HR/GENEVA/TSIP/SEM/2003/BP.11
EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER
CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES
Geneva
15-17 December 2003
Organized by the Office of the
United Nations High
Commissioner for Human Rights
Background paper prepared by
Ms. Sharon Venne, Akaitcho Dene Treaty 8
Under item 2
Analysis of the difficulties relating to the full
implementation of existing Treaties
The purpose of this discussion paper is to present
some questions for consideration in relation to the future use of treaties with
Indigenous Peoples and the importance of their implementation. The difficulties encountered by Indigenous
Peoples relate directly to the colonizer state’s failure to recognize the true
nature of the Treaties. The main failure
is the refusal of the state governments to recognize the sovereignty of
Indigenous Peoples. Indigenous Peoples who entered into Treaties negotiated and
concluded Treaties as Nations not as domestic dependent nations as claimed by
various colonial courts. The lack of following international legal norms and
law had led Indigenous Peoples to the League of Nations and to the United
Nations. Indigenous Peoples pushed for a
study to be done as a means to find peaceful and long lasting resolution to
ongoing disputes on Treaty implementation.
The State’s lack of recognition of the finding of the UN Special
Rapporteur’s final report (E/CN.4/Sub.2/1999.20) on the Treaties and his
conclusions and recommendations continues to lead to confrontations between
Indigenous Peoples and the state. It has
been four years since the report was submitted and accepted by the United
Nations. There has been no substantive attempt by states to implement the
recommendations of the final Report. The number of factors related to the state
refusing to implement Treaties will be briefly highlighted in this discussion
paper.
1.
There
is a lack of political will on the part of the government. The government of Canada rather than trying
to implement the Treaties wants to extinguish the Treaties and replace them
with comprehensive land claim agreements in the area north of 60. The Akaitcho Dene are opposed to the
comprehensive claims process and rejected a major settlement in 1990 when it
required them to extinguish their rights to the lands and resources of their
territories. When the Akaitcho Dene
negotiated and concluded the peace and friendship Treaty in 1900, they did not
give up their relationship with their lands and resources. Canada wants to change the relationship while
the Akaitcho Dene want to implement the spirit and intent of the Treaty concluded
in good faith in 1900. Since the failure of the Dene/Métis process in 1900, the
Akaitcho Dene have tried a number of times to get into a process with Canada to
implement their Treaty. In the oral
understanding of the Peace and Friendship Treaty, Akaitcho Dene agreed that
non-Dene could live among them. However, Dene did not agree that their lives
would be controlled by the non-Dene. Dene laws would continue to apply in their
lands and their rights to live within their territory was not to be interfered
with by the non-Dene. Initially, the non-Dene did not interfere but as more
resources were found within their lands, non-Dene have been pushing Dene out of
their territory and destroying the lands and waters causing hardship to the
Dene. The Elders wants to see the
respect shown by the Dene at the original Treaty to be continued.
2.
One of
the major identified problems in relation to the implementation of the Peace
and Friendship is the failure of the education system of the state to give the
true history of the colonization of Indigenous territories and the significance
of the Treaties. The lack of education among the colonizers about the rights of
Indigenous Peoples and non-Indigenous Peoples living under a Treaty has lead to
racial tension and discrimination directed at Indigenous Peoples. The racism being directed toward Indigenous
Peoples by the colonizers who see themselves having to pay for the settlement
of outstanding issues. In the Treaties, a number of undertakings were given by
the Crown’s negotiators that the successor state has inherited. Due to the lack of education on the rights of
Indigenous Peoples, racism develops and causes conflict. In a number of major studies on the justice
system in Canada, the studies concluded that there was systemic racism shown
towards Indigenous Peoples by the judicial system from the police to the
prisons. The colonizers laws have taken precedent over the Indigenous laws that
gives arise to Indigenous Peoples being forced into a racist and uncaring
system. In these cases, the collective rights of the colonizers are used to
override the collective rights of Indigenous Peoples. There are many examples in Canada where
non-Indigenous Peoples have tried to undermine negotiations with Indigenous
Peoples. The province of British Columbia tried to have a referendum to
determine the parameters of the negotiations. The questions posed in the
referendum were biased. The Courts refused to intervene when asked by
Indigenous Peoples. Then, Indigenous Peoples organized a massive public
campaign to bring awareness of the issue. The Indigenous Peoples were able to
attach the attention of unions, church groups, environmental groups, human
rights organizations and individuals who campaigned against the
referendum. Despite the campaign, the
write in ballots went against the Indigenous Peoples who are trying to negotiate
agreements for the first time since their lands and territories were occupied
by the colonizer in a complete violation of international, British,
Commonwealth and Canadian legal norms.
