Canada’s violations of our human rights, in particular our right to self-determination. We further recommend that UNSR James Anaya urge the United Nations Human Rights Committee to independently investigate Canada’s answer to the Committee’s question on “the concept” of self-determination as it applies to Indigenous Peoples in Canada. We advocate that UNSR Anaya directly engage Indigenous Peoples with this investigation to ensure there is debate, discussion and a thorough examination of the state of rights to self-determination. We urge UNSR Anaya to inform the Committee to ask Canada to complete its response so that the United Nations Human Rights Committee can make observations and recommendations for the implementation of our rights to self-determination in Canada.
4. We recommend that UNSR Anaya condemn the on-going colonization of Indigenous Peoples in Canada through territorial dispossession. Indigenous Peoples live on Indian Reserves that equal 0.2% of our traditional territories and in poverty throughout Canada. This means that Canada and the provinces unilaterally control 99.8% of our territories without our consent and exclusively benefit from our lands and resources. We further urge UNSR Anaya to explain to the United Nations Human Rights Committee that we need long term sustainable pressure on Canada to reach resolution of territorial and jurisdictional issues as we continue to face unilateral development of our territories, lands and resources without our free, prior and informed consent. We do not receive the mandatory remuneration for the use of our lands, territories and resources. Canada and the provincial governments continue to violate our human rights by continuing to deny our underlying title and jurisdiction to our territories, lands and resources.
5. We urge UNSR Anaya to concur with former Special Rapporteur Stavenhagen’s finding that persistent disparities continue between settler Canadians and Indigenous Peoples. This fact makes Indigenous Peoples dependent upon Canada. When our peoples get out on the land to protect it, they are oppressed, subjected to expensive court processes and persecution, unnecessary police surveillances and arrests and even the militarization of our land. We urge UNSR Anaya to condemn the ongoing violation of our human and Indigenous rights that result in systemic poverty, discrimination, consistent disparities and criminalization.
6. We recommend that UNSR Anaya find that Canada’s lack of recognition and affirmation of Aboriginal Title and Rights is a human rights violation and a violation of our right to self-determination.
7. We urge UNSR Anaya to pay heightened attention to Indigenous Peoples not negotiating under Canada's current Comprehensive Claims Policy and current processes since they are most vulnerable to permanent and immediate impacts due to the government's refusal to directly engage with them on land rights and matters outside of the policy.
8. We further urge UNSR Anaya to find Canada's Comprehensive Claims Policy in violation of international human rights standards in accordance with the concluding observations of numerous by UN Human Rights bodies and previous UNSR Stavenhagen who found it to result in de facto extinguishment of Aboriginal Title.
9. We urge UNSR Anaya to further study the macro-economic aspect of Indigenous rights and how it can be protected to ensure that Indigenous Peoples can participate in broader economic and environmental matters.
10. We urge UNSR to engage in independent critical analysis and not take agreements, such as reconciliation agreements, at face value, but analyze them in regard to the failure of Canada to recognize indigenous rights and implement Indigenous Peoples right to self determination. These agreements form part of Canada's risk management strategy and undermine Indigenous rights, they do not recognize our inherent rights and jurisdiction but lead to the assimilation of Indigenous Peoples by incorporating them under federal and provincial policies and processes.
11. We urge UNSR Anaya to acknowledge the efforts by Idle No More, Defenders of the Land, grassroots organizations and Indigenous Peoples to protect the land and indigenous jurisdiction often at great personal cost, especially when faced with criminalization for exercising their rights.
12. Finally we look to UNSR Anaya to bring a conceptualization based on the foundational right to self-determination to Canada and show how the promise of recognition of Aboriginal and Treaty Rights under s. 35 of the Canadian Constitution can be fulfilled, in part, by implementing the Indigenous right to self-determination on the ground.
A. Description of the Aboriginal Title Alliance
On June 7, 2013 the Aboriginal Title Alliance requested a meeting with Professor James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples during his official visit to Canada, October 7-15, 2013.
The Aboriginal Title Alliance is the network of Indigenous Peoples who have Aboriginal Title and Rights to their Indigenous traditional territories and refuse to negotiate with the Canadian government under its current Comprehensive Land Claims Policy. A number of UN Human Rights Bodies have found this policy to be in violation of international human rights standards, because its current "modification" and "non-assertion" models will result in the de facto extinguishment of Aboriginal Title and Rights.
B. International Involvement
Indigenous Peoples from Canada have been involved at the international level for many decades. Just among the Secwepemc people in British Columbia, Chief William Parrish from Neskonlith went to London, England in 1926 to protest the non-recognition and implementation of their land rights by the colonial government. Grand Chief George Manuel founded the first international indigenous organization, the World Council of Indigenous Peoples (WCIP) in 1975, which has been recognized by many contemporary international leaders as a precursor to the present international Indigenous institutions. The late Elder Irene Billy accompanied by Ska7cis Manuel have raised land rights issues, including the expansion of Sun Peaks resort without the prior informed consent of Secwepemc People, at the 2005 United Nations Human Rights Committee meeting. Secwepemc leaders were also organizers of Special Rapporteur Rodolfo Stavenhagen’s Unofficial Visit to Canada in 2003. Special Rapporteur Stavenhagen visited Sun Peak Resort and met with other activist groups. Secwepemc people have been active in the North American Indigenous Peoples Caucus (NAIPC) at the U.N. Permanent Forum of Indigenous Issues. The U.N. Special Rapporteur Anaya should be reminded that Indigenous peoples have always looked to the international community for justice when we cannot get justice here in Canada.
