Recognition and Coexistence of Aboriginal Land Rights in Canada

Recognition and Coexistence of Aboriginal Land Rights in Canada

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John Ahni Schertow
February 7, 2007
 

The following article was written by Arthur Manuel, and published in The First Nations Strategic Bulletin (see below)

Human Rights: Recognition and Coexistence of Aboriginal Land Rights in Canada

In order to better understand the federal Comprehensive Claims Policy, the British Columbia Treaty Process, Negotiation Loan Funding, the Agreements-in-Principles and the 3 initialed Final Agreements of the Lheidli T’enneh, Tsawwassen and Maa-nulth, it is important to know that regardless of wherever you go there will always be collaborators who will let Human Rights violations happen.

The Federal Comprehensive Claims Policy should not only be rejected based on the ‘common law’ recognition of Aboriginal Title, but also from the Human Rights perspective, where a number of UN Human Rights Bodies have clearly spelled out their objections in their Concluding Observations and Recommendations regarding Canada.

Indigenous Land Rights or Aboriginal Title, are part of our inherent rights, and our right to self-determination, that cannot be denied by Canada, because it is also recognized at the international level. In fact the right to self-determination and Aboriginal Title are at the core of the international relationship that exists between Indigenous Peoples and Canada. These rights have been recognized and clearly considered in the opinions of United Nations Human Rights Bodies responsible for the ‘Convention on the Elimination of All Forms of Racial Discrimination’ (CERD), the ‘International Covenant on Civil and Political Rights’ (ICCPR) and the ‘International Covenant of Economic, Social and Cultural Rights’ (ICESCR).

The ‘Committee on the Elimination of Racial Discrimination’ in August 2002 said:

‘330. The Committee expresses concern about the difficulties which may be encountered by Aboriginal peoples before the courts in establishing Aboriginal title over land. The Committee notes in this connection that to date no Aboriginal group has proven Aboriginal title, and recommends that the State party examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before the courts.’1

The Canadian government or State Party has not followed up on the Concerns and Recommendations that Canada ‘examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before the courts’. In addition the Committee clearly drew the link between economic marginalization and ongoing dispossession of our lands as being the main source of impoverishment we suffer. The non-recognition or extinguishment of Aboriginal title violates our Human Rights and attacks our Human Dignity as Indigenous Peoples.

‘331. The Committee views with concern the direct connection between Aboriginal economic marginalization and the ongoing dispossession of Aboriginal people from their land, as recognized by the Royal Commission. The Committee notes with appreciation the assurance given by the delegation that Canada would no longer require a reference to extinguishment of surrendered land and resource rights in any land claim agreements. The Committee requests that in the next periodic report, information be provided on the significance and consequences of limitations imposed on the use by Aboriginal people of their land.’2

In addition, CERD expressed appreciation that Canada will no longer ‘require a reference to extinguishment of surrendered land and resource rights in any land claims agreements’. Yet this and other committees shared the concern that the end effect of current policies would still de facto be extinguishment. Extinguishment is the only legal technique that Canada has to finally confirm that Canada and the provinces have 100% power or jurisdiction over our land and our resources. The only peoples who can give this 100% power or jurisdiction to Canada is us, the Indigenous Peoples ourselves, by signing on to the so-called modern treaty arrangements. In international terms this would be called giving our free prior informed consent to a land agreement with Canada. The international community has told Canada that extinguishment of Indigenous land rights is a violation of the Human Rights of Indigenous Peoples and are concerned this continues to be the ultimate outcome of existing land claims policies and all agreements resulting from them in Canada.

The next UN Committee hearing a report on Canada was the United Nations International Human Rights Committee in April 2006 and again they expressed concern with regard to Canada’s Periodic Report on International Covenant on Civil and Political Rights on the ‘establishment of alternative policies to extinguishment of inherent aboriginal rights in modern treaties’.

‘8. The Committee, while noting with interest Canada’s undertakings towards the establishment of alternative policies to extinguishment of Inherent Aboriginal Rights in modern Treaties, remains concerned that these alternatives may in practice amount to extinguishment of Aboriginal Rights (arts. 1 and 27).

The State party should re-examine its policy and practices to ensure they do not result in extinguishment of inherent aboriginal rights. The Committee would also like to receive more detailed information on the comprehensive land claims agreement that Canada is currently negotiating with the Innu people of Quebec and Labrador, in particular regarding its compliance with the Covenant.’3

The Human Rights Committee actually asked Canada to ‘re-examine its policy and practices to ensure they do not result in extinguishment of inherent aboriginal rights’. The International Committee on Economic, Social and Cultural Rights also picked up on this concern in their Concluding Observations in May 2006, new approaches do not differ much from extinguishment.

