Submission to the 93rd Session
of the
UN Committee on the Elimination of Racial
Discrimination with Regard to Canada’s Failure to Comply
with UN Human Rights
Conventions, Declarations and General Recommendations No. 21 and 23
of the Committee on the Elimination of Racial Discrimination
July 31 – August 30, 2017
Geneva, Switzerland
“He who has robbed another of his property,
will next endeavour to disarm him of his rights to secure that property; for
when the robber becomes the legislator he believes himself secure”.[1]
Synopsis
1.
The Onion Lake Cree Nation, the Tsuu T’ina
Nation and the Lubicon Lake Nation (the Nations) are Indigenous Peoples and
Nations as understood within the international jurisprudence[2],
and as such we declare that we are also a “Peoples” as articulated by the same
jurisprudence. Being understood as a “Peoples” within the international
jurisprudence, the Nations have an inherent right to self-determination,
including, but not limited to, title to our Territories. Such title to our Territories
includes all the natural resources found therein, natural resources that have always
provided us with an economy to sustain and develop our Nations. In addition, our
Territories had aided in defining our respective cultures, identities and existences
as “Indigenous Peoples”.
2.
Accordingly, we assert our Nations’ inherent right
to self-determination, including to have our rights and titles to our Territories
recognized and respected, as well as to freely pursue our economic, social and
cultural development in our Territories. Such inherent right is based on our respective
Nations’ time immemorial presence and connection on and to our Territories, and
the laws given to us by the Manitou (Creator)
in relation to our Territories. Our presence, connection and received laws
created an unbreakable responsibility and ownership to our Territories that
predates British common law conceptions of real property, including the common
law of Canada, and we have never relinquished, ceded, surrendered or otherwise
such responsibility or ownership, as such actions is not within our
understanding.
3.
The Nations further assert that the Canadian
state has consistently imposed its laws, policies and procedures on our Nations
and Territories based on the false and racist premise that our inherent rights
to our Territories and our natural resources are subservient to the Canadian
Crown’s “presumed underlying title” to our Territories and natural
resources. The Nations submit that at its core, the belief in the Crown’s
presumed underlying title is based on racially offensive colonial ideologies
and attitudes that were enshrined in two doctrines used by European colonial powers
to deny Indigenous Peoples’ rights to our Territories; the Doctrine of Discovery and the doctrine of terra nullius. Although the Supreme Court of Canada has recently
stated that the doctrine of terra nullius
never applied in Canada[3],
the Doctrine of Discovery, and its
racially offensive principles and beliefs, continue in Canadian jurisprudence
and political policy to deny our Nations’ ownership and title to our Territories
and our natural resources. (emphasis added)
4.
Adherence to the Doctrine of Discovery as the baseline by which the Canadian state
attempts to reconcile our Nations’ inherent rights is intrinsically not only unable
to provide a fair and just reconciliation as professed by the Canadian state,
but is also a failure by the Canadian state to meet its obligations under the International Convention on the Elimination
of All Forms of Racial Discrimination (hereinafter the “Convention”), the United Nation Committee on the Elimination
of Racial Discrimination’s (hereinafter CERD) general recommendations and
concluding observations, and the United
Nation Declaration on the Rights of Indigenous Peoples (hereinafter the
“Declaration”).
5.
The Canadian state’s continued adherence to the Doctrine of Discovery, its failure to
meet its obligations under the Convention, CERD’s general recommendations and
concluding observations and the Declaration all deprive the Nations’ rights to
ownership and title to our Territories, and thus begs the question put before
the Canadian state by Vice-Chair Noureddine Amir at the CERD’s eightieth
session in Geneva in February 2012 when he asked, “On what legal basis does Canada
claim underlying title to Indigenous lands”? To the present, the
Canadian state has not provided an answer to the Nations or CERD.
6.
Further, despite the Canadian state’s alleged
desire of reconciliation with our Nations, and other Nations of Indigenous Peoples
within Canada, the lasting impact of the false claim to our territories creates
poverty amongst our Nations as the wealth of our Nations is taken by the state
of Canada for their own use. Any
attempts to get our territories back are met with policies and procedures made
unilaterally by the state – all designed to deny us our territories.
The Doctrine of Discovery and Its Application
Within Canada
7. The
details of the Doctrine of Discovery
were aptly put forth by the Apache-Ndé-Nneé
Working Group Shadow Report at the eighty-eighth session of CERD in its
review of the Holy See, and the present report relies on that Shadow Report for
the details historical details of the doctrine. The Nations wish to bring
CERD’s attention to the main principles underpinning the Doctrine of Discovery and how it shaped early laws, policies and
procedures of the European colonizing powers in what is now the Canadian state,
and how its principles and beliefs continue to inform present jurisprudence,
policies and procedures of the Canadian state.
8. The
application of the Doctrine of Discovery
to what is now Canada may be considered a process of the Cross, the Coin and
the Crown, whereby European title to Indigenous lands was sanctioned by
God/Jesus (the Cross), was expanded by the English with the requirement of
occupancy and ritual possession, allowing for English desires to exploit the
natural resources of Indigenous lands (the Coin), so that presently in Canada
the Crown’s underlying title to Indigenous lands is assumed (the Crown). Each
of these stages is briefly set out below.
The
Cross
9.
The Doctrine
of Discovery was the proposed legal means by which European colonizing
states claimed rights of sovereignty, title and trade to vast stretches of
lands they allegedly discovered during the age of exploration. Beginning with
the Spanish and Portuguese states, the Doctrine
of Discovery relied on a series of papal bulls issued by Pope Alexander VI,
the most important of which was the Inter
caetera, after the voyages of Christopher Columbus to justify these
European states’ presumptions of empire on Indigenous lands in North America.
At its root, the Inter caetera
provided that Spain, in order to pursue the “holy and laudable work” of
expanding the Christian world, was given title to all lands discovered that
were not Christian.[4]
10.
The justification for the imposition of European
empire over Indigenous lands in North America began on the belief that
Christianity and its adherents, to wit Europeans, were superior to that of
non-Christians, to wit Indigenous Peoples, and as a result the non-Christian Indigenous
Peoples rights to our lands were nullified thereby justifying and allowing
Christian Europeans to legally claim such lands. Pope Alexander VI, believed to
be Jesus Christ’s representative on earth, sanctioned such Indigenous
nullification and subsequent European justification. Simply put, it was Christian
God’s will that Europeans who followed his Son Jesus Christ, and therefore
being superior to Indigenous Peoples, should have a greater claim to Indigenous
lands.
The
Coin
11.
After initial “discovery” of Christopher
Columbus and other early explorers, then Catholic English and French states
began our explorations into “North America” in the desire to access and exploit
the natural resources of such lands. Aware of the Inter caetera, the English and French expanded on the Doctrine of Discovery so as to not
violate the papal bulls’ edicts granting Spain and Portugal exclusive rights to
North America. Accordingly, legal scholars to English King Henry VII (circa
1493) and Queen Elizabeth I (circa 1580s) added the Doctrine of Discovery whereby legitimate claims of “discovery”
could only be made on lands not yet claimed by any other Christian prince.
Further, actually occupancy and possession of the lands “discovered” was now
necessary, which could be accomplished by the performance of some form of
ritual act, such as planting a flag, burying coins and so forth. In this manner,
England and France could make claim to the northern parts of North America
where neither Span nor Portugal had “discovered”, and thereby take advantage of
the resources found within such lands. [5]
12.
Later English adaptations of the Doctrine of Discovery held that the
principle of terra nullius applied to
Indigenous lands. According to this principle, lands that were believed “empty”
or not occupied by any nation, or which were in fact occupied but not being
utilized in accordance with European standards were open to “discovery” claims.[6] The English utilized this principle to great
advantage in the seventeenth century when its colonial aspirations in North America changed from trade and nomadic resource
exploitation to settled agricultural pursuits. In order to justify such
pursuits, and the need for lands within Indigenous possession, the English re-conceptualized
the idea of property and its ownership, so that the dispossession of Indigenous
Peoples of our Territories was justified by the differences in usage of such Territories.
13.
It was held
that since the Indigenous Peoples allowed our Territories to sit unimproved and
vacant according to English conceptions of property, that the English desire to
improve such lands through agriculture, lumber extraction and so forth allowed
for the justification of the taking of such lands. In this conception, coupled
with the previous principles in the Doctrine
of Discovery, we submit that the English could lay claim and dispossess Indigenous
Peoples of our Territories if:
a) no other Christian European state had already
“claimed” such lands;
b)
possession
or occupancy of the lands had occurred, whether through a ritual act of
possession or otherwise; and
c) if the lands were occupied or possessed by Indigenous Peoples,
English claims to such lands were superior as the use to which the lands were
to be put were superior than those Indigenous uses. [7]
The
Crown
14.
Within the context of the Canadian state, when
England or France “discovered” new lands within North America that were not
claimed by another European Christian state, and rituals of possession were
then performed, the Doctrine of Discovery
held that the Indigenous Peoples, being non-Christian, only had a right to use
and occupation of our Territories, not of title or ownership. In comparison,
the Christian European state gained ownership or title to Indigenous lands
through the “Grace of God”. Although the European state had neither connection
nor presence of occupancy on such new lands, they nevertheless claimed title to
huge swaths of Indigenous lands. By this manner, the European state could claim
title, while at the same time claiming pre-emptive rights against other
European states, and restrict the Indigenous Peoples’ rights to our Territories
to suit European needs.
15.
Within the area that is now the Canadian state,
both England and France utilized these principles to claim and compete for Indigenous
lands and resources. During the 18th century, England and France
battled for dominance over our North American empires, known as the Seven Years
War, which resulted in the defeat of France and Treaty of Paris that provided
England with France’s claims to the areas now part of the Canadian state. In
consolidating its empire in North America, the Royal Proclamation of 1763[8] (hereinafter the
“Proclamation”) was issued.
16.
Primarily,
the Proclamation was issued so as to create the means in which the British
Crown’s subjects were to access Indigenous Peoples’ Territories. Such a process
was necessary as the Indigenous Peoples were in a superior military position,
and to ensure the British Crown’s colonists’ survival, it was necessary to
respect the Indigenous Peoples’ land rights. However, such recognition
only went so far as certain principles of the Doctrine of Discovery were codified within the Proclamation. Specifically, we briefly wish to bring to CERD’s attention the
following provisions of the Proclamation and the corresponding principles from
the Doctrine of Discovery:
“And whereas it is just and reasonable, and
essential to Our Interest and the Security of Our Colonies, that the several
Nations or Tribes of Indians, with whom We are connected, and who live under
Our Protection, should not be molested or disturbed in the Possession of such
Parts of Our Dominions and
Territories as, not having been ceded to, or purchased by Us, are
reserved to them, or any of them, as our Hunting Grounds.”