III. RIGHT TO SELF-DETERMINATION
A. Our Inherent Right
As Indigenous Peoples, we are the original peoples of our territories. In our own language we call ourselves the people of the land, our names tell us where we come from. We have inherited our land from our ancestors and we have the responsibility to govern our territories. Our birthright is inalienable and cannot be transferred or taken from us. We are one with the land.
As Indigenous Peoples, we have the right to self-determination. This means we are entitled to freely and independently determine our own political, legal, economic, social and cultural systems without external interference. As Indigenous Peoples, we have the right to make decisions about our political status and development according to our own beliefs, world views, priorities, traditions and aspirations for the future. We possess the inherent power to govern our territories and ourselves. International Law recognizes that, as Indigenous Peoples, we have the collective right to self-determination. (Art. 1 ICCPR/ICESCR and Art.3 UNDRIP) As Indigenous Peoples, our political status is equal to all other peoples in the world.
Our political and legal status as Indigenous Peoples predates contact with Europeans. It supersedes any assertion or assumption of sovereignty by states such as Britain or Canada. We have territorial integrity and sovereignty, but unlike States our legitimacy is not based on colonial doctrines. This means that the Canadian State must respect our internationally recognized right to self-determination and obtain our free, prior and informed consent before interfering with our political status and our economic, cultural and social rights.
Yet in the Canadian context, especially in British Columbia, our right to self-determination and our basic human rights have been transgressed and denied through deliberate colonial laws and policies. As Indigenous Peoples, we remain colonized and this has and continues to wreaked havoc on our traditional lands and governance systems.
As Indigenous Peoples, we have been active in bringing these human rights violations to world bodies in search of international remedies. In order to understand our recommendations, it is important that we set out the history and the current state of Indigenous Peoples – Canadian relations.
IV. CANADIAN CONSTITUTIONAL FRAMEWORK AND THE RIGHT TO SELF-DETERMINATION
A. Doctrine of Discovery and Colonial Law in Canada
The primary claim made by Canada to Indigenous territories is based on the colonial legal theory of the Doctrine of Discovery and terra nullius. These colonial concepts and legal fictions were used to try to justify Europeans confiscating land from Indigenous Peoples. Canada's legal system is based on these legal fictions with the federal and provincial governments claiming mutually exclusive jurisdictions over our lands and resources.
As Indigenous Peoples, we are seeking redress under the universal human rights standards and the universal the right of all peoples to self-determination. The UN has the responsibility to oversee implementation of that right. As Indigenous Peoples within Canada we are oppressed peoples because our rights to govern our territories and ourselves and to develop our own economies has not been recognized and implemented by Canada.
The United Nations in its resolution on granting of independence to colonial countries and peoples in 14 December 1960 declared that:
Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the development of international economic cooperation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace,
Although the Declaration and Articles regarding decolonization were at the time limited in their application, they clearly stipulated a commitment of the community of nations to decolonization. Indigenous Peoples have the right to self-determination and decolonization and these rights are now recognized in the UN Declaration on the Rights of Indigenous Peoples. Countries like Canada, the United States, Australia and New Zealand, the four governments that initially voted against the United Nations Declaration on the Rights of Indigenous Peoples, dispossessed Indigenous Peoples of their territories and then tried to assimilate them with limited or no success. They have still not taken the necessary steps to recognize our rights. Indigenous Peoples in Canada can only escape this colonial relationship and the political and economic oppression that has defined it, by asserting their right to self-determination.
B. British North America Act 1867: Canadian Colonialism
The first constitution of Canada was the British North America Act, 1867 (BNA Act 1867), which remains in force as the Constitution Act (1867). It sets out the division of powers between the federal and provincial governments. Indigenous Peoples, and our jurisdiction were excluded from this document. All law-making powers and control of every square inch of Indigenous territories were distributed between the federal and provincial crowns of Canada. This dispossession of our territories immediately impoverished us and made us dependent on Canada. The BNA Act 1867 put provinces in control of local matters and land management, making them the direct adversaries of Indigenous Peoples in regard to access to the land and resources. The provinces have no interest in sharing our resources fairly, consequently Indigenous Peoples have been impoverished, generation after generation.
In addition, the BNA Act, 1867 and federal legislation made Indigenous Peoples wards of the State. Under the Canadian Constitution, we become the responsibility of the federal government under section 91 (24) Indians and Lands Reserved for Indians. Our peoples suffered being removed from our territories and put on Indian Reserves, while our children were taken from our families and sent to Indian Residential Schools. This Canadian State action meets the international law definition of genocide. To eradicate the state of colonial dependency we currently live in, we must resist Canada’s efforts to assimilate us and continue our common struggles to be self-determining peoples.
C. Patriation of the Canadian Constitution
The Canadian Constitution remained under the formal control of the British Parliament until the 1980s. In 1982, it was patriated to Canada and as a result of intense grassroots lobbying by Indigenous peoples, Britain required that Aboriginal and Treaty Rights be “recognized and affirmed” by Canada and the provinces under section 35 (1) in the new Constitution Act. Canada was also required to conduct several constitutional conferences on Aboriginal matters to give real mutually agreed content to our rights:
Part IV of the Constitution Act 1982, as originally enacted, reads as follows:
"37. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.
(2) The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of
Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.
These First Ministers Conferences were a failure because there was no motivation or impetus for the Prime Minister and the Premiers to reshape Canada to include Indigenous Peoples. It was clear from these meetings that the Prime Minister and the Premiers felt these conferences could fail and that our constitutional rights and interest could be swept under Canada’s constitutional carpet with the excuse that these issues could be resolved through the courts. At the same time, it was obvious that the courts could never achieve this because the very fundamental change needed to decolonize Canada is beyond the domestic capacity of the Supreme Court of Canada to impose. (Although as we shall see later in this brief, the courts have been actively flagging the need for the executive branch to address this issue.)
