Robert A. Williams, Jr.E. Thomas Sullivan Professor of Law and American Indian StudiesFaculty Co-Chair, University of Arizona Indigenous Peoples Law and Policy ProgramLead Counsel, Hul’qumi’num Treaty Group v. Canada

“… [T]he burning question that should occupy our time should concern where the complex of ideas that constitute Western civilization originated, how they originated, and whether they have any realistic correspondence to what we can observe and experience in nature.”Vine Deloria, Jr., “The Trickster and the Messiah”

Savage Anxieties: Indigenous Peoples' Human Rights and the Not-So-Special

Case of Hul'qumi'num Treaty Group v. Canada before the Inter-American Human Rights Commission

The European Colonial Era Doctrine of Discovery and Indigenous Peoples’ Human Rights

(issued by King James I, April 10, 1606)

“...We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government: Do, by these our Letters Patents, graciously accept of, and agree to, their humble and well-intended Desires…”

The First Charter of Virginia

“…On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.… But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle... This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”

Johnson v. McIntosh (1823)*

CHIEF JUSTICE MARSHALL:

John Marshall

*A computer search reveals that up to forty-four Canadian cases have cited Johnson v. M’Intosh.

William v. British Columbia (The Tsilhqot’in Case)2012 BCCA 285

“The basic concepts underlying claims of Aboriginal title and Aboriginal rights are straightforward. First Nations occupied the land that became Canada long before the arrival of Europeans. …European explorers considered that by virtue of the “principle of discovery” they were at liberty to claim territory in North America on behalf of their sovereigns (see Guerin v. The Queen, [1984] 2 S.C.R. 335 at 378). While it is difficult to rationalize that view from a modern perspective, the history is clear. As was said in Sparrow :

[W]hile British policy towards the native population was based on respect for their right to occupy their

traditional lands, … there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown; see Johnson v. M'Intosh (1823), see also the Royal Proclamation itself ; Calder v. Attorney General of B.C. …”

R. v. Syliboy (1929) 1 D.L.R. 307 (Canada)

…But the Indians were never regarded as an independent power. A civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages’ rights of sovereignty, even of ownership, were not recognized. Nova Scotia had passed to great Britain not by gift or purchase or even by conquest of the Indians but by treaty with France, which had acquired it by priority of discovery and ancient possession, and the Indians passed with it….

…In my judgment the Treaty of 1752 [with the Micmac] is not a treaty at all and is not to be treated as such; it is at best a mere agreement with a handful of Indians giving them in return for good behavior food, presents, and the right to hunt and fish as usual — an agreement that, as we have seen, was very shortly after broken.

Ancient Greek Colonization of the Barbarian World

“We sailed hence, always in much distress, till we came to the land of the lawless and inhuman Cyclopes. Now the Cyclopes neither plant nor plow, but trust in providence, and live on such wheat, barley, and grapes as grow wild without any kind of tillage, and their wild grapes yield them wine as the sun and rain may grow them. They have no laws or assemblies of the people, but live in caves on the tops of mountains; each is lord and master in his family, and they take no account of their neighbors.”

Homer, The Odyssey, Book IX

Western Civilization and the Language of Savagery:

“…Wherefore the poets say, It is meet that Hellenes should rule over barbarians; as if they thought that the barbarian and the slave were by nature one…

…Wherefore Hellenes do not like to call Hellenes slaves, but confine the term to barbarians. Yet, in using this language, they really mean the natural slave of whom we spoke at first; for it must be admitted that some are slaves everywhere, others nowhere…”

Aristotle’s Theory of Natural Slavery

Aristotle (384 BC–322 BC)

The Roman Empire and the Barbarian World

Imperial Rome and the Language of Savagery

“They were wild, savage and warlike, tribes which no one who has ever lived would not wish to see crushed and subdued.” Cicero, 1st Century B.C.