’16. The Committee, while noting that the State party has withdrawn, since 1998, the requirement for an express reference to extinguishment of Aboriginal rights and titles either in a comprehensive claim agreement or in the settlement legislation ratifying the agreement, remains concerned that the new approaches, namely the ‘modified rights model’ and the ‘non-assertion model’, do not differ much from the extinguishment and surrender approach. It further regrets not having received detailed information on other approaches based on recognition and coexistence of rights, which are currently under study.’4

In fact the Committee clearly identified the ‘modified rights model’ and the ‘non-assertion model’ as being the same as the extinguishment, or so-called cede and surrender approach. Furthermore the Committee commented that it regretted the fact that Canada did not provide any detailed information on ‘other approaches based on recognition and coexistence of rights’. Of course Canada skirted the issue and did not provide any substantive response because as a matter of fact Canada has no policies or other approaches based on the recognition of Aboriginal Title and Rights.

The most recent UN Committee to hear a report on Canada, the Committee on Economic, Social and Cultural Rights, reasserted the recommendation of the United Nations International Human Rights Committee that Canada re-examine their existing federal Comprehensive Land Claims Policy to ‘ensure that policies and practices do not result in extinguishment of those rights and titles’.

’37. The Committee urges the State party to re-examine its policies and practices towards the inherent rights and titles of Aboriginal peoples, to ensure that policies and practices do not result in extinguishment of those rights and titles.’5 The extinguishment policy, the federal Comprehensive Land Claims Policy, has always been the reason why some Indigenous Peoples have decided not to negotiate under the British Columbia Treaty Process. In fact the Assembly of First Nations (AFN), Delga- muukw Implementation Strategic Committee (DISC) worked very hard to get the Canadian government to review this policy but Robert Nault, Minister of Indian Affairs stated in a letter to the Interior Alliance in December 2000 that ‘the Comprehensive Claims Policy is sufficiently flexible to accommodate the concerns of First Nations. Accordingly, a major review of the policy at the national level is not contemplated at this time.’

More recently, the federal government has indicated they would reconsider this position but they are contemplating only including groups that are negotiating to participate in this review. This would be very prejudicial to those Indigenous Peoples who have decided out of principle not to negotiate with the federal government because of the extinguishment
policy. Any review if it is to be legitimate and genuine re-examination of the Comprehensive Land Claims Policy must include the Indigenous Peoples who have decided – out of principle – not to negotiate with Canada because the existing extinguishment policy violates our Human Rights as Indigenous Peoples.

Canada spends a lot of time educating Canadians and the world about Human Rights but is very abrasively silent when it comes to the Human Rights of Indigenous Peoples in Canada. Canada tries to ignore the Human Rights of Indigenous Peoples. Canada tries to unilaterally assimilate Indigenous Peoples Human Rights inside the Human Rights of the Canadian settler population. But the international Treaties, such as the UN Covenants and Conventions, the judicial recognition of Aboriginal title and the intervention of international Human Rights Bodies have stopped Canada from forcefully making Indigenous Peoples virtual settlers.

Canada spends a lot of time and money to make sure that Canadians and the World do not realize how their policies violate the Human Rights of Indigenous Peoples. The formal education system lacks any credibility in telling Canadians about the legitimate history of the very indigenous peoples that Canada is trying to assimilate. This means that our peoples’ Human Rights are being deliberately left out of the Human Rights landscape of Canada. This makes it easier for Canada to extinguish our land rights and makes our peoples landless. Canada continues to ignore the recommendations by the International Human Rights Bodies when they deliberately and systemically violate the Human Rights of Indigenous Peoples by pursuing the ‘Modified Rights Model’ of extinguishing Indigenous land rights.

The Leheidli T’enneh, Tsawwassen and the Maa-nulth Final Agreements clearly in their own wording describe the extinguishment of Indigenous land rights by modifying them to be ‘estates in fee simple’.