It is clear that the failure of Canada to come to agreement on the implementation of the constitutional rights of Indigenous Peoples and our jurisdiction is creating serious unrest amongst Indigenous Peoples and spawning grassroots movements like Idle No More. This unrest is causing economic uncertainty in Canada. It is likely to result in serious physical conflicts between government, industry and grassroots Indigenous Peoples. It is also clear that the courts do not have the legal capacity to address all the outstanding issues that exist between Canada and Indigenous Peoples. The courts' capacity is much more narrow and is intended to resolve specific disputes under a larger more comprehensive constitutional arrangement.
It is therefore imperative that the UN Special Rapporteur on the Rights of Indigenous Peoples, the United Nations Human Rights Committee and other human rights bodies pay ongoing attention to how Canada implements Article 1 of International Covenant on Civil and Political Rights vis-à-vis Article 3 in the Declaration on the Rights of Indigenous Peoples. Indeed these two Articles must be read together in order ensure peace and harmony between settlers and Indigenous Peoples in a new Canada.
D. International Principle
In 1966, the international community formally recognized the Right to Self-determination in common treaty Article 1 of two key human rights instruments – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR):
1) All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3) The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right to self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
In 1984, the United Nations expressed its concerns regarding the lack of state reporting and provision of adequate information on compliance with Article 1: Self-determination. To meet state obligations, the United Nations Human Rights Committee in its General Comment stated:
3. Although the reporting obligations of all States parties including article 1, only some reports give detailed explanations regarding each of its paragraphs. The Committee has noted that many of them completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws. The Committee considers it highly desirable that State parties’ reports should contain information on each paragraph of article 1.
E. UN Human Rights Committee questions to Canada regarding right to self-determination
Twenty-one years later, in 2005, the United Nations Human Rights Committee specifically asked Canada about the implementation of Article 1 in relation to Indigenous Peoples during Canada’s 4th Periodic Report. Canada’s response was that its concept of self-determination was evolving within the context of negotiations on the draft declaration on Indigenous rights:
8. The Government of Canada acknowledges the Human Rights Committee’s request for further explanation of the elements that make up Canada’s concept of self-determination as it applied to Aboriginal Peoples. As the Government of Canada’s concept of self-determination as it may be applied to Aboriginal Peoples is continuing to evolve in relation to its ongoing participation in the UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples and other international fora, the Government of Canada will present information on this specific issue at the oral presentation of this report. (Canada’s 5th Periodic Report (October 2005)
In 2005, the UN Human Rights Committee asked Canada to respond to a “list of issues” regarding Self-Determination and Indigenous Peoples:
1. Please provide information on the concept of self-determination as it applied to Aboriginal Peoples in Canada, including the Métis people, as promised in paragraph 8 of the fifth periodic report (previous conclusions (CCPR/C/79/105), para.7).
2. Please be more specific about the new approaches adopted at federal level when negotiating comprehensive land claims agreements with Aboriginal Peoples. What precisely are the legal and practical differences between, on the one hand, the “modified rights model” and the “non-assertion model”, and on the other hand, extinguishment of land rights? Please also inform the Committee about the practices of provinces and territories in this regard, what is the policy regarding past extinguishment of land rights, such as those of the Innu People (Fifth periodic report, para. 186; previous conclusions, para. 8)?
3. What steps have the federal, provincial and territorial governments taken to promote the equal participation of Aboriginal women in the negotiations of self-government agreements, treaties, and any agreement relating to Aboriginal people?
The United Nations Committee is aware of Canada’s obligations under Article 1 to deal with Indigenous Peoples’ right to self-determination. The Committee is not fully satisfied with
Canada’s models that deal with land rights that result in de facto extinguishment. Canada provided a highly unsatisfactory response to these issues.
F. Canada’s Response
In October 2005, Canada made the following presentation to the United Nations Human Rights Committee:
“The purpose of this response is to discuss the application of the right to self-determination to indigenous peoples living within democratic states, and the issues arising from the implementation of such rights, for those states and indigenous peoples.”
Canada’s response also discussed its view of the right to self-determination in international law in relation to who constitutes a “people” for the purposes of self-determination. Canada did not reach any conclusions on these topics other than to put forward its belief that the evolving understanding of the right to self-determination includes a right for groups living within existing states which qualify as peoples under international law that respects the political, territorial and constitutional integrity of the State. Canada concluded its response by stating it had special programs for Indigenous Peoples and marked its participation in the draft declaration on the rights of indigenous peoples, in particular the development of a concept for self-determination:
2. The Government of Canada notes that whether implementing minority rights, a policy recognizing that Aboriginal people have rights of self-government, or a right of
self-determination, the practical questions raised are not dissimilar. How can groups, living in an existing democratic state, fulfill the economic, social and cultural objectives of the group, while being part of the sovereignty of the state? Through programmes and policies and special measures, the Government of Canada attempts to support this objective in the domestic context, and through participation in the UN Working Group on the Draft Declaration contributes to development of international law on this point.
In 2005, the UN Human Rights Committee could not make any observations and recommendations regarding Canada’s response because the outstanding question of self-determination was part of on-going discussions at the Working Group on the Draft Declaration on the Rights of Indigenous Peoples. Canada’s 2005 position on self-determination was not accepted by most of the nations of the world in 2007 when Article 3 of UNDRIP came into existence.
In 2007, Article 1 on Self-determination of the ICCPR and ICESCR, was officially recognized in the indigenous context by the international community (excluding Canada, United States,
Australia and New Zealand) in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP):
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Canada opposed UNDRIP until November 2010, when it finally endorsed the Declaration. However, this did not mean that our rights to self-determination were recognized, affirmed or implemented by Canada at that time. This remains the case to date.