17.
This provision
clearly sets out that while Indigenous Peoples were recognized as Nations, Indigenous
Peoples’ rights to our Territories were characterized as only being able to use
such Territories, not of ownership or title, which is made clear that such Territories
were the British Crown’s “dominions and territories”. As with the Doctrine
of Discovery, despite Indigenous Peoples occupying or possessing our Territories for millennia, the British Crown
claimed title to such lands while minimizing Indigenous Peoples rights so our Territories,
and making such rights subservient to
the British Crown. Further, this provision also sets out the basic principle
that the Indigenous Peoples maintained our rights of using our Territories
unless they were either ceded to or purchased by the British Crown. Although
the characterization of the Indigenous Peoples rights was incorrect based on
racists ideas of the inferiority of Indigenous Peoples, and our inability to
have title to our Territories equal to that of the English, the principle that
any right, however characterized, cannot be transferred unless there is an
agreement or treaty.[9]
“And
We do further declare it to be Our Royal Will and Pleasure . . . to reserve under Our Sovereignty, Protection, and
Dominion, for the Use of the
said Indians, all the Lands and Territories not included within the
Limits of Our said Three New Governments, or within the Limits of the Territory
granted to the Hudson's Bay Company, as also all the Lands and Territories
lying to the Westward of the Sources of the Rivers which fall into the Sea from
the West and North West, as aforesaid; and We do hereby strictly forbid, on
Pain of Our Displeasure, all Our loving Subjects from making any Purchases or
Settlements whatever, or taking Possession of any of the Lands above reserved,
without Our especial Leave and License for that Purpose first obtained . . . but that if, at any Time, any of the
said Indians should be inclined to dispose of the said Lands, that same shall be purchased only for
Us, in Our name”.[10]
18. Building on the previous
provision, the above provisions set out the principles and process on which the
British Crown, and now the Canadian state, was required to follow when dealing
with Indigenous Peoples and our rights to our Territories. Specifically, again
although wrongfully believing that Indigenous Peoples were inferior and could
not therefore have a greater right to our Territories other than that of use,
the transfer of such rights could only be made to the British Crown.[11]
19. These principles are the basis on
which the Canadian jurisprudence, including such policies and procedures that
derive from such jurisprudence, has developed and continues to exist. As set
out above, the dispossession of Indigenous Peoples of our Territories began as
an activity sanctioned by the Pope, God’s emissary on earth, who provided that
any “Christian Prince” on discovering lands where the people were not
Christian, that it was God’s will that such lands become the property of the
said “Christian Prince” so as to further the churches work.
20. The English and French, not
wanting to run afoul of the Pope’s decrees, but very much wanting to take
economic advantage of Indigenous Peoples’ Territories, modified the prevailing
international legal order such that any non-Christian lands not actually in
possession or occupation of a “Christian Prince” could be claimed, and if there
were Indigenous Peoples on such lands, the Indigenous Peoples use of the lands
were minimized as inferior than those of European use that derived economic
value. Finally, beginning in the 18th century the above previous
principles became “normalized” so that this now normalized state of affairs
minimized and subsumed Indigenous Peoples’ rights to our Territories to that of
the British Crown. Such presumed belief was based on the racial inferior mythos
created to serve early European colonial aspirations and later modified and
espoused to justified a status quo beneficial to the Canadian state.
The Expression of the Principles of the
Doctrine of Discovery Within the Canadian State
21.
The principles from the Doctrine of Discovery have informed, and continue to inform not
only Canadian legislation and jurisprudence affecting our Nations’ Territories,
but also the actions of government in regards to our Nations’ Territories. As a
basis of “Aboriginal” law in Canada, a fundamental and allegedly immutable
principle is that all of our Nations’ Territories, including lands set aside as
“reserved” lands, treaty lands, and lands not subject to treaty, are subject to
the false belief that the Crown has underlying title due to British assertions
of its sovereignty.
22.
These beliefs would have us understand that
through some legalistic form of alchemy, our Nations’ Territories, in which we
have uncountable years of use, occupation and sacred responsibility as provided
by the Creator have been transmogrified so that such use, occupation and sacred
responsibility has been severed and replaced by self-serving ontological
systems of European land ownership that provides for the Crown’s alleged
underlying title. We submit that this belief is not only incorrect and based on
racist ideas of Indigenous Peoples, our cultures, traditions and laws, but also
results in government actions harmful to our Nations and our members, including
our culture, health and survival.
Canadian Legislation
23.
As a point of demonstration, the following
Canadian legislation and Supreme Court of Canada decisions contains sections
that continue and perpetuate the previously noted principles that make up the Doctrine of Discovery:
·
Section
18 (1) of the Indian Act provides that certain of our Territories are “reserves
are held by Her Majesty for the use and benefit of the respective bands for
which they were set apart, and subject to this Act and to the terms of any
treaty or surrender, the Governor in Council may determine whether any purpose
for which lands in a reserve are used or are to be used is for the use and
benefit of the band.” In effect, even those portions of our Territories that
are specifically recognized by Canadian jurisprudence as our Nations are not
owned by us, but by the Crown on our behalf;
·
In the 1997 Supreme Court of Canada’s decision
in Delgamuukw v. British Columbia[12], it was “recognized”
for the first time that the concept of “Aboriginal title” could possibly exist,
however,
with such title was characterized as only “the right to exclusive use and occupation”
and where such “title” could be infringed by other third parties for such
reasons as the “development of agriculture, forestry, mining and hydroelectric
power, the general economic development of the interior of British Columbia,
protection of the environment or endangered species, and the building of
infrastructure and the settlement of foreign populations to support those aims;”
the highlighted portions are clearly an echo of the principles contained with
the Doctrine of Discovery; and
·
In the 2014 Supreme Court of Canada’s decision
in Tsilhqot’in Nation v. British Columbia[13], the principles
found in Delgamuukw were expanded on
but continued with the previous conception our Territories. While this decision
does provide beneficial expression of our Nations’ rights to our Territories,
it nonetheless maintains some aspects of the Doctrine of Discovery that act to minimize our ownership of our Territories,
and subsume our rights to the Crown’s assertion of sovereignty despite the
absence of non-discriminatory manner of such a process. As to this latter
point, the Crown’s assertion of sovereignty is accepted without question as to
how such assertion was accomplished and on what legal basis does such assertion
allow for it to subsume our Nations rights to our Territories that are based on
countless years of being on such Territories.
24.
The above legislation and Supreme Court of
Canada decisions provide an example of the continued expression of the racist
principles of the Doctrine of Discovery
as it relates to our Nations’ Territories. However, our Nations submit that extrapolating
these racist principles provides additional examples of the Canadian state’s
governments actions towards our Nations, Territories and Peoples. Our Nations
wish to bring to your attention the following examples that show the continued
discrimination against the Indigenous Nations and Peoples within what is now
Canada:
·
The Traditional Ecological Knowledge (TEK)
Elders Group[14]
is comprised of Elders who are dedicated to protecting the medicines, plant and
wild life, the water, the fish, and all interdependent life forms of the forest
within our Nations’ Territories. In 2014, the core group of twelve (12) TEK members
gathered through our common outrage for the current state of the environment
within their territory particularly the steady decline of the cohesive natural
resources as a direct result of aerial spraying in our Territories. Since 2014,
the TEK Elders Group has consistently informed the Ontario and Canadian
governments of our concerns regarding such aerial spraying and the damage on
the medicinal and food source plant life, as well as the health
and well-being of the water, soil, birds, fish, amphibians, invertebrates,
humans and other mammals. The TEK has
attempted to share our ecological knowledge with the governments to show the
damage being done by the continued aerial spraying.
However, the governments have
continually failed to heed the TEK Elders Group or accept our ecological
knowledge. The TEK Elders Group submits that the governments’ failure to heed their
warnings or accept their ecological knowledge is primarily based on the cost
efficiencies of the herbicides used for forestry purposes, and that the TEK
Elders’ knowledge is viewed as being inferior in comparison to the selective
use of “western” knowledge. In connection with the Doctrine of Discovery, such reliance on “western” knowledge to the
failure to consider the TEK Elders’ knowledge is akin to the acceptance of the
false belief of the supremacy of non-Indigenous knowledge over Indigenous
knowledge.
The spraying program continues
as the two levels of government: federal and provincial, bat the Elders from
one process to another process without acknowledging their inherent rights to
protect their territory and all the resources that are within their territory.
It is a fundamental denial and racist denial that Indigenous Peoples have any
laws to protect their territory. While the Elders have tried to convey to
various officials including various government ministers that the spraying of
the land is causing harm to all the creation. The government continues to say
that spraying is safe but those doing the spraying are in hazmat suits designed
to protect them against the chemicals being released. Those officials doing the
spraying to do live with the consequences.
·
The Iskatewizaagegan No.39 Independent First
Nation (the Nation) is located within northwestern Ontario on the shores of
Shoal Lake. In 1914, the City of Winnipeg in the adjoining province of Manitoba
built a massive aqueduct right next to the Nation’s community on reserve in
order divert up to 100,000,000 gallons per day to the inhabitants of the city
over 200km away for sanitary and household purposes. In order for the City of
Winnipeg to be granted permission for such a diversion, it was required to
receive permission from the province of Ontario, Canada and the International
Joint Commission (the IJC), an international body created by a treaty between
the United States of America and Canada to regulate shared boundary waters.
As part of the provisions for granting
permission, Ontario required that the City of Winnipeg ensure that “. . .
full compensation be made to the Province of Ontario and also to all private parties whose lands or properties may be
taken, injuriously affected, or in any way interfered with”.
Further, the IJC in granting the requested permission required that “the use and diversion of the waters of
Shoal Lake and of Lake of the Woods for domestic and sanitary purposes by the
inhabitants of the Greater Winnipeg Water District . . . be permitted, subject to the conditions
contained in the statutes and orders in council hereinabove recited . . . that the present approval and
permission shall in no way interfere with or prejudice the rights, if any, of
any person, corporation, or municipality to damages or compensation for any
injuries due in whole or in part to the diversion permitted and approved of”.