Western Civilization’s Wars against the Savage

• Charlemagne’s Wars against Tribes of Europe

• The Christian Crusades to the Holy Lands

• The Teutonic Knights and Pagan Lithuanians

• The Papal Bull Laudabiliter and the “Wild Irish”

• The Spanish Reconquista

• Inquisition, Expulsion of Jews

• Romanus Pontifex and the Papal Donation of Africa

• Inter Caetera and the Papal Donation of the New World

LORD EDWARD COKE:

“… All infidels are in law perpetual enemies (for the law presumes not that they will be converted, that being a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace …a Pagan cannot have or maintain any action at all [in the King's courts].

…If a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity ….”

Calvin’s Case (1608)

Lord Edward Coke

The Peace of Westphalia, 1648

Established modern European state system and following principles:

• Sovereignty of nation-states and the fundamental right of political self-determination

• Legal equality between nation-states • Internationally binding treaties between states • Non-intervention of one state in the internal affairs of another state • Cuius regio, eius religion (“Whose rule, his religion”)

“The Indians really have no right to the lands they claim, nor are they of any actual value or utility to them; I cannot see why they should either retain these lands to the prejudice of the general interests of the Colony, or be allowed to make a market of them either to Government or to individuals.”

Joseph Trutch, Commissioner of Land Works for the colonial government in British Columbia, 1867

The Origins of the “Denial” Policy In British Columbia

“I think they are the ugliest and laziest creatures I ever saw, and we should, as soon think of being afraid of our dogs as of them.” Letter from Joseph Trutch to his wife Charlotte Trutch, expressing his views on the Indians of the Oregon Territory , 23 June 1850 (Trutch Papers)

Joseph Trutch, c. June 1870

The 1884 E &N Railway Grant and the Establishment of Reserves

Johnson v. McIntosh (1823)

CHIEF JUSTICE MARSHALL:

“…The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.”

The United Nations Decolonization Process and the “Salt Water Thesis”

United Nations Human Rights System The United Nations International Covenant on Civil and Political Rights

Article 1: “All 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 27: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to those minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

Canada’s Defense in Mikmaq Tribal Society v. Canada

UN Human Rights Committee (1980)

“International, American and Canadian law do not recognize treaties with North American Native People as international documents confirming the existence of these tribal societies as independent and sovereign states. These treaties are merely considered to be nothing more than contracts between a sovereign and a group of its subjects”

International Labour Organization (No. 169) on Indigenous and Tribal Peoples

Inclusion of provisions concerning indigenous children in the UN Convention on the Rights of the Child

Inclusion of provisions concerning indigenous peoples in major international environmental instruments

The UN Working Group on Indigenous Populations

The Proposed American Declaration on the Rights of Indigenous Peoples (OAS)

The Modern Indigenous Human Rights Movement

UN Human Rights Committee

General Comment No. 23, interpreting article 27 (1994)

“With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.”

United Nations Declaration on the Rights of Indigenous Peoples (as adopted by the UN General Assembly, September 13, 2007)

Article 26

“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”

United Nations Declaration on the Rights of Indigenous Peoples

Article 28

“Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, of a just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Article 3

“Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Article 19

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

The Right to Consultation under theUN Declaration on the Rights of Indigenous Peoples

Report of the UN Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous peoples, S. James Anaya (2008)

“The United Nations Declaration on the Rights of Indigenous Peoples represents an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law. The product of a protracted drafting process involving the demands voiced by indigenous peoples themselves, the Declaration reflects and builds upon human rights norms of general applicability, as interpreted and applied by United Nations and regional treaty bodies, as well as on the standards advanced by ILO Convention No. 169 and other relevant instruments and processes.”

Canada’s Position on the UN Declaration

"...Canada's position has remained consistent and principled. We have stated publicly that we have significant concerns with respect to the wording of the current text, including the provisions on lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of indigenous peoples, member States and third parties.”

Statement by Ambassador McNee to the General Assembly on the Declaration on the Rights of Indigenous Peoples, 13 September 2007.

Inter-American Human Rights System (OAS) Charter of the Organization of American States

Proclaims commitment of Member States to protect human rights.