Conflict still exists about the conceptual understanding of what self-determination means. In 2005, Canada told the United Nations Human Rights Committee that its population has the right to self-determination, and that Indigenous Peoples’ right to self-determination can be included and controlled inside that population. As Indigenous Peoples, we have our own distinct status as peoples and we each have the right to self-determination, separate from state populations.
Pressure must be applied by United Nations human treaty right bodies like the United Nations Human Rights Committee to follow up on outstanding issues regarding the right to self-determination as it relates to Indigenous Peoples in Canada. Without the achieving
self-determination, we as Indigenous Peoples in Canada remain colonized, oppressed and forcibly dependent on Canada. Since 1960, the United Nations has identified colonialism and the subjugation of peoples as violations of human rights and contrary to the UN Charter, world peace and cultural development. (G.A. Resolution 1514)
What is needed is a mutually acceptable balance between Indigenous Peoples and settler governments. Indigenous peoples must fully participate and agree to how self-determination can be achievable. This is the price that settlers must pay when moving into someone else’s territories. Canada cannot unilaterally dictate and decide how Article 1 and Article 3 is given meaning, interpreted, applied and implemented. Indigenous Peoples must consent to how their respective self-determining rights are to be exercised at international and domestic levels of decision-making regarding their affairs. Decolonization in Canada must be also measured against Canada’s capacity to meet its constitutional obligations to recognize and affirm our rights on the ground. This is not happening in Canada and it is imperative that the Special Rapporteur brings this fact to the attention of the United Nations human right treaty bodies and the General Assembly.
Indigenous Peoples do have a right to self-determination like all other peoples. The fact that we are trapped inside a settler state does not preclude us from self-determination. It just makes it more difficult to achieve. The persistent poverty that Indigenous Peoples have been enduring is proof that the existing system does not work. Indigenous Peoples have become beggars in our own lands and international redress is not only warranted, but it is necessary if the Canadian State is to be compelled to confront its internal colonialism and to remedy the damage it has done to Indigenous peoples.
V. CANADA'S POLICIES REGARDING LAND RIGHTS
A. Canada's Policies
Along with expressing dissatisfaction about Canada’s failure to address the rights of Indigenous peoples to self-determination, the United Nations Human Rights Committee 2005 report was not satisfied with Canada’s models that deal with land rights that result in de facto extinguishment.
The Canadian federal government's two main policies in regard to territorial indigenous rights are the Comprehensive Land Claims Policy and the Self-Government Policy. The Comprehensive Claims Policy employs a "modification" and "non-assertion" approach that results in the de facto extinguishment of Aboriginal Title. This policy has been found in violation of international human rights standards by a number of UN Human Rights bodies. In British Columbia, this policy is currently being implemented through the British Columbia Treaty Commission Process (BCTC). In this process, Canadian provincial and federal negotiators have strict mandates to implement the policy and negotiate agreements that result in delegated jurisdiction (similar to municipalities) for aboriginal peoples, rather than implementation of Aboriginal Title and Rights and indigenous jurisdiction.
Canada’s self-government policy is called the “inherent right to self-government” policy. This government policy does not implement a broad indigenous right to self-government, let alone self-determination. It permits only limited powers over specific areas, while entirely excluding others. These are just some of the areas that are explicitly excluded from the scope of any negotiations:
Other National Interest Powers: management and regulation of the national economy, maintenance of national law and order and substantive criminal law, protection of the
health and safety of all Canadians; federal undertakings and other powers, including: broadcasting and telecommunications; aeronautics; navigation and shipping; maintenance of national transportation systems; postal service; census and statistics
The land extinguishment policies and the exceedingly narrow interpretation of the inherent right of Indigenous people to govern themselves that successive Canadian governments have pursued have been sharply criticized not only by Indigenous peoples but by Canadian courts.
The legal landscape of Canada was dramatically changed by a decision of the Supreme Court of Canada on December 11, 1997, when it recognized Aboriginal Title “as a right to the land itself.” The Delgamuukw decision, written primarily by Chief Justice Antonio Lamer, now provides Indigenous Peoples from unceded Aboriginal Title territories with a strong legal foundation and consequently, an historic opportunity, to attain the justice that our ancestors have been struggling for centuries to achieve.
The 2004, the Supreme Court of Canada Haida Nation decision also changed the legal landscape by establishing the legal principles around the Crown’s Duty to Consult and Accommodate Aboriginal Rights and Title on an interim basis until the matter is resolved in a more permanent manner through agreement, treaty or litigation.
Up to now the federal government has refused to change its Comprehensive Claims Policy, regarding land rights, to be consistent with the Delgamuukw decision or even more recently the Haida decision.
The previous attempt by AFN to change the Comprehensive Claims Policy was through the AFN Delgamuukw Strategic Implementation Committee (DISC), but this AFN Committee was a victim of internal AFN politics when Matthew Coon Come dissolved it when he became National Chief in 2000. Matthew Coon Come is from a Modern Treaty group that agreed to extinguish their Aboriginal Title in 1975.
It is important to note here that when it comes to Comprehensive Claims Policy Reform there are differing interests among Indigenous Nations across Canada; the members of the Aboriginal Title Alliance are in the first category – Aboriginal Title Holders who are not in negotiations.
But there are also actively negotiating Nations, those with Pre-Confederation Treaties, Indigenous communities which were non-parties to treaties, a Modern Day Land Claims Agreement Coalition and those with the so-called Numbered Treaties. It is too complex to describe all of the different treaty and non-treaty relationships Indigenous people have with Canada here, but it is arguably the Indigenous Peoples who are refusing to negotiate under the current system who have the strongest position on Aboriginal Title and Rights and this is the category of the Indigenous Peoples associated with our Aboriginal Title Alliance.