Due to the City of Winnipeg’s
diversion of water, the Nation has been unable to economically develop our
reserve community and have been halted in utilizing other portions of our Territories
as the City of Winnipeg has feared that such development and use would degrade
the quality of the water that they are diverting for our uses. Despite numerous
years of attempting to be compensated as required by the Ontario
Order-in-Council and the IJC Order granting the City of Winnipeg permission,
neither the City of Winnipeg, Ontario, Manitoba or Canada have agreed to
negotiate. The Nation submits that the government’s failure to negotiate
compensation as required, and as done to all other parties affected, is based
on the racist belief that the Nation’s rights are valued as lesser than those
other parties, all of which is a logical extension of the principles found
within the Doctrine of Discovery;
·
Similar to the Canadian state’s treatment of
minimizing our Nations’ right to our Territories, the unilateral imposition by
the Canadian state of laws, regulations and policies affecting our Nations and Territories
also minimize our rights as Nations of Indigenous Peoples. Canada’s unilateral imposition
is based on negative racial stereotypes that act to discriminate against us by
denying our inherent right to self-determination. For example, the Financial Transparency Act is but
another example of the Canadian state’s ongoing racial discrimination by its
continued adherence to racists colonial ideologies based on the principles
contained with the Doctrine of Discovery.
The Liberal Government elected in the fall of 2015 has not repealed this
legislation despite a court case ruling against the legislation. Rather the
government has engaged in a process of “putting a questionnaire” online but has
not met with the Nations who are affected by this racist legislation which
takes away our individual rights of privacy. The right of privacy is a
fundamental right enjoyed by all Canadians but not by Treaty Peoples.
Due to such imposition, the
Onion Lake Cree Nation, with successful economic development activities from
oil extraction and other endeavours, was forced to protect its financial
information and economic intellectual property by gaining a non-enforcement
order against Canada. Although all other similarly situated non-Indigenous
economic development operations, that is, Canadian and international corporations,
were not required to divulge their financial information and economic
intellectual property, our Nations were required and forced by threat of
withholding of financial transfers from the Canadian state. By being forced to
provide such information, our Nations were put in a position where our
competitive edge in economic affairs was compromised. Such discriminatory
treatment is linkable to the principles contained with the Doctrine of Discovery, specifically that our Nations, as Indigenous
Peoples, lack the ability to govern our Territories, resources, communities or
our people as other “Peoples” and Nations are capable of accomplishing, and
required the Canadian state to intervene to ensure that our Nations’ leaders
managed our economic resources fairly and honestly;
·
In addition, the imposition of the Financial Transparency Act was held out
to the general public as a means of imposing transparency on our Nations’
governments. However, Canada’s version of transparency was to enforce racial
stereotypes and expose our Nation Peoples to racism and hatred as there was a
perceived idea that our Nations and Peoples are not accountable. The transparency of Canada was to expose our
Nations to the carpet baggers who mined information on the web pages to target
our Nations. The state of Canada further
tried to get “organizations” to give their consent to issues that directly
affect our Nations. Recently, Canada and the Assembly of First Nations (AFN)
signed a Memorandum of Understanding (MOU) without our consent.[15] These processes are orchestrated and
manipulated by the Canadian state for specific purposes. There were lots of
collaborators who were more than happy to play along with the games[16].
What were their rewards? It seems the reward was to get their names in the
media. No thought about the seventh generations and the effect that their
action would have on the rest of the creation. Those governments of Indigenous
Nations who were opposed to the process were branded as uncooperative and
punished for non-compliance.
Such manipulation of Indigenous
Peoples continues unabated. As with
other state governments, the Canadian state has organized their own “group” of
Indigenous Peoples who have been recognized by their political masters to make
“decisions” for all Indigenous Peoples. Controllers have been used by State
governments to enact regressive domestic policies designed to undermine our
Nations rights;
·
Canada announced in the early 1970’s the
intention to build a Mackenzie Valley Pipeline to move natural gas
from the Beaufort Sea (in the high Arctic) down the
Mackenzie Valley to tie into gas pipelines in northern Alberta. The Dene Chiefs in Treaties 8 and 11 were not
consulted about the pipeline. In 1973, the Chiefs led by Chief Francois
Paulette[17],
along with sixteen NWT Dene Chiefs, attempted to file a caveat at the land
titles office in Yellowknife, Northwest Territories to gain a legal
interest in 450,000 square miles (more than a 1,000,000 square kms) of
their Territories. The Chiefs asserted their rights to their Territories, by
virtue of their Dene rights, and sought to prevent the construction of the
proposed Mackenzie Valley Gas Pipeline across their Territories.
The land office was unsure of the filing and referred
the caveat to the Supreme Court of the Northwest
Territories. Justice William Morrow held a six-week hearing process
to establish whether the Indigenous Nations of Treaty No. 8
and Treaty No. 11
had fully understood the meaning of the treaties they had made in 1900 and 1921
respectively. There were hearings were held in a number of Indigenous
communities in the Northwest Territories (some only accessible by airplane),
with some hearings being held in informal settings for the convenience of
witnesses, many of whom were elderly. Justice Morrow took their evidence in
their languages. The witnesses who were alive at the time of treaty making gave
evidence of their first-hand account of the discussions with the Treaty
Commissioner.
Many witnesses testified that they did not believe that Treaty No. 8
and No. 11 extinguished their rights to the land and that the Treaties were
unfulfilled. Justice Morrow [18]agreed
with these witnesses and ruled that the Chiefs had established a case which
resulted in a declaration of prior interest in the 450,000 square miles of
traditional land and to warrant the filing of a caveat. Mr. Justice Morrow also
questioned the cede, release and surrender provisions of the Treaties. Although the ability to register the caveat
was overturned by the Supreme Court of Canada, Justice Morrow's findings in
respect to Aboriginal rights were not overturned.
Despite the findings of Justice Morrow, the Canadian
and provincial and territorial governments in which Treaty No. 8 and Treaty No.
11 cover continue to treat the Indigenous Nations Territories as being ceded,
released and surrendered. Such treatment is based on the presumed superiority
of the Crown’s 100 to 120-year assertion of sovereignty claims over the Indigenous
Nations’ thousand years of connection and rights to their Territories. The Crown’s
presumed superiority can be traced directly back to the principles found within
the Doctrine of Discovery, to wit
European assertion of racial superiority over the Indigenous Nations through
the process of the Cross, the Coin and the Crown as set out earlier in this
submission;
·
The Lubicon Lake Nation are Indigenous Peoples
and Nations as understood within the international jurisprudence having status
to self-determination. Their Nation has never entered into Treaty with any
Crown or colonial state. The Lubicon Lake Nation Territory, including our Nation’s
resources, is constantly being used by the colonial state without our
consent. These actions by the state of
Canada deny us our right to freely determine our political status and to freely
pursue our economic, social and cultural development. Our right of
self-determination has been systemically undermined by the actions of Canada as
the state attempted to create entities to represent our interests. These
actions were done without our consent.
The Lubicon Lake Nation received a letter that the state of Canada has
determined that a “band” created under the Canadian legislation known as the “Indian Act” is the “spoke people” for
the Lubicon. We have never entered into
any agreement or arrangement with Canada including agreeing to come under the “Indian Act”. These are clear violation
of our rights to freely determine our own political status and our future.
These actions by the state of Canada are designed to continue to access our
resources without our consent. Our Peoples reject this blatant attempt to
undermine our rights within our Territory.
The Lubicon Lake Nation had filed a complaint
with the Human Rights Committee who made a number of recommendations. Canada has not followed any of the Committee’s
recommendations. In 2016, the Lubicon Cree Nation filed an urgent action with
CERD due to the recent developments in our Territory, Canada continues its
attempts to crush our Nation. Our Nation has never agreed to be part of the
state of Canada.
Lubicon Lake Nation requested the CERD to find the violations and to
consider taking the following measures to ensure that the Canadian state takes
positive action to ensure our Nation’s free exercise of our inherent right to
self-determination and that the Canadian state meets its obligation to sit with
the real representatives of the Lubicon Lake Nation and quit trying to
manufacture consent for our resources within our territory. CERD took up the issues raised by the Lubicon
Lake Nation. It is unfortunate that
Canada has not complied with any of the requests made in 2016. The situation continues to go unaddressed by
Canada who pursues their own agenda to deny the Lubicon Lake Nation their
rights to their territory and resources.
On 27 May 2016, the following communication was issued by CERD/89th/EWUAP/GH/MJA/ks. The Chair asked Canada:
In accordance with Article 9 (1) of the Convention
and article 65 of its Rules of Procedure, the Committee requests that the State
party submit information on all of the issues and concerns as outlined above by
31 October 2016, as well as on any action already taken to address these
concerns. In particular, it requests that the Government of Canada provide
information on:
(a) Efforts
made to adopt legislative or administrative measures to hold accountable
transnational corporations registered in Canada whose activities violate or
negatively affect human rights, including the rights of indigenous people and
local communities;
(b) Steps
taken to ensure the participation of all Lubikon Lake Nations and their elected
representatives in decision-making processes that concern them;
(c) Plans, if
any, to negotiate with the Lubikon Lake Nation (MuskotewSakahikan Enowuk) with
regard to their land claim referred to above;
(d) Measures
to implement in good faith the right to free, prior and informed consent of
Aboriginal peoples whenever their rights may be affected by projects carried
out on their lands.
In the year since the letter was sent by the Chair of CERD – Canada has
not complied with any of steps outlined by the Committee. Canada continues its
policy to crush the Lubicon Lake Nation and take the resources without our
Nation’s consent;
·
The Moose Cree's Unanimous Rejection of Proposed
Drilling Project by Niobay Metals Inc (PR16-10977) and Need for Permanent
Protection of the North French River Watershed and South Bluff Creek is a clear
example of the Canadian Mining Law which allows for free entry into the
territories of Indigenous Nations and allows for staking and registration of
mining interests in the territories of Indigenous Nations without such
Indigenous Nations’ free, prior and informed consent.
The allowance of mining permits
and staking is based on the notion that the underlying title vests in the
Crown. There is no recognition that our Nations have the right to say “no”. Once
a company has a permit, the Indigenous Nations are pushed aside. Their concerns
for water and the environment are ignored. Numerous attempts by the Moose Cree
to bring the matter to the attention of various government officials have gone
unanswered. This area and the North French River Watershed lies within the heart
of the Moose Cree Territory. It is an area of great cultural and environmental
significance to the Moose Cree Peoples. The North French River is one of last
sources of clean water for the Moose Cree Peoples, the wildlife and other
living beings including fish. Its protection and preservation are of paramount
importance the Moose Cree deemed it permanently protected in 2002 and
reaffirmed in 2015. The South Bluff Creek is highly used by the Moose Cree and
have camps all along it. You can still drink the water from the creek and the
sensitive wetland area supports brook trout, moose, black bear and boreal
caribou. Families that occupy the area are united in their opposition to this
project. The protection of this watershed is of paramount importance to the
Moose Cree Peoples. The Moose Cree took the step to inform the mining companies
of their position to unanimous rejection of the Ontario government's assertion
to explore and mine the toxic mineral, niobium, on the South Bluff Creek
watershed.