Fee Simple Conversion Model

Lheidli T’enneh
For greater certainty, the aboriginal title of Lheidli T’enneh anywhere that it existed in Canada before the Effective Date, including its attributes and geographic extent, is modified and continues as the estates in fee simple to those areas identified in this Agreement as Lheidli T’enneh Lands and Lheidli T’enneh-owned private fee simple lands described in
Appendix H.6

Tsawwassen
For greater certainty, the aboriginal title of Tsawwassen First Nation anywhere that it existed in Canada before the Effective Date, including its attributes and geographic extent, is modified and continues as modified as the estates in fee simple to those areas identified in this Agreement as Tsawwassen Lands and Other Tsawwassen Lands.7

Maa-nulth
1.11.4 For greater certainty, the aboriginal title of each Maa-nulth First Nation anywhere that it existed before the Effective Date, including its attributes and geographic extent, is modified and continues as modified as the estates in fee simple to those areas identified in this Agreement as the Maa-nulth First Nation Lands and Other Maa-nulth First Nation Lands of that Maa-nulth First Nation.8

This means that Canada is deliberately violating the Human Rights of Indigenous Peoples by not following the Recommendations of the Human Rights Bodies by continuing to try to extinguish Aboriginal Title and by not reviewing their existing policy to make sure that the federal Comprehensive Land Claims Policy does not extinguish Aboriginal Title.

In fact, Indigenous groups that participate in negotiating under the British Columbia Treaty Process, under the existing federal Comprehensive Land Claims Policy are complicit in the violation of the Human Rights of Indigenous Peoples. They are caught in a conflict of interest, because they have been borrowing money under the Negotiation Loan Funding, which has paid for their lawyers and own salaries, while Indigenous Peoples will have to pay the price through the extinguishment of their Aboriginal Title. When viewing the above Human Rights Recommendations from a global perspective and looking at the lack of their implementation, it becomes evident that there is ‘high level of corruption’ in the current processes.

Canada’s current policies violate our human rights as Indigenous Peoples and the international recommendations and court decisions that call for recognition of our land rights and coexistence between Indigenous Peoples and settlers. In fact, Canada and British Columbia governments have lent millions of dollars for negotiations to Indigenous groups, with the condition that the final outcome be the extinguishment of Aboriginal Title under the Modified Rights Model. The Negotiation Loans are to be repaid from the top of the settlement. This means that the average Indigenous person does not even know that this is happening and the existing federal Comprehensive Land Claims Policy and the British Columbia Treaty Process is a rigged deck and Canada will win 100% control over Indigenous land and resources. It is corrupt because our Human Rights and Human Dignity will be violated under this process and International Human Rights Recommendations have clearly instructed Canada to not extinguish Aboriginal land rights.

The underlying corruption, enshrined in the federal Comprehensive Land Claims Policy, leads to our continued impoverishment caused by the non-recognition of Aboriginal Title. The impoverishment experienced by indigenous peoples because of the non-recognition of Aboriginal Title is a Human Rights violation. We are poor not because our land is poor but because the federal government does not implement our judicially recognized collective proprietary rights as Indigenous Peoples. The poverty created by this non-recognition, and human rights violation is now being used to force our elected leadership to negotiate on land rights under the condition that our land rights will be terminated at the end of the negotiation process.

The corruption of our Human Rights must be fought all the way from the ground to the highest level of government. If we do not fight this corruption then the Human Dignity of our future generations will always be lost in the kind poverty we have experienced. Indigenous peoples, the poverty stricken, the unemployed, the traditional land users and the Human Rights Activists are the only ones who can take on this fight. The federal government will try and buy off and co-opt our leadership to justify extinguishment of our land rights under the modified rights model. They will continue to hand out money and they will invoke the liabilities under the existing loans to put pressure on the leadership that has been benefiting from these monies for over a decade. Human Rights of the Indigenous Peoples are the responsibility of all the people, especially the grassroots people. We are the only force that is responsible for our well being. The nature of Human Rights is that they belong to the people and in the case of our land rights, they are collectively held by our people. That is the essence of self-determination. No consultant, no lawyer, no leader can feel the pain you suffer when you feel your Human Dignity being violated as you watch your children go in need as Canadians and British Columbians take the wealth and profit from your territory and you only get a welfare cheque.

This kind of corruption of our Human Rights must be fought to the land is at stake. We have forced the Canadian and British Columbia to the international level and it is up to us to keep pushing these governments to address our right to coexist as peoples based on the recognition of our Human Rights and Human Dignity. We need to stand up to the Canadian and British Columbian government and tell them just because they do not recognize our Aboriginal Title; they have no right to extinguish our Aboriginal Title. This means that our Aboriginal Title is like Crown Title in that Aboriginal Title continues to exist despite the fact it is being ignored and even violated because it is a fundamental Human Right of us, the Indigenous Peoples. Aboriginal title is a fundamental form of ‘radical title’ which exists despite the assertion of sovereignty by past colonial governments, it exists under every piece of land, even land held by individual settlers and we should be getting part of the monies governments collect from these lands.