Unfortunately, the federal government’s priority is to accelerate the settlement of Final Agreements with the Actively Negotiating Nations and it intends to use all Final Agreements reached with the Actively Negotiating Nations as precedents against Indigenous Nations Not Negotiating.
The last time the federal government reviewed the Comprehensive Claims Policy was in 1985 when the Coolican Report was issued. At the time the only groups the federal government listened too were the Actively Negotiating Nations. The Harper government has the same position now.
There was a brief hope in January 2012 that the government might reconsider its Comprehensive Claims extinguishment policy. During a formal Crown-First Nation Gathering in January 2012, one of the outcomes was a joint commitment
....to ensuring federal negotiation policies reflect the principles of recognition and affirmation mandated by Section 35 of the Constitution Act, 1982 and advance certainty, expeditious resolution, and self-sufficiency.
But hopes were dashed three months later, in April 2012, when at a meeting with the AFN Comprehensive Claims Policy Reform Working Group, Jean Francois Trembley, Assistant Deputy Minister of Treaties and Aboriginal Government told the AFN that he had no mandate to change the federal Comprehensive Claims Policy despite what the Crown-First Nations Gathering outcomes were.
On September 4, 2012, the federal government let fall any pretence of seeking compromise or reform of its extinguishment polices when it announced the “results-based” approach to Modern Treaty (Comprehensive Claims) and Self-Government Agreements. Henceforth, the federal government would only deal with bands, which in effect agree to surrender before the negotiations continue. To be included in the future negotiations bands would be required to:
Accept the extinguishment (modification) of Aboriginal Title;
Accept the legal release of Crown liability for past violations of Aboriginal Title & Rights;
Accept elimination of Indian Reserves by accepting lands in fee simple;
Accept removing on-reserve tax exemptions;
Respect existing Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);
Accept (to be assimilated into) existing federal & provincial orders of government;
Accept application of Canadian Charter of Rights & Freedoms over governance &
institutions in all matters;
Accept Funding on a formula basis being linked to own source revenue;
Other measures, and accept becoming Aboriginal municipalities.
The Prime Minister’s priority remains the acceleration of final settlements with the Actively Negotiating Nations under guidelines that ensure the extinguishment of Aboriginal title and rights.
VI. ONGOING PROCESSES AND POLICIES
It is imperative to understand that Canada position is to basically keep all the colonial structures it operated under when it was a part of Britain. Under the British North America Act 1867 only British property rights and sovereignty mattered. Indigenous Peoples are still subject to that same kind of top down approach to programs, services and funding because Canada has not taken its responsibility to recognize and affirm Aboriginal and Treaty Rights seriously.
The Canadian Constitution was patriated in 1982, but Canada has failed in implementing its obligations toward Indigenous Peoples under the new constitution. Indeed, Canada’s policy is still basically to terminate Indigenous Peoples.
Right now the balance of power is on the federal and provincial governments side. Indian Reserves in Canada only measure 0.2% of Canada and 99.8% is under federal and provincial power and control. This is an unfair and unjust distribution of power and resources and must change in favour of Indigenous Peoples. Exclusive areas for Indigenous Peoples must be substantively increased from 0.2% of Canada. Furthermore, land must not only vest in the Crown title but also vest in Aboriginal and Treaty Rights. This would create the economic framework for Indigenous Peoples to rebuild their Indigenous economies.
Unfortunately, the federal government does not want to substantively change their Comprehensive Land Claims Policy. In fact even the notion that Indigenous Peoples have to claim our own land back is absurd. It is clear that the courts have recognized Aboriginal and Treaty Rights but these legal findings have gotten no support from the Canadian and provincial governments. The federal Comprehensive Land Claims Policy is out dated and inconsistent with the more recent findings of the Supreme Court of Canada. Canada has been told by the United Nations that it cannot extinguish Indigenous proprietary rights in any settlement agreement. The Canadian government cannot be permitted to continue to operate outside of its own laws and outside of international law.
B. Senior Oversight Committee
The current state of affairs involves yet another attempt by the Indigenous leadership to deal directly with the federal government on a range of issues. This process was forced on the government by the rise of the Idle No More movement that swept across Canada in the fall and winter of 2012-13 and continues to create waves in the communities.
As a result of the Idle No More agitations a meeting between the AFN leadership and the Prime Minister was hurriedly arranged on January 11, 2013, in Ottawa as a follow-up meeting to the Crown-First Nations Gathering of January 24, 2012.
During the January 11th meeting AFN National Chief Shawn Atleo presented an 8 point position to the Prime Minister who declined to act on most of the points, except for the request of a “high level” process with the creation of the Senior Oversight Committee for 1) Treaty Implementation and 2) Comprehensive Claims
The Senior Oversight Committee is composed of federal and AFN representatives and its Mandate:
a) Identifying specific areas/elements of Canada’s CCP that are impeding progress in negotiations and in achieving reconciliation and reaching agreements, including final treaty agreements, and may require reform.
b) Examining a broad range of reconciliation options, other than reaching final treaty agreements; and
c) Considering the use and establishment of a joint technical working group and/or sub-committees to, inter alia, produce discussion papers, and identify options for solutions in respect of specific policy issues.