Despite the notices and letters,
the Moose Cree were alarmed by a mining company posted plans on their website
for mine construction in 2020 and production by 2021. These plans are for
potential investors, include several road options through the Moose Cree
Territory and the construction of a transmission line across the North French
River Watershed. All of this is being proposed without Moose Cree consent. The
South Bluff Creek is an area that is not open to mining or any other industrial
development. It is not a matter of the community needing more time to better
understand the economics of the project. Moose Cree will not allow any
industrial development here ever.
The Moose Cree were invited on
October 18, 2016 to present to the Federal Standing Committee on Environment and
Sustainable Development on Canada's protected areas and conservation
objectives. Canada has plans to meet ambitious targets under the Convention of
Biological Diversity to protect 17% of lands and inland waters by 2020. Ontario
has endorsed these targets as well. The Federal Standing Committee on
Environment and Sustainable Development strongly encouraged the committee and
all governments to work with Indigenous Peoples to enact and respect our
protected areas in their plans. The government has not withdrawn the remaining
approximately 507,000 ha of the watershed (that is still open to mining). A
conservation reserve already exists in the watershed protecting 158,286 ha.
The Moose Cree people are the
original people of this land and the Creator has given them this land as their
home. The Moose Cree have an inherent right to their Territory. Their ancestors
have lived on this land since time immemorial drawing the animals, fish and
plants for their sustenance. The Moose Cree are charged by the Creator with the
sacred duty of preserving and protecting the land including its waters for future
generations. When their forefathers entered into the peace and friendship treaty
with the British Crown, they made it clear they were not giving up the land or
the resources. The Moose Cree ancestors understood making the treaty as sharing
the land in a way that preserved their rights to the land. Any activity with
the Moose Cree Territory requires their free, prior and informed consent prior
to any development. Governments in Canada have to stop giving exploration
permits in Moose Cree Territory as it is based on racist ideologies that as
Indigenous Peoples, they do not have a right to their Territory, and therefore,
their consent is not required; no other people can have their land staked by
mining companies without their consent Canada and its provinces beliefs and
actions that they can issue these permits without our consent is a violation of
Indigenous Peoples rights; and
·
Perhaps one of the most disturbing and blatant examples
of racism based policies perpetuated by the Canadian state, that places less
value on Indigenous Nations and Peoples, is the continued issue of the many
Indigenous communities that do not have access to clean water. [19]
Despite having approximately 7% of the world’s fresh water, and despite Canada
being a developed and modern country, many Indigenous communities must boil
their water to drink, cook or bath. In some instances, lack of clean drinking
water has been ongoing for many, many years; Shoal Lake #40 First Nation has
not had clean drinking water for over twenty (20) years, despite living beside
the lake that provides the City of Winnipeg with their drinking water. [20]
Not only is the lack of clean drinking water unacceptable, the basis behind it,
which we submit is based on racism, is unconscionable. We wish to note that
when a similar situation arose in Walkerton, Ontario, where the non-Indigenous
town’s water system was compromised, immediate action was taken, funding
provided, and an inquiry created to determine what happened and how to ensure
it would not happen again. [21]
The Nations submit that the unacceptable behaviour and inactions of Canada’s
governments towards taking steps to ensure clean drinking water for all
Indigenous communities, particularly juxtaposed with the Walkerton example, is
racist and cannot be tolerated.
25.
Our Nations reject the false beliefs
demonstrated in the above examples as not only wrong in fact, but also wrong in
that it is premised on the racist principles contained in the Doctrine of Discovery, and contrary to
Canada’s obligations under the Convention, the CERD’s general recommendations and
concluding observations, and the Declaration. Continued adherence to this false
belief is also contrary to Canada’s recent policy of “reconciliation” and
alleged desire to create new relationships with our Nations. For true
“reconciliation” to take place and thereby create a new relationship as so
desired, Canada must abandon its reliance on racist principles that have been
normalized through its jurisprudence and legislation, and contrary to its
international obligations, and truly begin anew.[22]
Canada’s Actions
are a Violation of International Obligations
26.
It is the Nations’ submission that Canada’s
actions and inactions are a violation of its obligations under the following
international conventions and customary norms:
a) Articles
2(1)(a), and 5(d)(v) of the International
Convention on the Elimination of All Forms of Racial Discrimination;
b) Sections
3, 4 and 5 of the General Recommendation No. 21 of the Committee on the
Elimination of Racial Discrimination;
c) Section
4 of General Recommendation No. 23 of the Committee on the Elimination of
Racial Discrimination;
d) Article
1 of the International Covenant on Civil
and Political Rights and International Covenant on Economic, Social and
Cultural Rights; and
27. Canada
is a signatory and has ratified both the ICERD and the ICCPR. Accordingly,
Canada is bound by the articles contained within each of these instruments, and
to the norms that flow from each. The Nation submits below how Canada’s actions
in relation its laws and policies relating to First Nations’ education,
culminating in the proposed Act is a violation of its obligations under these
international instruments and the norms that flow from each.
International Convention on the Elimination of All Forms of Racial
Discrimination
28. According
to Articles 2(1) (a) of ICERD, in condemning racial discrimination each State
Party to the Convention “. . . undertakes
to engage in no act or practice of racial discrimination against persons,
groups of persons or institutions and to ensure that all public authorities and
public institutions, national and local, shall act in conformity with this
obligation”.
29. Article
5(d)(v) provides that State Parties, in compliance with article 2 of the
Convention:
“. . . undertake to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to
equally before the law, notably in the enjoyment of the following rights: . . .
(d)(v) The right to own property alone as well as in association
with other;”
30. Taking
the above articles as whole into consideration, the Nation submits that Canada
has failed in its obligations so contained within the articles as follows:
a) As
to Article 2(1) (a), the Canadian state has engaged in discrimination against
our Nations that we submit is based on our status as Nations of Indigenous Peoples.
We assert that as Nations of Indigenous Peoples, we are both a sovereign nation
and “Peoples” as understood by international jurisprudence, and accordingly
possess the ability to have ownership and possess title to our Territories as a
people. Our Nations have neither relinquished our sovereign attributes nor our ownership
or title, whether through the treaty relationship or otherwise. As a component
of our right to ownership and title to our Territories, our Nations have the
right to develop, control and manage our natural wealth and resources on such Territories,
free from interference by the state of Canada.
b) As
to Article 5(d)(v), our Nations assert that Canada’s adherence to the
principles within the Doctrine of
Discovery are based on the racist colonial ideology that holds our Nations
as inferior and incapable of having ownership or title to our Territories. Absent
any direct evidence of transfer of any right from our individual Nations to the
Crown, the belief that the Crown has a presumed underlying title to any Indigenous
land is false and perpetuated through a normalization of the racist principles
in the Doctrine of Discovery within
the Canadian legislative and juridical structures and processes and racial
discriminates so as to deny our Nations’ right to own property as set out in
article 5(d)(v) of ICERD.
Our Nations assert that the
Canadian states failure to uphold its obligations under Article 5(d)(v) in
effect prevents our Nations from exercising other our rights as Indigenous Peoples.
Specifically, in denying our rights to our Territories, our rights to own the
property that makes up our Territories, the Canadian state also denies our
rights to self-determination, to freely pursue our economic, social and
cultural development and to freely dispose of our natural resources.
General
Recommendation No. 21 of the Committee on the Elimination of Racial
Discrimination
31. According
to section 3 of General Recommendation
No. 21, CERD emphasized that:
“. . . it is the duty of States to promote the
right to self-determination of Peoples. But the
implementation of the principles of self-determination requires every State to
promote, through joint and separate action, universal respect for and
observance of human rights and fundamental freedoms in accordance with the
Charter of the United Nations.”
Section 4 provides:
“The right to
self-determination of people has an internal aspect, i.e. the rights of Peoples
to pursue freely our economic, social and cultural development without outside
interference”.
Section 5 provides:
“In order to fully
respect the rights of all Peoples within a State, government are again called on
to adhere to and implement fully the international human rights instruments and
in particular the International Convention of the Elimination of All Forms of
Racial Discrimination”.
32. These
sections of General Recommendation No. 21
clearly set out that States in guaranteeing the political, economic, social and
cultural rights of those people within our boundaries must take into
consideration the right of “Peoples” to self-determination. As noted above, the
Nations assert that as Nations of Indigenous Peoples that they are a “Peoples”
as understood by international jurisprudence and as discussed within this
general recommendation. Accordingly, taken together with those articles of the
ICERD as noted above, the Canadian
state is required when meeting its obligations under the ICERD to fully respect
all “Peoples” within its boundaries such that our right to self-determination
is promoted.
33. The
Nations submit that the right contained in section 5 (d)(v), to wit to right to
own property alone and in association with others, is an integral component to
the right of self-determination. Without a secured right to property, the
ability of a self-determining Indigenous Peoples to exercise our right to
freely develop our cultures and societies through the use of the natural
resources found on our Territories is a hollow right. The Canadian
state’s adherence to the racist principles contained in the Doctrine of Discovery whereby our
Nations’ rights to our Territories is minimized for the benefit of the Crown is
therefore not only a violation of its obligations under the ICERD, and the
directions provided by CERD, but also the International
Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (the ICESCR) as set our more fully further below. By
denying our Nations’ rights to our Territories, our rights to freely dispose of
the natural resources contained within such Territories is also a violation of
our right to self-determination as Peoples.
General
Recommendation No. 23 of the Committee on the Elimination of Racial
Discrimination
34. According
to section 4 of General Recommendation
No. 23, CERD called on State parties to:
“(a) Recognize and
respect Indigenous distinct culture, history, language, and way of life as
enrichment of the State’s cultural identity and to promote its preservation;
(b) Ensure that members of Indigenous Peoples
are free and equal in dignity and rights and free from any discrimination, in
particular that based on Indigenous origin or identity;
(c) Provide Indigenous Peoples with conditions
allowing for a sustainable economic and social development compatible with our
cultural characteristics;
(d) Ensure that members
of Indigenous Peoples have equal rights in respect of effective participation
in public life and that no decisions directly relating to our rights and
interest are taken without our informed consent; and
(e) Ensure that Indigenous
communities can exercise our rights to practice and revitalize our cultural
traditions and customs and to preserve and to practice our languages”
35. In
conjunction with what has been stated above in its totality, the Nations submit
that the Canadian state’s failure to meet its obligations under the ICERD and General Recommendation No. 21 of the
Committee on the Elimination of Racial Discrimination is also a failure to
heed the General Recommendation No. 23 of
the Committee on the Elimination of Racial Discrimination: Indigenous Peoples. The Nations submit
that the Canadian state’s continued adherence to the principles of the Doctrine of Discovery that minimizes our
Nations’ right to our Territories, and thereby legitimizes the Canadian state’s
alleged underlying title to our Territories, is based
Article
1 of the International Covenant on Civil and Political Rights and International
Covenant on Economic, Social and Cultural Rights
36. According
to Article 1, “All Peoples have the right
of self-determination. By virtue of that right they freely determine our
political status and freely pursue our economic, social and cultural
development”.
