Power Point-formatted handouts for a paper presented
at Stó:Lô Nation Conference 2001: Bridging the Millennia, Bridging Cultural and
Legal Traditions, April 5-7, 2001
Are Canada and BC Meeting International
Standards Regarding the Rights of Indigenous Peoples?
Stó:Lô
Nation and its Search for Justice
Ted Palys
Simon Fraser University
The Post-War Period
•
In the years following WWII, when the League of
Nations was disbanded and the United Nations was formed, two very important
documents (for our purposes) were created:
•
The United Nations Charter; and
•
The Universal Declaration of Human Rights
The UN Charter
•
Article 1 states that one purpose of the UN is
“To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples.”
•
However, for more than 50 years, Nation States
coveted that guarantee for themselves, but did not extend it to the
Indigenous peoples of the world.
The Universal
Declaration of Human Rights
•
Articulates individual rights that each of us has
by virtue of our existence.
•
Emerged from a process of drafting and
consensus-building, but is not literally “law” unless a nation signs on and
agrees to be bound to it.
•
But the document also has taken on a life of
its own that is independent of signatures.
•
The Universal Declaration has now been around
for 50 years, and even though there are nations that have not “signed on,” it
has become the standard by which any nation’s commitment to human rights is
judged.
•
Why? Because it has moral authority, and because
of constant use and reference, e.g., in court cases, other UN documents, etc.
•
Canada is a signatory, but even if it were not,
by this point it would be bound by it.
•
A limitation of the Universal Declaration is
that it deals only with individual rights vis-à-vis nation states, and
does not deal with any collective rights individuals have as a member of a
people.
The UN Working Group
on Indigenous Populations
•
The Working Group was formed in 1982. Its place
in the UN hierarchy is illustrated below:
|
UN General
Assembly
|
“Political”
levels
|
|
Economic
and Social Council (ECOSOC)
|
|
Commission
on Human Rights
|
|
Sub-Commission
on Prevention of Discrimination and Protection of Minorities
|
“Expert”
levels
|
|
Working
Group on Indigenous Populations
|
•
The Working Group has five members, all of whom
are non-Indigenous and seasoned “experts” with extensive UN credentials.
•
The Working Group has had two main projects:
•
Creating a UN Declaration on the
Rights of Indigenous Peoples
•
Study of “Treaties, Agreements and Other
Constructive Arrangements”
•
Revolutionary within the context of the UN
system for two main reasons:
•
Consultation and consent process meant that
Indigenous peoples for the first time were treated as “subjects” rather than
“objects” of international law.
•
Open participation rules resulted in more than
700 delegations participating over the 8 years during which the declaration was
developed.
The UN Declaration on
the Rights of Indigenous Peoples
•
After numerous drafts, a final Declaration
was ratified by both Indigenous delegations and the Working Group in 1994, then
sent through the UN approval process.
•
Approved by SubCommission (experts); now at
Commission (political) level.
•
Whatever the outcome there, moral authority
rests in the Working Group version.
•
According to Working Group Chair Mme Daes and
member Miguel Alfonso-Martinez, the objective now is for the Declaration
to be used in a manner that, as happened with the Universal Declaration, will ingrain it as an international
standard.
•
First use that I know of in Canada was at the
Supreme Court of Canada during arguments in Delgamuukw v The Queen.
So … How do
Canada and BC Fare Against These Standards?
•
I suggest two measures:
•
the Treaty Process; and
•
“Aboriginal justice” initiatives such as Stó:Lô
Nation’s Qwi-qwelstom
The Treaty Process
•
The federal and BC governments continue to
require “extinguishment” and “surrender” of Aboriginal Rights as a prerequisite
to finalizing a treaty. Any treaty will include a finite list that will define
that FN’s rights forever.
•
Different wording comes up, but the objective
is always the same -- terminate Aboriginal Rights and lock Aboriginal Peoples
into the year 2001.
•
In contrast, Article 44 of the Declaration
says:
“Nothing in this Declaration may be
construed as diminishing or extinguishing existing or future rights Indigenous
peoples may have or acquire.”
•
For the Working Group, mutually beneficial and
respectful treatment requires that Indigenous Peoples, like the rest of us, are
granted an open-ended future.
•
Most important is the affirmation of the
equality of rights of Indigenous peoples, including, as peoples, their right to
self-determination.
•
For example, the preamble affirms that,
“Indigenous peoples have the right freely to
determine their relationships with States in a spirit of coexistence, mutual
benefit and full respect.”
•
Extinguishment, in contrast, is for benefit of
non-Indigenous peoples only.
Canada’s and BC’s
approaches to Aboriginal Justice
•
The federal Department of Justice, in
particular, continues to try and impose the agenda for “Aboriginal justice,” to
see themselves as the decision-makers as to which initiatives will be
encouraged, approved.
•
Community-based and driven initiatives such as Qwi-qwelstom
face an uphill battle.
•
In contrast, the Preamble to the Declaration
states:
“The
Charter of the UN, the Int’l Covenant on Economic, Social and Cultural Rights
and the Int’l Covenant on Civil and Political Rights affirm the fundamental
importance of the right of self-determination of all peoples, by virtue of
which they freely determine their political status and freely pursue their
economic, social and cultural development,”
and
“Nothing in the Declaration may be used to deny
any peoples their right of self-determination.”
In the interests of time, I
won’t consider the Draft Declaration in detail, but I’ll invite you to consider
the following articles, which clearly affirm the right of the Stó:Lô people to
reaffirm and develop their own systems of justice, without interference from
the Government of Canada and/or Province of British Columbia:
Article 3
“Indigenous peoples have the right of
self-determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development.”
Article 4
“Indigenous peoples have the right to maintain
and strengthen their distinct political, economic, social and cultural
characteristics, as well as their legal systems, while retaining their rights
to participate fully, if they so choose, in the political, economic, social and
cultural life of the State.”
Article 26
“Indigenous peoples have the right to own,
develop, control and use the lands and territories, including the total
environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna
and other resources which they have traditionally owned or otherwise occupied
or used. This includes the right to the full recognition of their laws,
traditions and customs, land-tenure systems and institutions for the
development and management of resources, and the right to effective measures by
States to prevent any interference with, alienation of or encroachment upon
these rights.”
Article 33
“Indigenous peoples have the right to promote,
develop and maintain their institutional structures and their distinctive
juridical customs, traditions, procedures and practices, in accordance with
internationally recognized human rights standards.”
Conclusion
•
Canada and BC have a long way to go before they
live up to the standards affirmed in the Declaration.
•
The BC Liberals, the government-in-waiting, are
still arguing for options that were contained in the Trudeau-Chretien 1969 White Paper, and roundly rejected by
Aboriginal peoples across the country.
•
The Declaration provides a useful
reference point for just how much BC’s First Nations are constantly being asked
to give away, and the illegitimacy of those requests.