Time Frame: The CCSOC will remain in effect until December 1, 2013, unless otherwise decided by consensus of the CCSOC and with concurrence of the Prime Minister and the
This Mandate and Timeframe of SOC will result in no substantive change to the existing Comprehensive Land Claims Policy. The Membership, Mandate and Timeframe do not have the capacity to create fundamental change in government policies regarding Aboriginal and Treaty lands across Canada. That is why they are included in this Report. We know that the Canada will use SOC to try and sideline efforts to discuss substantive issue regarding Canada’s Comprehensive Land Claims Policy with United Nations Special Rapporteur. The United Nations is urged to carefully examine the domestic strategies of Canada because they are all designed to maintain the existing colonial relationship Canada has with Indigenous Peoples.
Canada must abandon the colonial objective of “extinguishment and assimilation” of Indigenous Peoples that the BNA Act 1867 created and imposed. Canada must now adopt policies that will “recognize and affirm” Aboriginal and Treaty Rights as obligated in the Canada Act 1982. The Aboriginal Title Alliance believes that the Canadian government is not going to fundamentally change its policy from extinguishment to recognition of Aboriginal and Treaty Rights. The level of discussion mapped out by the SOC is too limited and the discussions are taking place only with Indigenous Peoples who are already negotiating with the federal government under the extinguishment process. There is no effort to discuss changing the policy with Indigenous Peoples who have decided not to negotiate under the existing Comprehensive Land Claims Policy.
It is important that the present extinguishment policy must be stopped immediately and an alternative policy put forward in a timely manner. The present policy is unsuccessful because negotiators and local leaders know the rightful titleholders will not endorse the deals. In fact the existing policy has been very expensive in terms of time and money. Negotiations have been taking place over the last 21 years and cost over a billion dollars of which $500 million dollars is borrowed by the impoverished Indigenous Peoples.
VII. PERSISTENT DISPARITY = SYSTEMIC RACISM
A. Colonialism against Indigenous Peoples in Canada
Former UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous Peoples, Rodolfo Stavenhagen, reported to the United Nations General Assembly on his Official Visit to Canada, in September 2005. One of his primary findings was that “persistent disparities” existed between Canadian settlers and Indigenous Peoples:
1. During his visit to Canada, the Special Rapporteur noted the persistent disparities between aboriginal Canadians and the rest of the population with regard to the progress achieved in areas such as access to basic social services, and collected information about disputes between the various levels of government and aboriginal people concerning rights to land and natural resources. Poverty, infant mortality, unemployment, morbidity, suicide, criminal detention, abuse of women and child prostitution are issues of particular concern to the communities. The data collected during the visit showed that, despite efforts to remedy the situation, educational attainment, health standards, housing conditions, family income and access to economic opportunity and to social services are much worse among aboriginal people than among other Canadians.
It is important to note that this persistent disparity between Canada and Indigenous Peoples is due to an ongoing colonial relationship between the settler government and Indigenous Peoples. The systemic poverty that Indigenous Peoples experience is simply because Canada has claimed 100% of all Aboriginal and Treaty territory and law making and fiscal power over them.
Canada’s colonial policy is to claim all land from Indigenous Peoples and assimilate us, under existing programs and services. The Special Rapporteur noted that Canada is making a commitment to ensure that Canada’s prosperity will be shared with Indigenous Peoples.
1. Canada’s commitment to ensuring that the country’s prosperity is shared by aboriginal people is encouraging. The Government is devoting a large number of programmes and projects, together with considerable financial resources, to achieving this goal. Ever since colonial times, Canada’s indigenous peoples have been progressively dispossessed of their lands, resources and culture, a process that has led them into destitution, deprivation and dependency. Current negotiated land claims agreements between Canada and aboriginal peoples are intended to provide certainty and predictability, but require aboriginal people to waive certain rights in exchange for specific compensation packages, a situation that has led in several instances to legal controversy and occasional confrontation. In his report on Canada, the Special Rapporteur makes a number of recommendations intended to help the parties to bridge the existing gaps in areas such as access to basic social services.
The current UN Special Rapporteur on the Rights of Indigenous Peoples needs to understand that regardless of how Canada states that the Canadian system is open and indiscriminate; the reality speaks for itself and shows that Indigenous Peoples rights are not being implemented. Indigenous territories in Canada are very rich. It is therefore not justifiable that Indigenous Peoples remain poor. It is clear that all the government accessibility and programs and services have done nothing to correct this disparity. Indigenous Peoples cannot be blamed for their poverty simply because the land they own is controlled 100% by Canada and its provinces. Eradicating this form or manifestation of colonialism is what the Indigenous Peoples' struggle in Canada is all about. The application of self-determination in Canada is one of the key conflicts that needs to be mutually addressed and agreed to between Canada and the Indigenous Peoples in order to root out the cause of the persistent disparity that presently exists. This will require a fundamental change in Canada’s analysis and understanding of colonialism. Canada raised a number of questions regarding self-determination as it applies to Indigenous Peoples but it admitted that some Indigenous Peoples living within an existing State could be eligible for self-determination.
1. The Government of Canada recognizes that there may be collectivities, within the overall population of a State, that may meet the criteria of a “people” at international law and who have a right of self-determination under common Article 1 of the Covenants. The Government of Canada recognizes that some indigenous collectivities may meet the criteria to qualify as “peoples” at international law, on the same basis as other collectivities qualify as peoples.
It is clear from the October 2005 paper that Canada was staying away from recognizing Indigenous Peoples as Peoples under international law and that nothing has been done to implement our right to self-determination. Canada talked about us as being “Indigenous collectivities”, but they did not recognize us all as Peoples with the full right to self-determination.
Canada, by not getting agreement from Indigenous Peoples based on recognition and affirmation of Aboriginal and Treaty Rights, does not have comprehensive or legitimate territorial integrity. Canada cannot simply get the colonial approval of Britain to take over Aboriginal and Treaty Territories. Canada must obtain recognition from Indigenous Peoples, based on the recognition of our Aboriginal and Treaty territories. It is the mutual agreement between settlers and Indigenous Peoples that is the only way to eradicate colonialism.
