Robert A. Williams, Jr.E. Thomas Sullivan Professor of Law and American Indian StudiesLead Counsel, Hul’qumi’num Treaty Group v. Canada

Indigenous Peoples Property Rights in the Inter-American Human Rights System:

Hul’qumi’num Treaty Group v. Canada

The United Nations Decolonization Process and the “Blue 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.”

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.”

UN Committee on the Elimination of Racial Discrimination General Recommendation No. 23 on Indigenous Peoples (1997)

“In many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms … they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.”

“In many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms … they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.”

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.

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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.

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.

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.

Inter-American Human Rights System (OAS) Instruments

Charter of the Organization of American StatesProclaims commitment of Member States to protect fundamental human rights.

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.”

Institutions Inter-American Commission on Human Rights

- Authority based on OAS Charter; Comprised of 7 independent experts

- Can issue State reports, theme reports and adjudicate individual, group and inter-state complaints.

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

Judgment of August 31, 2001

(“The Miskito Coast”) (King Robert Henry Clarence and court 1893)

The Case of Awas Tingni vs. Nicaragua Background of the Case

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

• Nicaragua violated the right to property (article 21) 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 land titling process must be in accordance with the customary law, values, usage, and customs of the communities and with their full participation.

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.”

U.N. Committee on the Elimination of Racial Discrimination (Early Warning and Urgent Action Procedure, United States of America, March 2006)

6. The Committee is concerned by the State party’s position that Western Shoshone peoples’ legal rights to ancestral lands have been extinguished through gradual encroachment, notwithstanding the fact that the Western Shoshone peoples have reportedly continued to use and occupy the lands and their natural resources in accordance with their traditional land tenure patterns. The Committee further notes with concern that the State party’s position is made on the basis of processes before the Indian Claims Commission, “which did not comply with contemporary international human rights norms, principles and standards that govern determination of indigenous property interests,” as stressed by the Inter-American Commission on Human Rights in the case Mary and Carrie Dann versus United States (Case 11.140,27 December 2002).

The Case of the Maya Indigenous Communities of the Toledo District vs. Belize

Decision of the Inter-American Commission (Report issued 2004)

Belize was found to have violated Article 23 of the American Declaration by failing to take effective measures to recognize the communal property rights to the lands traditionally occupied and used by the Maya, and by granting concessions to third parties to utilize the traditional property and resources of the Maya people without obtaining “effective consultations:” “[T]he right to use and enjoy property may be impeded when the State itself, or third parties acting with the acquiescence or tolerance of the State, affect the existence, value, use or enjoyment of that property.”

The independent nature of indigenous peoples’ property right:

“Accordingly, the organs of the inter-American human rights system have recognized that the property rights protected by the system are not limited to those property interests that are already recognized by states or that are defined by domestic law, but rather that the right to property has an autonomous meaning in international human rights law. In this sense, the jurisprudence of the system has acknowledged that the property rights of indigenous peoples are not defined exclusively by entitlements within a state’s formal legal regime, but also include that indigenous communal property that arises from and is grounded in indigenous custom and tradition….”

CASE OF SAWHOYAMAXA INDIGENOUS COMMUNITY V. PARAGUAY INTER-AMERICAN COURT OF HUMAN RIGHTS

(JUDGMENT OF MARCH 29, 2006)

1) traditional possession of their lands by indigenous people has equivalent effects to those of a state-granted full property title;

2) traditional possession entitles indigenous people to demand official recognition and registration of property title;

3) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and

4) the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite conditioning the existence of indigenous land restitution rights.

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

[I]n order to guarantee that restrictions to the property rights of the members of the Saramaka people by the issuance of concessions within their territory does not amount to a denial of their survival as a tribal people, the State must abide by the following three safeguards:

• 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.

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 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

Canada’s Comprehensive Claims Process and the British Columbia Treaty Commission (BCTC)

Canada’s Comprehensive Claims Process 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

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.

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

Hul’qumi’num Treaty Group v. Canada in the

Inter-American Human Rights Commission

“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

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.

Large Private Land Owners in Hul’qumi’num Traditional Territory

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.

SUPPLEMENTAL REQUEST FOR PRECAUTIONARY MEASURES and

REQUEST FOR AN ON-SITE VISIT

In the case of THE HUL’QUMI’NUM TREATY GROUP

against CANADA

Case No. P-592-07

June 6, 2008

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5. The threats to the rights of the Hul’qumi’num peoples have dramatically and dangerously increased over the past year since HTG filed its petition with the Commission. Since that time, HTG and its legal representatives have been collecting information and analyzing data on clear-cutting of forest lands and real estate development activity on Hul’qumi’num traditional territory within key areas of the State’s original “E & N Railway grant.”

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

19. The statistics on “Development Permit Applications” received by the CVRD also reveals the growing nature of the threat to Hul’qumi’num traditional lands in this region, with a doubling in the number of development permit applications received by the government between 2006 and 2007! The ten-year trend shows a ten-fold rate of exponential growth in the number of planned development projects that have been authorized by the State on the Hul’qumi’num peoples’ traditional lands: 

1998- 8

1999- 5

2000- 9

2001- 11

2002- 4

2003- 8

2004- 15

2005- 41

2006- 45

2007- 96

Inter-American Commission on Human Rights

REPORT No. 105/09Petition 592-07Admissibility

Hul’qumi’num Treaty Group Canada

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. 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…

41. It bears pointing out that, the jurisprudence of the IACHR has established that a petitioner may be exempt from the requirement of having to exhaust domestic remedies with regard to a complaint, when it is evident from the case file that any action filed regarding that complaint has no reasonable chance of success based on the prevailing jurisprudence of the highest courts of the State. 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.

HTG”s Request for Precautionary Measures

50. …Based on the irreparable and imminent harm from clear-cutting of forest lands and other land development activities outlined in its petition and the acceleration of private and commercial land development activities described in the current request, HTG respectfully requests the Commission to call upon Canada to:

  (a) suspend consideration and/or approval of all official community plans and zoning amendments, subdivision activity, alterations to agricultural lands reserves and development permit applications and any other land or natural resource development activities on lands traditionally used and occupied by

the Hul’qumi’num indigenous peoples within the CVRD and North Cowichan District that are located within the E & N Railway grant area, and ensure that such development activity does not resume or occur, until a mutually agreed upon suitable arrangement is negotiated between the government of Canada and the Hul’qumi’num indigenous communities concerned…