The Nations submit that given its recommendations in General Recommendation No. 21 of the
Committee on the Elimination of Racial Discrimination that requires States,
in protecting the rights of all Peoples in the State, must adhere to and
implement fully the international human rights instruments, the Canadian state
must adhere to and implement fully Article 1 of the ICCPR and the ICESCR. The
Nations submit that the Canadian state has not only not adhered to or
implemented these articles, but have in fact violated these articles by not
protecting and implementing our Nations’ inherent right to self-determination
as set out in this submission. Since the Canadian state has neither adhered to
nor implemented these articles, it is also in violation of ICERD and CERD’s
General Recommendation No. 21 of the Committee on the Elimination of Racial
Discrimination.
37. Although
the Canadian state purports to be a “champion of human rights” on the
international stage, the Nations agree with Independent Expert Alfred De Zayas’
“Recommendation to States” where he recommends the following:
“States should practice what they
preach and test our actions, in good faith, for consistency with the Purposes
and Principles of the United Nations, knowing that the end does not justify the
means, and that international law is by definition universal and must not be
applied a la carte”.[23]
Residential Schools and Child
Welfare Systems and State Laws
38. In
response to the Canada’s government’s periodic report to CERD our Nations vehemently
object to the claims made by the government.
Canada portrays that it “has a strong legal and policy framework to
combat racial discrimination”[24]
The Canadian state cites the Canadian
Charter of Rights and Freedoms, the Criminal
Code, and federal and provincial human rights statutes as a basis of
promoting that it is peaceful and benevolent toward Indigenous Peoples and
Nations. The evidence suggests the
government has a long standing racist violent past and present against Indigenous
Peoples.
39. The
residential school system was a program designed by the state (from 1883 to 1996[25])
that utilized a destructive and vicious framework that invoked “theories of
racial superiority”[26]
— civilizing project — to forcibly remove hundreds of thousands (even millions)[27]
of Indigenous Peoples’ children from our Nations and ultimately from our Territories. Our children continue to be removed from our
homes and families into the provincial child welfare systems with no end in
sight.[28] The effects and devastation of racist
colonial violence in our Nations continue to be felt through the poverty,
incarceration rates, suicides, addictions, among others and the most important
being our relationship to our lands and territories.
40. The
forcible removals of our children are in contravention to CERD’s preamble in
the ICERD. In which it is “convinced that any doctrine of
superiority based on racial differentiation is scientifically false, morally condemnable,
socially unjust and dangerous, and that there is no justification for racial
discrimination, in theory or in practice, anywhere[.]”[29]
41. Canada’s
perpetration of destruction against our Nations through its forcible removals
of our children into state controlled residential institutions continues in the
child welfare system. It is perilous
that a state such as Canada engages in destructive conduct against our Nations
and there exists no international body to examine this issue. It is imperative that CERD see through the
façade that continues to be portrayed by this government.
42. Canada
claims that its “Hate Propaganda”[30]law
is utilized to combat “racist violence”[31]
in its Criminal Code. It is critical
to highlight that the Hate Propaganda law has its origins in the United Nations Convention on the Prevention and Punishment of
the Crime of Genocide (UNGC)[32]. The Canadian state’s participation in the
drafting of the UNGC and its ratification of genocide in its domestic penal
code has allowed the government to conceal a deadly and destructive past and
present with respect to its racism against Indigenous Peoples.
43. Our
Nations acknowledge that genocide is outside of the scope of CERD’s mandate;
however, the information is critical to the framework (Hate Propaganda
legislation) that Canada espouses to meet international objectives with respect
to racial discrimination. We refer to
genocide in the context of racial violence dominated against Indigenous Nations
and Peoples in the colonization of our Homeland and territories.
44. It is important to expose the true face of
Canada, rather than the one the government espouses to the world at large. Our Original Nations on Great Turtle Island
depend on outside interventions from the international mechanisms such as CERD.
45. Recent
legal scholarship conveys that Canada is culpable for genocide, and violates
international customary laws with respect to the forcible transferring of Indigenous
Peoples’ children from their families and Nations into residential schools and
child welfare systems,[33]
despite claims that it has resolved the residential school issue under the
Indian Residential School Settlement Agreement.
Furthermore, despite the high threshold of specific intent, a case has
been made to show that the state is indeed guilty for crimes against the
Original Nations on Great Turtle Island.
46. As
part of the Indian Residential Settlement School Agreement the Truth and
Reconciliation Commission (TRC) was created to “inspire a process of truth and
healing leading to reconciliation.”[34]
There is a pretense in Canadian society
and in the international community that the state has redressed and accepted
accountability for the residential schools through its TRC Process.
47. At
this point, without deconstructing the loaded language exhibited by words such
as “reconciliation” and “truth”, the question remains - Is it legal or just
that a perpetrator state responsible for genocide, appoint a TRC process to
investigate its conduct for creating and implementing the forcible removals of
our Indigenous children?
Framework
of Racial Superiority
48. Given
the civilization project is born from theories of racist superiority, it is
critical unpack the importance of this to the Canadian state’s conduct both
historically and in contemporary times.
49. During
the drafting of the UNGC, state governments, such as the Ukraine and the USSR
contended that cultural genocide is a central tenet of the crime.[35] The strong opposition with respect to the
deletion of cultural genocide concerned that “fascism, Nazism and doctrines of
racial superiority”[36]
are at the root of genocide and should remain in the preamble to the UNGC.
50. The
concern by the Ukraine and USSR delegations, highlights an important principal
that is embodied in ICERD: “Considering that the United Nations has condemned
colonialism and all practices of segregation and discrimination associated
therewith, in whatever form and wherever they exist, and that the Declaration
on the Granting of Independence to Colonial Countries and Peoples of 14
December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly
proclaimed the necessity of bringing them to a speedy and unconditional end.”[37]
51. Mr.
Morozov, USSR delegate, emphasized his astonishment that some delegations
raised objections to the “organic connexion between fascism and racial theories
and genocide being emphasized in the convention on genocide. Should the General Assembly accept that view,
it would by that very fact demonstrate its refusal to condemn racial theories,
or to admit that those theories led to genocide. It was clear that such theories were
incompatible with the Charter. To say
that the crime of genocide had no connexion with racial theories amounted to,
in fact, to a re-instatement of such theories.”[38] Genocide followed “racial theories intended
to develop racial and national hatreds, the domination of the so-called ‘higher
races’ and the extermination of the so called ‘lower races’. The crime of
genocide formed an integral part of the plan for world domination of the supporters
of racial ideologies.”[39] It is not a coincidence that the “colonial
clause”[40]
was a topic during the drafting of the crime of genocide. The colonial clause designates to which
colonial territories a UN convention will apply.
52. The
USSR’s position to have cultural genocide retained in the convention directly
relates to its concern that “[c]olonial policy had been a dark page in
history[.]”[41] In fact, there was contention between USSR and
the United Kingdom on this “dark history” as the United Kingdom delegation
“denied the moral authority of the Soviet Union Government to make any such
statement, or to set itself up as a model of conduct before the world.”[42]
The USSR proposed an amendment to the “application in Non-Self-Governing
Territories [being] left to the discretion of the administering powers.”[43] Mr. Morozov proposed that it “should be
replaced by a definite clause stipulating that the convention should apply not
only to the signatory States, but also to the territories under their
administration including all Trust Territories and Non-Self-Governing
Territories.”[44]
USSR’s amendment was rejected and in response stated, “In the opinion of the
USSR delegation, the reason why the colonial Powers had pressed so strongly for
the omission of such a clause, which incidentally appeared in many other
conventions was because they intended to have a free hand to ensure that
colonial territories were maintained in a position of inferiority.”[45]
53. Canada
is a colony of Great Britain and created by an act of British Parliament.[46] The Canadian government recommended the issue
of cultural genocide be placed under the international covenant of human
rights.[47] The result of maneuvering the issue of
cultural genocide under a human rights framework is that Canada’s oppression over
Indigenous Nations and Peoples continues unabated and undetected from
international scrutiny.
54. Racist
theories are the cornerstone of the legalized persecution against Indigenous
Nations and Peoples.[48] Colonial laws forced the removal of our
children into the ‘residential school system’[49] and continue the removals
into the ‘child welfare systems’[50]. The residential school system
destroyed the ability to parent by the massive and widespread violence
imposed against our children. The direct
result is the child welfare system. The
traumatic impact of the residential schools, specifically the inability to
parent, is the basis that maintains racist state oppression. The state develops the standards (“inability
to parent”) for forcible removal of Indigenous children into foster care homes
away from their own families and territories under a further destructive
auspice termed the “best interests of the child”.
55. As a
concept, the concept of the “best interests of the child” is a colonizer value
based judgment. It is a concept that was created to continue the “domination
and dehumanization”[51]
of our Nations. This is a continuation of destruction against our Nations based
on racist values and concepts maintained by the colonizer. This is the face of
colonization that continues to this day.
A recent media outlet reported that of the 10,501 children in care in
Manitoba that 9,205 are Indigenous children.[52] A recent study completed by Statistics Canada
shows that, “while Aboriginal children represented 7% of all children in Canada
in 2011, they accounted for almost half (48%) of all foster children in the
country.”[53]
56. The
forcible removal of our children past and present is catastrophic and “criminal”[54]
when examined from this standpoint. There exists no international reprieve for
the Original Nations on Great Turtle Island.
Forcible
Removals of Our Children
57. The
Canadian government cloaks the devastation our children endured in the
residential schools with rhetoric and by the “loopholes”[55]
it created when the drafting of the crime of genocide took place from
1946-48. It is important to emphasize
that this analysis is critical as to how a colonial framework based on theories
of racial superiority and violence (domination and dehumanization) is
maintained by Canada.