In the same province, a modern land claim agreement concluded with the
Nisgha was subjected to court challenges and demonstrations by non-Indigenous
People.
3.
In
attempting to negotiate the implementation of a Treaty within Canada, the
negotiators have policies and procedures to follow. The negotiations are not based on the rule of
law. While the laws are in place to
protect the relationship under the Treaties, the government’s negotiators do
not appear to be bound by those laws. Rather, there is reference to policies
and procedures that Treaty Peoples neither negotiated nor agreed to be bound. These policies and programs used by
government to undermine the treaties by degrading their status to
administrative issues rather than political arrangements between Peoples.
4.
The
federal government of Canada is not prepared to accept that Indigenous
Governments and laws had previously negotiated and entered into Treaties. The process proposed by the state is an
attempt to impose Eurocentric values rather than have recognition and
acceptance of the Dene governments and legal system. The preferred method of
Canada is to “impose” a government based on the model developed by Canada. The
most recent attempts are to incorporate the governments and laws into the
legislative framework of the state thereby undermining the original spirit and
intent of the Treaties to live side by side in peace and friendship.
5.
In the negotiation process to
implement the Treaty, Canada wants the Dene to give up their lands and
resources as a means to settle outstanding disputes. The negotiations are an
attempt to sever the Dene relationship with their lands and resources. For the
Akaitcho Dene, the severance of their links to their lands and resources is to
relinquish an integral part of themselves. When Dene give up their lands, what
happens to the future generations? It
was the future generations that the Elders considered at the time of treaty
making.
6.
These
restrictions imposed on Indigenous Peoples by the state prohibit the full
intent of the original treaties from being implemented. Indigenous Peoples
spend extraordinary time and their limited funds fighting for their basic
rights guaranteed under the original treaties.
The lands of the Treaty areas are being depleted from their resources
causing damage to the animals, plants, waters, fish and other living organisms
leaving Indigenous Peoples dependent on the colonizers for their basic needs
from clothing to health care.
There are other factors related to the implementation
of a Treaty:
1.
There
is the difficulty of the oral and written version of the treaties. Governments tend to follow the written
version which contains much general and ambiguous language especially with
respect to bring the words into language giving it life as intended. In the new arrangements made under so-called
land claims - the agreements are general and have ambiguous language,
especially with respect to programs, funding and technical assistance. It is a
huge problem for the so-called modern land claim groups to have their
agreements implemented.
2.
In
relation to new land claim agreements, there is a general failure to index
compensation to take into account the impact of inflation and delayed capital
payments.
3.
There
were no appropriate mechanisms included in the original treaties and the
modern-agreements related to implementation and that implementation would be
worked out through a process of continuing negotiations.
4.
There
is a perception on the part of governments that programs are not negotiable
regardless of the words contained in the original treaties or the modern
agreements.
5.
In
most agreements, there are no provisions to discuss the view of the Indigenous
Peoples. It is a government driven process which is unilateral and unyielding
that undermines the spirit of making a treaty.
Item 3 (c)
The practical experiences from negotiating process are
given in point form:
1.
The
process is long and cumbersome. For
example, the state of Canada does not have a policy on Treaty implementation.