Inter-American Commission on Human Rights- OAS Charter Organization; Comprised of 7 independent experts

- Issues State and thematic reports; adjudicate human rights complaints.

American Declaration on the Rights and Duties of ManAffirms many of the same rights as those in Universal Declaration of Human Rights:

Article 2: “All persons are equal before the law and have the rights and duties established in the Declaration, without distinction as to race, creed, sex, language, creed or any other factor.”

Article 23: “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”

The Case of Awas Tingni vs. Nicaragua Inter-American Court of Human Rights

Judgment of August 31, 2001

The Case of Awas Tingni vs. Nicaragua Decision of the Inter-American Court (2001)

• Nicaragua violated the right to property by granting concessions to exploit the resources on Awas Tingni traditional lands and by not titling and demarcating those lands in favor of the community. The right to property includes the collective right of indigenous peoples to the enjoyment of their traditional lands and natural resources.

• “…For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.”

• Nicaragua must cease acts which could cause agents of the State, or third parties, to affect the existence, value, use or enjoyment of the property of the Awas Tingni community and adopt measures of legislative, administrative, and whatever other character for the effective delimitation, demarcation, and titling of indigenous lands.

The Case of Dann vs. the United States

Inter-American Commission on Human Rights Report of October 2001 (Released July 2002)

“Where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, [indigenous peoples have the right to] recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost.”

Case of the Saramaka People v. Suriname Inter-Am. Ct. H.R., Judgment of November 28, 2007

• “First, the State must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan … within Saramaka territory. By ‘development or investment plan’ the Court means any proposed activity that may affect the integrity of the lands and natural resources within the territory of the Saramaka people, particularly any proposal to grant logging or mining concessions.

• Second, the State must guarantee that the Saramakas will receive a reasonable benefit from any such plan within their territory.

• Thirdly, the State must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment.”

Case of the Saramaka People v. Suriname Inter-Am. Ct. H.R., Judgment of November 28, 2007

“…These safeguards are intended to preserve, protect and guarantee the special relationship that the members of the Saramaka community have with their territory, which in turn ensures their survival as a tribal people.”

Canada’s Comprehensive Claims Process, the British Columbia Treaty Commission, and

Indigenous Peoples Human Rights

UN HUMAN RIGHTS COMMITTEE Comments on Canada (1999)

The Human Rights Committee recommended that Canada reform its laws and internal policies to guarantee the full enjoyment of rights over land and resources for the indigenous people of Canada. Additionally, the Committee recommended that Canada abandon “the practice of extinguishing inherent aboriginal rights … as incompatible with article 1 of the Covenant. “

British Columbia’s First Nations

Canada’s Negotiating Mandates in the BCTC Process

• “Private lands” are not “on the table”

• Just compensation is not on the table/ BCTC process is a “political process”/ • “Interest-based as opposed to rights-based approach”

• “Modified Rights/ Non-Assertion Model”

• Indemnity requirement and full and final settlement/ extinguishment for a treaty

• “Litigate or negotiate” policy

• The loan policy - “397M - and growing” (Vancouver Sun October 6, 2010)

• Municipal model of governmental powers/ refusal to recognize inherent aboriginal right of self-government

“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.”

UN Committee on Economic, Social and Cultural Rights Concluding Observations: Canada (May 22, 2006), at para. 16.

PETITIONto the

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

submitted by THE HUL’QUMI’NUM TREATY GROUP

againstCANADA

Submitted May 10, 2007

112. By unilaterally granting rights and interests in the traditional lands and resources of the Hul’qumi’num peoples to private third parties without ever consulting them, seeking their consent, or offering restitution or payment of just compensation in return for a valid extinguishment of their aboriginal title and property rights and by permitting damaging logging and other development activities on these lands used, occupied and relied upon by the Hul’qumi’num for their cultural survival, Canada is acting in violation of the right to property, the right to restitution for its taking, the right to cultural integrity, the right to consultation and other human rights belonging to the Hul’qumi’num as indigenous peoples.