It is critical for Indigenous Peoples to see the connection between our Land Rights and our Human Rights and Human Dignity as Indigenous Peoples. It is this connection that the existing federal Comprehensive Claims Policy wants to extinguish. They want to see our fundamental rights limited to the paper of the final agreements so they can continue to enjoy the abundant economies they enjoyed up to now asserting exclusive jurisdiction over our lands. Fee simple is just a private white settler approach of economically controlling our land, but fee simple is also subject to Canada and British Columbia governments’ exclusive control if taxes are not paid. It is this kind of property right that the federal Comprehensive Land Claims Policy wants to modify Aboriginal Title too and is the kind of property the Nisga’a Final Agreement accepted. This means that even reserve lands will no longer be inalienable, they will be privatized and can be put on the market like settler land and if you fail to pay your property taxes the government will take your plot of land.

Canadians need to realize that there are some very serious Human Rights issues centered on the failure of Canada to follow the above international recommendations. We as Indigenous Peoples know that if we do not stand up for our land rights, Canada and the provinces will use the argument that we have slept on our rights. Therefore, Indigenous Human Rights Activists have challenged the federal and provincial policies to not recognize our Aboriginal Title and develop our lands and resources without our consent. Injunctive relief based on the balance of Convenience, police and military forces, politicization and criminalization have and continue to be used to legitimize the violation of our Human Rights to Our Land.

Oka, Ipperwash, Gustafson Lake, Sutikalh, Sun Peaks, Cheam and Caledonia are all examples of how the Canadian government’s existing Indigenous land policies have failed and how Canada offers no Human Rights Security to Indigenous Peoples. In fact, Canada has criminalized thousands of Indigenous Human Rights Activists. The lack of Human Rights Security in Canada causes the majority of Indigenous Peoples to be impoverished on existing Indian Reserves while Canada and the provinces enjoy 100% control over our land and our resources for their exclusive economic benefit. This is the essence of the Human Rights violation that the international community is telling Canada to rectify by no longer extinguishing Aboriginal Title. Extinguishment of Aboriginal Title will forever impoverish us as peoples. Like our Elders say, everything comes from the land and the land is ours. This we cannot deny or walk away from it, we are only indigenous peoples in our own land.

Canada must be held accountable for not following the Recommendations made by the above Human Rights Bodies especially since Canada is a member of the United Nations Human Rights Council. Canada needs to clean up its own backyard before they can legitimately be a member of the UN Human Rights Council in good standing. International observation is needed in order to help level the playing field between Indigenous Peoples and Canada. This does not really balance the forces but it does put in context that we are fighting for the recognition of the Human Rights of Indigenous Peoples and that Canada is violating our Human Rights as Indigenous Peoples.

It is the exclusive use of Our Land and Our Resources that is the foundation for the high level of Human Rights that Canadians and British Columbians enjoy. It is not recognizing the freedom of Indigenous Peoples to freely dispose and enjoy their Aboriginal Title that benefits Canadians and British Columbians and impoverishes us. This must stop. We must develop a mutual respect for each others Human Rights and find a way to recognize and develop mutually acceptable ways that our Human Rights can coexist.

Indigenous Peoples, especially the poor and dispossessed, the landless, especially our youth need to look deeply into our deprivation not in terms cashing-in from the system but in terms of fighting for our Human Rights. We must not just think about quick fixes but we need to think of our future generations. We have gone through a lot. The last 500 years in the Americas, and only over one hundred years in British Columbia, have seen the depletion of our resources and destruction of the ecological biodiversity of our territories; we have an obligation to help address these problems. Recognition of our proprietary rights as Indigenous Peoples goes well beyond addressing our Human Rights and addressing our economic relationship to our land, but also the conservation of our environment. The existing domestic policy precludes this kind of harmony between Indigenous Peoples and settlers and undermines any kind of maturity that can be grown from the coexistence of Indigenous Peoples and settlers.

Indigenous Peoples need to stand up for their Human Rights and Canada must follow the Recommendations given them by the International Human Rights Bodies, if we are to fully lay to rest the existing problems the federal Comprehensive Land Claims Policy and the British Columbia Treaty Process create for our people on the ground and for our future generations.

Arthur Manuel
Spokesperson, Indigenous Network on Economies and Trade (INET)
amanuel@telus.net

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