Indigenous Peoples cannot ask the settlers to return to their homeland any more than the settlers can continually deny the right of Indigenous Peoples to their territories and self-determination. How Canada and Indigenous Peoples define and measure self-determination will create a new Canada not based simply on the Colonial Doctrines of Discovery but also on recognition and affirmation of the territorial rights, history, values and culture of Indigenous Peoples. These parameters are not outside Canada’s constitutional and legal capacity to work out. It is really a question of political will. We know from experience that Canada will need some extra pushing like that provided by the Sandra Lovelace case. Canada has become too accustomed to the privileges of the status quo. It is time for Canada to take steps away from its colonial underpinnings and recognize and implement Aboriginal and treaty rights as they have been instructed to by their own Supreme Court.
VIII. ECONOMIC DIMENSION OF SELF-DETERMINATION
A. Indigenous Economies
The right to self-determination encompasses the right of Indigenous Peoples to freely pursue their economic, social and cultural development. The Indigenous Network on Economies and Trade (INET) is involved in seeking recognition of Indigenous economies and is specifically interested in having the underlying proprietary rights of Aboriginal and Treaty Right recognized. Canada and the provinces have been claiming exclusive jurisdiction and proprietary rights over our lands and resources despite the fact that Aboriginal and Treaty Rights are judicially recognized and constitutionally protected.
Indigenous Peoples realize that Indigenous economic rights must be negotiated and mutually agreed to with Canada and the business community. With the unpredictable impact of global warming and reckless support of the oil, gas and tar sand industry, it is imperative that Indigenous Peoples' jurisdiction, including the requirement for indigenous prior informed consent to developments, are recognized and implemented. The sustainable management practices of our Peoples continue and can form the basis for more economically and environmentally sustainable development in Canada. It is also obvious that Canada’s greed and depletion-based economies have over-harvested our fish and our forests and are now wreaking further havoc by mining the tar sands and fracking. This will not stop unless Indigenous Peoples challenge these mainstream economic strategies that create markets for depletion.
Eurocentric commercial-industrial economies are “good while they lasted economies” because as resources get depleted old time resource harvesters reflect back on their younger days, noting that it was good while it lasted. Indigenous Peoples need to get involved in this national and international debate about establishing Price Signals on natural resource and oil and gas extraction. Canada and the provinces are increasingly vacating the field of environmental protection and Indigenous Peoples must take over this responsibility. The economic strategies of Prime Minister Harper will catastrophically impact our grand children. Indigenous Peoples have politically and legally stood up to Canada, the provinces and industry on environmental issues. Balancing the environment and economics is what Indigenous economies are all about.
B. Economic Uncertainty
The failure of Canada to recognize Indigenous territories and rights to lands and resources is creating international economic uncertainty in the global investment community. This economic uncertainty is based on the big discrepancy between how Indigenous Peoples view their land and how Canada also views the same land. It must be pointed out that because of the failure of the First Ministers Conferences on Aboriginal Matters, the Canadian Courts are being saddled with the responsibility to try to reconcile disputed colonial rights and interests inside the British Common Law. The economic uncertainty is directly linked to the fact that the federal and provincial government cannot continue to be granted 100% decision-making power over every square inch of our Aboriginal and Treaty Territories.
Economic uncertainty exists because Canada cannot break away from its colonial past and recognize that settlers must get free prior informed consent from Indigenous Peoples before they can benefit from using our land. Indigenous Peoples have continued to move Aboriginal and Treaty Rights forward constitutionally and legally. It is the federal and provincial governments that are out of step. The industrial and business communities are basically caught in this uncertainty. They know that the federal and provincial governments do not have 100% control over access to Indigenous territories and benefits derived from them and that it is better to have also agreement with Indigenous Peoples. It is this current economic uncertainty that forms the foundation of future economic security for Indigenous Peoples.
C. Secwepemc Reconciliation Framework Agreement
The inconsistency between the governments’ business-as-usual political strategy to stand off the judicially recognized Aboriginal Title and Rights has meant that industry is putting pressure on the government enter into separate agreements with Indigenous Peoples on an industry-by-industry basis.
In regard to the government’s legal responsibility consultation and accommodation the provincial government has been vigorously pursuing “reconciliation” agreements with Indigenous Peoples who are not negotiating under the Comprehensive Land Claims Policy. The real problem with these agreements is that they relieve pressure on the provincial government but do not provide any benefit to Indigenous Peoples. Consultation and accommodation were legally imposed on the provincial government and it is based on the Aboriginal Title and Rights of Indigenous Peoples. Therefore, any negotiations and processes should also benefit the rightful titleholders and not just the few people who may get jobs to work in this area.
The major problem with this process is that it bureaucratizes basic Indigenous land use and occupancy decisions in a one-window process. The reason the province is pushing these agreements is to sidestep dealing with the substantive issues of recognition and affirmation of Aboriginal Title and Rights but also be able to carry on with business-as-usual. These kinds of agreements show that the provincial government is forced to come up with processes to overcome economic uncertainty caused by the fact that Indigenous Peoples do have proprietary and economic rights in their traditional territory.
D. Indigenous Employment Strategy for Mining and Pipelines
It is very obvious that Indigenous Peoples are going to be impacted by mining and pipeline activity in Canada. It is critical that Indigenous Peoples and not just the leaders get acquainted with the impact mining and pipelines are going to have on our lives. Federal and provincial governments want to keep all the fundamental decisions on access and benefit sharing within their federal and provincial law making powers. They do not want to share decision making and benefits with Indigenous Peoples. They will try to limit Indigenous involvement to jobs, business opportunities and revenue sharing.