58. First,
very briefly, after the ratification of the UNGC state governments were under
an obligation to legislate the crime into its domestic penal codes. Canada did
not implement the entire UNGC into its Criminal Code and excluded critical
elements of the crime.[56] This is supported by the discussions that
took place in 1965 by the Special Committee on Hate Propaganda (hereinafter the
“Special Committee”). The Canadian Civil
Liberties Association to the Special Committee acknowledged the residential
schools would be in violation of the UNGC.[57] It was acknowledged by the Special Committee
in its report that “[f]or purposes of
Canadian law we believe that the definition of genocide should be drawn
somewhat more narrowly than in the international Convention so as to include
only killing and its substantial equivalent − deliberately inflicting
conditions of life calculated to bring about physical destruction and
deliberately imposing measures to prevent births. The other components of the international
definition, viz., causing serious bodily or mental harm to members of a group
and forcibly transferring children of one group to another group with intent to
destroy the group we deem inadvisable for Canada”[58]
It was also claimed that the forcible removals of children in Canada are
“relatively unknown.”[59]
59. Senator
Roebuck conceded in 1952 that involving state governments will not hold their
own governments accountable for crimes under the UNGC.[60]
This begs a serious question; why go to
great effort to have genocide recognized as a crime in international law then
render the integrity of the crime inapplicable within domestic state
borders? It shows that Canada understood
the loopholes created in the ratification process. The limited crime in domestic laws would
later render any possible government conduct of genocide as impossible or moot
in a Canadian court.
60. We
submit that the Canadian government removed any possibility for racist state
violence against Indigenous Peoples’ children to be scrutinized by its own
judiciary.[61]
Canada is not above international laws with respect to ICERD and other
international conventions. The Hate
Propaganda legislation does not protect Indigenous Peoples from long standing
colonial violence. It entrenches racial
domination and dehumanization.
61. Colonial
violence and terror against our Nations’ children is a common and massive
experience in the form of torture, forced starvation, forced labour, sexual
predatory acts, and death by disease and dilapidated living conditions.[62] So rhetoric like “abuse, mistreatment, and
neglect”[63]
acknowledged in the government Apology in 2008 dodges the implication that the
state has engaged in racial destruction against our Nations and Peoples.
62. Indigenous
children were dehumanized by denigrations such as “savage” or “heathen” as
staff officials whipped, beat, starved, confined, and committed brutal acts of sexual
violence, and many other methods designed to destroy the national identity of Indigenous
Peoples’ children.[64] It is common knowledge that children were
brutalized with needles through tongues and other forms of violence for
speaking their languages.[65]
Short of death, atrocities of this kind
will cause the collective serious bodily and mental destruction (forcible
indoctrination[66])
against our Original Nations. We depend
on our children to transmit our national identities to further generations.
63. Children
violated and dehumanized by racist beliefs will believe and accept those ideas
about themselves and their people. Children
are indoctrinated to view themselves through the eyes of the colonizer as
racially inferior and not as children of Nehiyaw (Cree) people. Nehiyaw people depend on their children to
transmit the healthy and beautiful aspects of their identity onto further
generations.
64. Our Nations’ spiritual laws are encoded in our
original languages with respect to our land (Mother Earth) for the future
generations. Sharon Venne on our Indigenous laws: “We have a relationship with
our Creation based on a legal system designed to protect and honour the land.”[67]
Children that are dehumanized and racially indoctrinated as inferior will not
understand the languages or laws that guide or instruct a Nehiyaw, Anishinaabe,
Kanaii or Dene identity are foundational to our way of life and our
relationship with our Territories.
65. The
collective genocidal traumatic effects (inability to parent) brought about by
the residential school phase is then used by very dominating
society that created that trauma (dysfunction) to justify the child welfare
system phase of the process. The system
carries on the racist beliefs that dominated the residential school system. The
state uses its imposed standards of judgment to create the
institutions that create the destructive conditions, and then use its standards
of judgment to forcibly take away further generations of our Nations’
children by racially demonizing the parents for not having the parenting
skills. It is well acknowledged in
government reports the high rates of removal in the child welfare system is a
direct effect of the residential school system.[68] The rates of removal are appalling.[69]
66. Our Nations’
children in the child welfare system experience the same rates of racist
violence that their predecessors in the residential school endured.[70] The suicide is rate is pandemic for children
in care.[71] Our Nations’ children are sexually preyed on
while in the care of the system.[72] The death rates of children in care are at an
all-time high. Some examples include Tina Fontaine, aged 15, who was killed
after she ran away from a hotel where she was in government care in Manitoba.[73] Another young person, aged 18, Alex Gervais,
in British Columbia, jumped out of a hotel window and died.[74]
Gervais was housed in the hotel room unsupervised by the ministry. The residential schools and child welfare
systems have devastated our communities and Nations.
67. We
assert that the effects of racist dehumanization against our Nations have
resulted in the eventual and complete disappearance of our identities into
state of Canada due to the traumatic patterns that are transmitted over the
generations. Suicides, violence, poverty, despair, addictions, and many more
egregious disasters permeate our reality.
It is 134 years that Canada has forcibly removed our children from our
families and Nations. We are reeling
from the racism that continues to dominate our existence.
68. We
assert that the racist underpinnings that drive state laws and policies with
respect to Indigenous Peoples continue to oppress our Nations. Motivated by a
framework that is grounded in racial superiority, the Canadian state has not
changed its position with respect to the earlier policies and laws. If it has not ceased, then the catastrophe
that we currently are forced to contend with will not cease either.
69. We
submit that under international jurisprudence, Canada cannot unilaterally decide
that international law will not be applicable to its conduct with respect to
the on-going forcible transferring of our Nations’ children and the serious
bodily and mental harm that our children continue to experience at the hands of
the Canadian state. To reiterate, our Nations again pose the question as to
whether it is it legal or just that a perpetrator state responsible for destruction
against the innocent, appoint, fund and set the terms of reference for a TRC
process to investigate its conduct for creating and implementing a racist
framework that forcibly removes our Nations’ children?
Smoke
and Mirrors and the Residential School Settlement Agreement
70. The Canadian
state claims the issues with respect to the residential schools are resolved
through the Residential School Settlement Agreement. The Canadian state’s evasion for true accountability
for the forcible removal of our children is evidenced by a few factors.
71. First,
the government apology[75]
does not redress the horror we have endured and the destructive reality that
has over shadowed our children and ultimately our Nations and our lands and
territories. We depend on our Territories
and this is vital to our identity as Nations of Indigenous Peoples. The forcible removals are part and parcel of
the long-standing goal to extinguish the underlying title we hold to our Territories.[76] Children violently traumatized and
indoctrinated in a language that demonizes their identity will not remember
that they have a responsibility to protect the land for future
generations.
72. Second,
the mandate of the TRC illustrates our point with respect to the dodging of
full responsibility for its intent to destroy Indigenous Peoples and
Nations. The commission could not hold
criminal hearings or subpoena witnesses.
Further, the TRC Final Report dodges the implication that the forcible
removals are criminal and destructive against our Nations. The finding of “cultural genocide” does not
satisfy a truthful account as cultural genocide is not a crime in international
law. It does not make the state
answerable to any tribunal and it allows Canada to get away with its vicious
conduct against our Nations’ children.
73. The
TRC conceals colonial racial violence through words that downgrade the
truth. An example is reiterated in
Canada’s report to CERD in which is it is claimed that the TRC was created to find
a “lasting resolution to the legacy of the Indian Residential School System.”[77]
The term “legacy” connotes a gift or anything handed down from a predecessor or
ancestor. It renders the effects of a
racist state framework as benign or less than the destruction these
institutions were intended for by the government.
74. The
solution proposed is a “national reconciliation framework”[78]. Reconciliation gives the state of Canada the
license to continue to destroy our Nations and our Territories with
impunity. It does not return the land
they have illegitimately claimed or resolve the racial destruction they have
committed against our Nations and Peoples.
The residential school settlement agreement is smoke and mirrors and
contributes to the façade that Canada is peaceful and benevolent. To be allowed to engage in this display of
lies to CERD and the international community is a disgrace to the principles
embodied in ICERD and the Charter of the United Nations.
75. We
submit that Canada cannot decide for itself whether it has engaged in criminal
conduct and unilaterally create the process that examines its own conduct is a
violation of international laws. The
recent research on genocide certainly supports that the causes of racially
motivated state violence committed against our Nations children in the
residential school and currently in the child welfare systems causes the
(trauma and dysfunction) high suicide rates, poverty, and despair that is
grossly over represented in our Nations to the present day.[79]
76. As Indigenous
Peoples, we depend on our children to transmit our languages, spirituality,
cultures, healthy characteristics of our identities so that we can continue to
survive as the Original Nations and Peoples on Great Turtle Island.
77. The
solution is embodied in the self-determination of our Nations and the
decolonization of our Territories. We call on CERD to see through the
smokescreen portrayed by Canada so that we can begin to heal and recover from
the horrors and traumatic impacts caused by a racist regime. We call on CERD to intervene on our behalf.
Questions for the Canadian State
78.
The Nations submit that when an invading nation claims
the lands to which another nation or Peoples have an inherent connection and
right based on racist principles such as the Doctrine of Discovery to justify such claims, then as the opening
quote by Thomas Paine provided, such a nation then must legitimize such claim.
In Canada, such legitimization has been the continual minimization of our
Nations’ rights to our Territories and its resources, as well as who we are as
Nations of Indigenous Peoples, and the destruction of our Nations through the
forceful removal of our children through state sponsored laws, regulations and
policies. While the Canadian state may currently wish to “reconcile” with our
Nations and build a “new relationship”, our Nations will reject the Canadian
states desired goals if it continues to proceed on the presumed baseline that it
has a claim to our Territories that is based on the racist Doctrine of Discovery, and refusal to fully address the past and
present harms confronting our children.
79.
Our Nations assert that Canadian governmental
policies and actions towards us that are supposedly based on neoliberalism concepts
of equality to sooth its collective cognitive and moral dissonance has nothing
to do with equality. In fact, at their foundation all current Canadian policies
and actions that are based on the racist principles of the Doctrine of Discovery and fantasies of racial superiority, including
child welfare systems, act to extinguish our identity as Nations of Indigenous Peoples
and to unilaterally absorb us into the body politic. We submit that the
continued adherence to Doctrine of
Discovery and neoliberalism continues to discriminate against us in that the
Canadian state does not accept us as self-determining Nations of Indigenous Peoples
with the subsequent inherent rights.
80.
Accordingly, the Nations respectfully requests
that the UN Committee on the Elimination of Racial Discrimination to put before
the Canadian State the following questions:
a) On
what legal basis, both domestically and internationally, does Canada claim
underlying title to Indigenous lands?
b) Does
Canada support that all “Peoples” have an inherent right to self-determination,
and that as a component of such a right, that all “Peoples” have a right to
collectively own property and to derive whatever benefit from such property?
c) Does
Canada renounce the Doctrine of Discovery,
and the racist principles and belief that make up such a doctrine?
d) Does
Canada’s recent declaration of its goal of creating a new relationship with Indigenous
Peoples within Canada, including the need for reconciliation between the
Canadian state and Indigenous Peoples include Canada’s international legal
obligations pertaining to Indigenous Peoples, including the norms contained
within such obligations?
e) Does
Canada believe that having access to clean drinking water is a right that all
peoples in developed and modern states are entitled?
f) Does
Canada believe that it is legal or just that a perpetrator state responsible
for genocide, appoint, fund and set the terms of reference for a process to
investigate its conduct for creating and implementing the genocide?