There are two broad and general categories: land claims and treaty land
entitlement. Both of these process
require at the end of the day that Indigenous Peoples must give certainty or
“non-assertion undertakings” to the government in exchange for an agreement. A
“non-assertion” undertaking means that Indigenous Peoples are locked into the
written text of the agreement based on the colonizers language and passed
through the parliament making any amendments to the original text very
difficult if possible.
2.
Canada
wants the negotiations to be done within the context of the state laws rather
than recognizing Indigenous laws and governments. If an Indigenous Nation wants to negotiation
based on their laws and governments, the government puts them to the bottom of
the list of negotiations.
3.
In
Canada, the state controls all the funds for negotiations. In this way, the state officials can
arbitrarily decide who is funded and to what level. In some instances, Indigenous Peoples
negotiated for more than ten years and going into debt up to $50 million
Canadian dollars. As the debt mounts,
the pressure to make an agreement becomes more intense.
4.
The
state has more resources making more ably to drag on negotiations to wear down
the Indigenous Peoples.
5.
There
is a general starting point that the lands and resources of Indigenous Peoples
have been vested in the Crown in complete violation of international,
commonwealth, English common law and Canadian law.
6.
There
are many preconceived notions such as three party interests in the lands of
Indigenous Peoples. If Indigenous Peoples are the owners of the lands - how can
a third party have an interest in their lands and resources without the consent
of the Indigenous Peoples?
7.
There
are no effective mechanisms for consultation and getting the consent for use of
the land and resources of Indigenous Peoples living under treaties despite
rulings from various courts within the state recognizing the need to have an
effective consultation process. Some courts in Canada have written that there
might be a need to get the fully informed consent of the Indigenous Peoples
when a treaty right is going to be impinged or interfered with.
8.
There
is no attempt by the state to implement decisions of the courts. It might take several million dollars to take
a case to the Supreme Court of Canada. When a decision is made in favour of
Indigenous Peoples, there are no political decisions to implement the decision.
As a result, Indigenous Peoples question the true nature of the concept rule of
law. What law? When is it implemented?
Only when it benefits the colonizers seem to be the answer.
Item 4 (a)
Roles of the UN
The Study on Treaties (E/CN.4/Sub.2/1999.20) made a
number of important findings on the nature of Indigenous Treaties and
international law. It seems that the UN
has a real role to play with regard to implementation of the Treaties. The whole issue of exhaustion of internal
mechanisms within a state makes it almost impossible for Indigenous Peoples to
access the UN system. At any rate, the present UN system does not have a
mechanism for Indigenous Peoples to use when dealing with violations of the
Treaties. There is no effective state mechanism to deal with disputes arising
from Treaty violation. Different states have developed and controlled
tribunals, claims panels and commissions. These different internal bodies have
not brought about an equitable and lasting resolution to the problems created
by Treaty violations. Most treaty violation usually occurs as a result of a
state intervention in the lives of the Indigenous Peoples. There should be an external process at the UN
when there is no effective dispute resolution within a state. The dispute resolution process must be
developed on an equal basis with Indigenous Peoples. Indigenous laws and legal
norms must form an integral part of the process. The mechanism has to be
independent and free from political interference. The international system needs to recognize
the collective nature of the rights of Indigenous Peoples and the collective
rights to their lands and resources. An appropriate dispute resolution
mechanism must have international supervision of disputes arising from Treaty
violations. Treaties were made with independent sovereign nations. Indigenous
Peoples were not subjects of the Crowns of Europe. Treaties were made to ensure a peaceful
settlement of Indigenous territories.
The fact that settlement has occurred in Indigenous lands does not
diminish Indigenous Peoples international legal persona. As the Special Rapporteur wrote in his final
report, the treaties continue “to be fully in effect and consequently are
sources of rights and obligations for all the original parties to them (or
their successors) who shall fulfill their provisions in good faith.” The United
Nations has a role to fulfill if there is going to be justice for Indigenous
Peoples.
-----
The views
expressed in this paper do not necessarily reflect those of the OHCHR.