The Canadian and provincial governments are trying to challenge any opposition to the mining and pipeline industry by investing in employment strategies to get Indigenous Peoples to work for the pipeline and mining industry. Pipelines and mining industries are very dirty industries. Indigenous Peoples have a responsibility to make our own pipeline and mining policies and laws too. Indigenous Peoples need to measure our policies against the policies of industry and the governments. Traditionally Indigenous Peoples economies have always been based on clean energy and making a minimum impact on our land, animals, water and air.
Jobs, business opportunities and revenue sharing should be part of the basis of any economic relationship with Indigenous Peoples and should not be traded for Aboriginal Title and Rights. The real negotiations must be based on the broader economic matters like dirty energy policies and clean energy policies; wild salmon conservation and fish farms; clear cut and selective logging; level of timber annual allowable cut; and mining exploration and environmental mitigation. Aboriginal Title and Rights are dependent upon a clean and natural habitat or Aboriginal Title and Rights could be totally destroyed.
It is important that a big part of addressing the impact of the settlers on the environment is based on Indigenous Peoples standing up for their Aboriginal and Treaty Rights. Indigenous Peoples are very accustomed to thinking about the impact human activities will have on our future generations. This is part of our spiritual relationship with our traditional territories and this is really our qualification for addressing these economic matters.
The mining industry is going to put a lot of pressure on the Chiefs and Councils. Governments and industry in our territory are used to ignoring and overriding Indigenous values and principles under the colonial system. Indigenous Peoples need to stop that kind of racist and arrogant decision-making process. We should be timely in our decisions but we should not feel pressured because the values and principles we are contributing is part of the larger debate regarding global warming.
E. Idle No More and Defenders of the Land
It is important to point out that Idle No More a grassroots response to the lack of substantive progress made by the Canadian government and the establishment Indigenous organizations. Idle No More entered into an agreement with the Defenders of the Land. The Defenders of the Land is a network of Indigenous activists who have taken on struggles based on Aboriginal and Treaty Rights for the last several decades. Idle No More and the Defenders of the Land just had an International Day of Action on October 7, 2013. October 7th was the 250th Anniversary of the Royal Proclamation of 1763. It is important to point out these groups because they do have influence on Canadian politics regarding Indigenous Peoples. There is also a growing support base for Idle No More and the Defenders from other national and international non-Indigenous organizations and activists.
Indigenous Peoples need to decolonize under the framework of Article 1 of the International Covenant on Civil and Political Rights on self-determination. This means that Canada needs to broaden its thinking beyond the colonial restrictions of the BNA Act 1867. The Constitution Express 1980 and the British Lobby in 1981 resulted in section 35 and section 37 be added to the Canadian Constitution in 1982. It is important that Canada approach Indigenous Peoples right to self-determination based on the constitutionally imposed recognition and affirmation of Aboriginal and Treaty Rights and fulfill its obligation to hold formal constitutional conferences until Aboriginal and Treaty Rights are mutually agreed to with Indigenous Peoples.
Aboriginal Title Alliance
2836 B Trans Canada Hwy
Chase, British Columbia, VOE 1M3, Canada
Phone: (250) 319-0688
2836 B Trans Canada Hwy
Chase, British Columbia, VOE 1M3, Canada
Phone: (250) 319-0688
FOR IMMEDIATE RELEASE
ATA ASKS U.N. SPECIAL RAPPORTEUR TO PUT PRESSURE ON CANADA
RIGHT OF SELF-DETERMINATION OF INDIGENOUS PEOPLES
RIGHT OF SELF-DETERMINATION OF INDIGENOUS PEOPLES
(Vancouver, October 10, 2013) The Aboriginal Title Alliance (ATA), which brings together indigenous communities and organizations fighting for the recognition of Aboriginal title and rights, met today with the UN'S Special Rapporteur James Anaya in Vancouver.
ATA representatives told Special Rapporteur Anaya there was a need for long term sustainable pressure on Canada to reach a just resolution on territorial and jurisdictional issues with Indigenous peoples. The ATA brief pointed out that Canada had never properly responded to the Human Rights Committee questions about how it respected the rights of Indigenous peoples to self-determination.
ATA members who were on hand for the meeting mcluded Chief Judy Wilson from the Neskonlith Indian Band, Arthur Manuel, from the Indigenous Network on Economies and Trade, Indigenous lawyer June McCue and Secwepemc Elders Mumie Kenoras and Louie Thomas.
Chief Judy Wilson said that "Canada is holding on to its old colonial stance toward Indigenous peoples and reftising to recognize our rights. This has been condemned by U.N. Human Rights bodies in the past. It is important that the U.N. is aware that nothing has changed in Canada's approach."
Arthur Manuel said they also discussed the fact that Canada has been refusing to reply to the U.N. Human Rights Committee on its policy on self-determination for Indigenous peoples, which is guaranteed by both Human Rights covenants and the U.N. Declaration of Rights of Indigenous Peoples. "We asked Mr. Anaya to support our right to self-determination in his report."
Chief Judy Wilson said that ATA is gaming strength as an organization as bands turn away fi-omthe extinguishmeot treaties offered by the government. ATA recently gained the support of Algonquin Eagle Village, Timiskammg and Wolf Lake First Nations in Quebec and Ontario. The Algonqum Chiefs were not at the meeting but they had previously endorsed the ATA position.
Chief Judy Wilson: 250 320 7738
Arthur Manuel: 250 319 0688 firstname.lastname@example.org
Chief Judy Wilson: 250 320 7738
Arthur Manuel: 250 319 0688 email@example.com