18. The CVRD Development Services Department Report for 2007 shows rapid growth in the key development permitting areas of zoning amendments, subdivision activity, and development permit applications over the past decade (1998-2007)…The statistics on the “Potential Number of Parcels Created” by subdivision applications are particularly alarming, showing a ten-year trend toward ever larger and larger subdivisions, capped by 2007’s near threefold increase over the prior year (from 270 to 752 potential parcels!):

1998- 52

1999- 92

2000- 97

2001- 115

2002- 185

2003- 303

2004- 401

2005- 316

2006- 270

2007- 752

Canada’s Submission in Response to the Commission

(May 11, 2008)

• Canada argues that “the HTG’s petition is inadmissible because the HTG has not exhausted readily available domestic remedies.”

– “HTG can address its claims through negotiations under the BCTC Process.”

– “If the HTG believes that these negotiations are not adequate to address the HTG concerns, the HTG could use readily available domestic legal remedies to address its claims.”

Canada’s Response:

95. The HTG asserts that Canada's courts "have never legally recognized or affirmed one single square inch of aboriginal title rights belonging to indigenous peoples in their traditional lands that were granted by the State in fee simple to private third parties in British Columbia.”

96. The fact that a Canadian court has not made such a specific declaration to date does not demonstrate that a Canadian court never would, in a properly plead case…

Inter-American Commission on Human RightsREPORT No. 105/09

Petition 592-07, AdmissibilityHul’qumi’num Treaty Group v. Canada

October 30, 2009

37. …[S]ince 1994, the HTG, through the treaty negotiation process of the BCTC, has brought to the attention of official authorities the central facts contained in the petition, to wit: legal recognition and/or restitution of their ancestral lands, including lands that are in private hands, as well as the implementation of a process of prior consultation as indispensable measures to protect those lands from the actions of private third parties. However, the BCTC process has not allowed negotiations on the subject of restitution or compensation for HTG ancestral lands in private hands, which make up 85% of their traditional territory. Since 15 years have passed and the central claims of HTG have yet to be resolved, the IACHR notes that the third exception to the requirement of exhaustion of domestic remedies applies due to the unwarranted delay on the part of the State to find a solution to the claim.

Inter-American Commission on Human RightsREPORT No. 105/09

Petition 592-07, AdmissibilityHul’qumi’num Treaty Group v. Canada

October 30, 2009

37. …Likewise, the IACHR notes that by failing to resolve the HTG claims with regard to ancestral lands, the BCTC process has demonstrated that it is not an effective mechanism to protect the right alleged by the alleged victims. Therefore, the first exception to the requirement of exhaustion of domestic remedies applies because there is no due process of law to protect the property rights of the HTG to its ancestral lands.

Inter-American Commission on Human RightsREPORT No. 105/09

Petition 592-07, AdmissibilityHul’qumi’num Treaty Group v. Canada

October 30, 2009

39. The IACHR also considers relevant the experiences of other Canadian indigenous groups described in the amicus curiae briefs filed with the IACHR, which show the difficulties they have faced when trying to access the legal remedies the State contends must be exhausted by the HTG in order to obtain recognition and protection of its ancestral lands. The Commission notes that the jurisprudence cited by the State recognizes the existence of the aboriginal title, the communal nature of indigenous property rights, and the right to consultation in the Canadian legal system. But, the amicus briefs show that none of these judgments has resulted in a specific order by a Canadian court mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands…

Inter-American Commission on Human RightsREPORT No. 105/09

Petition 592-07, AdmissibilityHul’qumi’num Treaty Group v. Canada

October 30, 2009

41. …The Commission notes that the legal proceedings mentioned above do not seem to provide any reasonable expectations of success, because Canadian jurisprudence has not obligated the State to set boundaries, demarcate, and record title deeds to lands of indigenous peoples, and therefore in the case of HTG, these remedies would not be effective under recognized general principles of international law.