[1] Thomas Paine, “On First Principles of Government
(1795)” from The Thomas Paine Reader,
(Toronto: Penguin Press, 1997) at p. 464.
[2] The Nations for this submission accept that the
working definition of “Indigenous Peoples” as found in the seminal work of
Special Rapporteur, Martinez Cobo in his report on the “Study of the Problem of
Discrimination Against Indigenous Populations” (Cobo Report), and submits that
they meet the criteria as set out in this definition, the definition from the
Cobo Report reads as follows:
“Indigenous
communities, Peoples and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies that developed on our
territories, consider themselves distinct from other sectors of the societies
now prevailing on those territories, or parts of them. They form at present
non-dominant sectors of society and are determined to preserve, develop and
transmit to future generations our ancestral territories, and our ethnic
identity, as the basis of our continued existence as Peoples, in accordance
with our own cultural patterns, social institutions and legal system.
“This historical continuity may consist of the
continuation, for an extended period reaching into the present of one or more
of the following factors:
a) Occupation of ancestral lands, or at least of part of
them;
b) Common ancestry with the original occupants of these
lands;
c) Culture in general, or in specific manifestations
(such as religion, living under a tribal system, membership of an Indigenous
community, dress, means of livelihood, lifestyle, etc.);
d) Language (whether used as the only language, as
mother-tongue, as the habitual means of communication at home or in the family,
or as the main, preferred, habitual, general or normal language);
e) Residence on certain parts of the country, or in
certain regions of the world;
f) Other relevant factors.
“On an individual basis, an Indigenous person is one who
belongs to these Indigenous populations through self-identification as
Indigenous (group consciousness) and is recognized and accepted by these
populations as one of its members (acceptance by the group).
“This preserves for these communities the sovereign right
and power to decide who belongs to them, without external interference”. UN
Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4.
[4] Robert J. Miller, “The Doctrine of Discovery” from Discovering
Indigenous Lands: The Doctrine of Discovery in the English Colonies,
(New York: Oxford University Press, 2012) at p.p. 9 -15
[5] Ibid at
p.p. 15-19.
[6] Ibid at p.
21. It is interesting to note that although the Supreme Court of Canada has
stated in its Tsilhqot’in Nation v.
British Columbia decision that the doctrine of terra nullius never applied in Canada,
we would submit that in fact it did and still does in that the Courts have
consistently held that the infringement of Indigenous Peoples rights to our
Territories can be justified by a “pressing public purpose”. It is not a large
stretch of the imagination to hear the echoes of terra nullius in this principle whereby Indigenous use of our
Territories is not in accordance with “public purpose” standards and thereby
any Indigenous right to such Territories can be infringed.
[7] Of note in this regard is the work of English
philosopher John Locke in his “Two
Treaties of Government” which has been argued was written in order to
justify the dispossession of Indigenous Peoples and deflect claims that
European rights to lands in our colonies were limited by the prior occupation
of Indigenous Peoples. Please see John
Locke: The Devonshire Farmer and the Dispossession Of the Amerindians of Belize
And Guyana by Tara Letwiniuk, a
thesis submitted in conformity with the requirements for the degree of Master
of Laws Graduate Department of Law University of Toronto, 1998.
[8]
Issued by King George III of Great Britain and Ireland on 7 October 1763.
[9] These basic principles are congruent with the
conclusions reached by Special Rapporteur Miguel Alfonso Martinez in his Final
Report “Study
on Treaties, Agreements and Other Constructive Arrangements Between States and
Indigenous Populations”.
[10] Text of the Royal
Proclamation 1763 access from Canada’s Indigenous and Northern Affairs
website at https://www.aadnc-aandc.gc.ca/eng/1370355181092/1370355203645 on June 1, 2017.
[11] It
is also part Canada jurisprudence that one party cannot transfer to another
party more of a right or interest than the transferring party possessed. While
England may have defeated France in its war within the North American, France
neither defeated the Indigenous Peoples whose Territories it claimed as its
territory, nor did France sign treaties with the Indigenous Peoples to obtain
rights to such Territories. Accordingly, any rights or interests the British
Crown may have received from France through the Treaty of Paris, was certainly
not underlying title and absent any treaty specifically transferring any right
to the British Crown, it is arguable that the Indigenous Peoples in the areas
formerly claimed by France retain intact our rights.
[14] For further information please see http://www.midnorthmonitor.com/2015/06/30/tek-elders-position-paper-takes-stand-against-aerial-spraying.
[15]
http://www.afn.ca/uploads/files/canada-afn-mou-final-eng.pdf
[16] http://www.taxpayer.com/commentaries/don-t-force-first-nations-people-to-wait-for-accountability. All Consolidated audits are available to members
through the Department of Indigenous Affairs (DIAND) or at the local First
Nation office – the salaries of the Chiefs and Councillors have been part of
the audit requirements of DIAND for years. It is a myth that these are secret.
The schedule is not available to the “Canadian public” as the Federal Court had
ruled in the Montana Band of Indians v.
Canada (Minister of Indian and Northern Affairs) (1989) 1 F.C. 143 F.C. T.D. where Associate Chief Justice Jerome wrote
at pages 153 to 155: The core of the applicants’ case and their strongest
argument, is that this information is financial…information that is confidential information supplied to a
government institution by a third party and is treated consistently in a
confidential manner by the third party”.
[17] Chief Paulette and a number of Dene Leaders attended
the NGO
Conference on Indigenous
Populations of the Americas in 1977 at
the Palais des Nations in Geneva, Switzerland.
[18] Re: Paulette's Application (1973) 6 W.W.R. 97 (NWT
S.C)
[19] For further information please see http://www.cbc.ca/news/politics/first-nations-drinking-water-advisories-1.3982999
[20] For further information please see http://www.cbc.ca/news/canada/manitoba/shoal-lake-40-and-winnipeg-s-drinking-water-what-s-at-stake-1.3185733.
[21] For further information please see http://www.cbc.ca/radio/thesundayedition/water-on-first-nations-reserves-islam-and-isis-prison-poem-pricey-glasses-heather-o-neill-1.4005479/no-excuses-for-boil-water-orders-on-first-nations-reserves-michael-s-essay-1.4005482.
[22] As an aside, it is interesting to note that as
recently as March 2017 a member of Canada’s Parliament, that is Senator Lynn
Beyak, has stated on the record, including on the floor of the Senate, that
“good” things came out of the Canadian Residential Schools. Briefly, beginning
in the 1880’s and continuing to 1996, Canada’s Residential Schools existed
where Indigenous children were often forcible removed from our communities,
taken hundreds of kilometers to schools run by various religious orders, where
more often than not, they were denied their culture, physical, emotional and
sexually abused, and had medical experiments performed on them. Despite these
common atrocities as set out in the Truth and Reconciliation Commission’s
findings, Senator Beyak bemoaned the “good” that “well-intentioned” priest and
nuns were overshadowed by these atrocities. Senator Beyak provided examples of
such “good” as learning the “Christian faith” and the ability to speak
“English”. This aside is brought up in this discussion to demonstrate that
although Canada may deny the existence of the Doctrine of Discovery and its racist principles and beliefs,
Senator Beyak’s statement provide clear evidence that such racist beliefs that
the enforced Christian indoctrination and bringing of European culture to Indigenous
Peoples is justified, which the Nations’ submit is the same principle and
beliefs behind the Doctrine of Discovery.
At the time of this writing, Senator Beyak has not retracted her statements,
refused to step down from the Senate Committee on Aboriginal Affairs, and has
insisted on an audit of “all money going in and out of First Nation reserves”; indeed,
her views were defended by other Senators. However, due to months of public
pressure, Senator Beyak was removed from her position on the Senate Committee
of Aboriginal Affairs, but remains in her position as Senator to “promote the
causes of her constituents”.
[23] See A/HRC/24/38 at paragraph 55(f) at page 18.
[24]Canada, Consideration
of reports submitted by States parties under article 9 of the Convention Canada,
United Nations Committee on the Elimination of Racial Discrimination,
CERD/C/CAN/21-23/2016 at para 10.
[25] “Where are the Children”, retrieved on line: http://wherearethechildren.ca/en/timeline/research/
[26] Hirad Abtahi & Phillipa Webb, The Genocide Convention: The Travaux
Préparatoires, vol 1 & 2 (Leiden, Netherlands: Martinus Nijhoff
Publishers, 2008). The Ukraine and the
USSR argued that theories of racial superiority were at the root of genocide
during the drafting of the United Nations Prevention and Punishment of the
Crime of Genocide from 1946-1948.
[27] Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the
Future Summary of the
Final Report
of the Truth and Reconciliation Commission of Canada (Montreal: McGill-Queen’s University Press, 2015) at
3. The federal government claims that at least 150,000 children passed through
the system. It is not clear how the
government draws this conclusion. The TRC
recognizes 139 schools across Canada.
The numbers are not accurate.
The system continued for over 100 years. Based on this formula (139 schools’
X 300 children per school X 100 years), there was at least 4, 170, 000 over the
entire system. Based on this rough calculation, the numbers are not forthright
or honest. This estimate does not
include the rates of children forcibly transferred from our Peoples and Nations
into the provincial child welfare systems.
It is accurate to claim that the numbers are catastrophically higher
than the numbers claimed by the TRC.
[28] Truth and Reconciliation Commission, “Chapter One:
Child welfare: A system in crisis” in Canada’s
Residential Schools: The Legacy The Final Report of the Truth and
Reconciliation Commission of Canada Volume 5 (Montreal: McGill-Queen’s
University Press, 2015) (“The end of the residential school system did not mean
that Aboriginal children were no longer forcibly separated from their families.
Child welfare services carried on where the residential schools left off. More
Aboriginal children are removed from their families today than attended
residential schools in any one year. Following the inquiry into the death of an
Aboriginal girl in Manitoba, the Honourable Ted Hughes concluded that the overrepresentation
of Aboriginal children in care in Canada is “unconscionable” and “a national
embarrassment”) at 11.
[29] International Convention on the Elimination
of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly
resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969, in
accordance with Article 19.
[30] Criminal Code,
An Act respecting the criminal law R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1,
section 318.
[31] Supra note
19 at para. 4.
[32] Convention on the
Prevention and Punishment of the Crime of Genocide, opened for signature 9
December 1948, 78 UNTS 277 (entered into force 12 January 1951, accession by
Canada 3 September 1952).
[33] See Tamara Starblanket, Suffer the Little Children: Genocide, Indigenous Nations and the
Canadian State (Clarity Press, 2017) [forthcoming]. The book is based on
Starblanket’s thesis entitled Genocide:
Indigenous Nations and the State of Canada (LLM Thesis, University of Saskatchewan, 2014)
[unpublished]. The thesis addresses the
legal question of Canadian state culpability for crimes of genocide and the
violation of customary international laws on genocide with respect to the
residential schools and child welfare systems.
[34] Supra note
19 at para. 151.
[35] Supra note
21 at 1318-1319 for the Ukraine’s position.
[37] Supra note
24
[38] Supra note
21 at 2044.
[39] Supra note
21 at 2044.
[40] Supra note
21 at 1609: 1816
[41] Supra note
21 at 1817 (“The Committee did not wish to see those dark pages prolonged by a
failure to extend the provisions of the convention on genocide to the colonial
territories”).
[42] Supra note
21 at 1822. The UK denied many of the assertions made by the USSR and its denial
is important to the overall question of its colonial history the world over.
[43] Supra note
21 at 2045
[44] Supra note
21 at 2045
[45] Supra note
21 at 2046.
[46] See Sharon Venne, “Understanding Treaty Six: An
Indigenous Perspective” in ed. Michael Asch, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and
Respect for Difference (Vancouver: UBC, Press, 1997 at 173-207.
[47] Supra note
21 at 1510.
[48] House of
Commons, Debates (Canada), 46 Vict. (9 May 1883), 14: 1107-1108. John A. MacDonald in his address to the House
of Commons referred to Indigenous Peoples as “savages” to justify the removal
of children from their families; see also Kent McNeil, “Social Darwinism and
Judicial Conceptions of Indian Title in Canada in the 1880s” in JOW Vol. 38. No. 1 (1999) at 71. Kent
McNeil, legal scholar, has observed the government’s policies with respect to
conception of Indian title and the residential schools are based on “social
Darwinism” or what is known as theories of racial superiority
[49] An Act to Amend
and consolidate the laws respecting Indians, S.C. 1880, c. 28; The Indian Advancement Act, R.S.C, 1886
c. 44, s. 137(2) and 138; An act further
to amend the Indian Act, 1894, c.32, 57-58 Victoria., s. 11 [Indian Act,
1894]. The amendment secured (“the compulsory
attendance of children at school. Such
regulations, in addition to any other provisions deemed expedient, may provide
for the arrest and conveyance to school, and detention there, of truant
children and of children who are prevented by their parents or guardians from
attending: and such regulations may provide for the punishment, on summary
conviction, by fine or imprisonment, or both of parents or guardians, or
persons having the charge of children, who fail, refuse or neglect to cause
such children to attend school”); An Act
to amend the Indian Act, S.C. 1920, c. 50, s. 9 and 10.
[50] See Leroy Little Bear, “Section 88 of the Indian Act
and the Application of Provincial Laws to Indians” in Anthony Long & Menno
Boldt eds, Governments in Conflict? Provinces
and Indian Nations in Canada (Toronto: University of Toronto Press, 1992)
at 175-187. With the amendments to the Indian Act, section 88, authorizes the removal of Indigenous children by
the provinces; see Marilyn Bennett, “First Nations Fact Sheet: A General
Profile on First Nations Child Welfare in Canada” First Nations Child and Family Caring Society online: <http://www.fncfcs.com/docs/FirstNationsFS1.pdf> (Bennett writes, “There is no explicit reference to
child welfare in either the Indian Act or the Constitutional Act, 1867, 1982, it has been subsequently deemed to be the responsibility of
the provinces.” Bennet also refers to
the Supreme Court of Canada case in which it was “confirmed in 1976 that the
legal jurisdiction of the Province’s ability to extend child welfare services
onto reserve, regardless of the provincial incursion into a federal sphere of
responsibility”) at 2; see Natural
Parents v. Superintendent of Child Welfare, 1976, 60 D.L.R. 3rd
148 S.C.C.
[51] See Steven T. Newcomb, Pagans in the Promised Land: Decoding the Christian Doctrine of
Discovery (Golden, CO: Fulcrum Publishing, 2008); see Steven T. Newcomb,
“The UN Declaration on the Rights of Indigenous Peoples and the Paradigm of
Domination” (2011) 20 Griffiths Law
Review at 578.
[52] Jillian Taylor, ‘The ultimate goal is to reduce the
number of children in care’: Indigenous Affairs Minister (27 March 2016) CBC
News, online: http://www.cbc.ca/news/canada/manitoba/manitoba-carolyn-bennett-child-welfare-1.4042484
[53] Statistics Canada, Study: Living arrangements of
Aboriginal children aged 14 and under, 2011 (Released at 8:30 a.m. eastern time
in The Daily, Wednesday, April 13, 2016.
[54] Supra note
28.
[55] Supra note
21 at 1296; see Draft Convention on the Crime of Genocide (E/794, E/794/Corr. 1
and E/AC. 27/1, at 710.
[56] Supra note
25.
[57] Robert Davis & Mark Zannis, The Genocide
Machine in Canada (Montreal: Black Rose Books Ltd., 1973) at 23.
[58] Canada, House of Commons, Report to the Minister of
Justice of the Special Committee on Hate Propaganda in Canada, Hate Propaganda in Canada (November
1966) at 61
[59] Ibid.
[60] Debates of the
Senate, 21st Parl, 6th Sess, No 1 (27 May 1952) at
313 (Hon. Arthur Roebuck). Senator
Roebuck stated, “In view, Honourable senators, of the possibility that for
years there will not be any international tribunal with penal or criminal
jurisdiction, it follows logically from that article that in practice only
private individuals may be prosecuted for the crime of genocide, and that they
must be prosecuted according to the laws of the state in which they live or in
which the crime is committed. The
governments in most countries are not likely to submit their acts to the
judgement of their own courts, nor are they likely to submit to those courts
the question of the guilt of their high officials, whose criminal acts may have
been in accordance with government policy.
The truth is that this convention lacks teeth.”
[61] David B. MacDonald & Graham Hudson, “The Genocide
Question and Indian Residential Schools in Canada,” (June 2012) 45:2 in Canadian Journal of Political Science at
436-438. MacDonald and Hudson write on the following case, Re Residential Schools (2000), A.J. No. 638 9Alta. Q.B.). The authors also suggest that the courts use
the domestic legislation to strike down the defendants claims of genocide in Re Residential Schools (2000), A.J. No.
638 9Alta. Q.B: “This judgment highlights a fairly common and contestable
judicial attitude towards the UNGC as a ‘political’ or moral standard and not,
absent legislation to the contrary, a legally binding document. It also ignores legal doctrine that makes
international customary law an automatic part of Canadian common law,
independently of legislative implementation”.
[62]See Ward Churchill, Kill the Indian Save the Man: The Genocidal Impact of American Indian
Residential Schools (San Francisco: City Lights Books, 2004) at 16-76; see
Roland Chrisjohn, Sherri Young & Michael Maruan, The Circle Game: Shadows and Substance in the Indian Residential School
Experience in Canada (Penticton: Theytus Books Ltd, 2006); see Canada,
Royal Commission on Aboriginal Peoples, “Chapter 10: Residential Schools” vol 1
Looking Forward, Looking Back (Ottawa: Canada Communications Group, 1996);
see supra note 28.
[63] Ottawa: Statement
of Apology to Former Students of the Indian Residential Schools, June 11,
2008.
[64] Chrisjohn, supra
note 39; Agnes Grant, No End of Grief: Indian Residential Schools in Canada
(Winnipeg: Pemmican Publications, 1996); Elizabeth Furniss, Victims of Benevolence: The Dark Legacy of
the Williams Lake Residential School (Vancouver: Arsenal Pulp Press, 1992,
1995); Isabelle Knockwood, Out of the
Depths: The Experiences of Mi’kmaw Children at the Indian Residential School at
Shubenacadie , Nova Scotia (Lockeport, Nova Scotia, Roseway Publishing,
1992); Agnes Jack, ed, Behind Closed
Doors: Stories from the Kamloops Indian Residential School (Penticton:
Theytus Books, 2006). The list of
sources is not exhaustive.
[65] Ibid.
[66] Supra note
28.
[67]Sharon H. Venne, “Treaties Made in Good Faith” in Native and Settlers – Now and Then
(Edmonton: University of Alberta Press, 2007) at 2; see also Sharon Venne, ed.,
Honour Bound Onion Lake and the Spirit of
Treaty Six: The International Validity of Treaties with Indigenous Peoples
(Copenhagen, Denmark: International Working Group for Indigenous Affairs, 1997)
[68] See Aboriginal Justice Implementation Commission,
“Child Welfare-The Justice System and Aboriginal People” in Report of the
Aboriginal Justice Inquiry of Manitoba (November 1999) online:
<http://www.ajic.mb.ca/volume.html>.
[69] Supra note
30; see also Murat Yϋkselir and Evan Annett, “Where the kids are: How Indigenous children are over-represented in
foster care” Globe and Mail (18
April 2016) online: http://www.theglobeandmail.com/news/national/Indigenous-kids-made-up-almost-half-of-canadian-foster-children-in-2011statscan/article29616843/
[70] See Ernie Crey & Suzanne Fournier, Stolen From Our Embrace: The Abduction of
First Nations Children and the Restoration of Aboriginal Communities
(Vancouver: Douglas & McIntyre, 1997).
[71] Darcy Denton, “Deaths of Alberta aboriginal children
in care no ‘fluke of statistics’’ Calgary Herald (1 August 2014) online:
http://www.edmontonjournal.com/life/Deaths+Alberta+aboriginal+children+care+fluke+statistics/9212384/story.html
[72] Mary Ellen Turpel-Lafond, Representative for Children
and Youth, ‘Too Many Victims Sexualized Violence in the Lives of Children and
Youth in Care: An Aggregate Review ‘(October 2016).
[73]Chinta Puxley, “Manitoba opens Tina Fontaine case to
review by children's advocate” The Globe and Mail (15 December 2014)
[74] ‘Teen in B.C. provincial care dies in fall from hotel
window’ B.C. children's advocate calls death of Alex Gervais a tragedy, says
ministry 'has a lot to answer for' CBC News (23 September 2015) online:
http://www.cbc.ca/news/canada/british-columbia/teen-in-b-c-provincial-care-dies-in-fall-from-hotel-window-1.3240959
[75] Supra note
58.
[76] Chrisjohn, supra
note 57 at 71.
[77] Supra note
19.
[78] Supra note
19.
[79] “Attawapiskat:
Four things to help understand the suicide crisis”, The Globe and Mail (5
January 2017) online: https://www.theglobeandmail.com/news/national/attawapiskat-four-things-to-help-understand-the-suicidecrisis/article29583059/
