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
“… [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”
Robert A. Williams, Jr.
E. Thomas Sullivan Professor of Law and American Indian Studies
Faculty Co-Chair, University of Arizona Indigenous Peoples Law and Policy Program
Lead Counsel, Hul’qumi’num Treaty Group v. Canada
The European Colonial Era Doctrine of Discovery and
Indigenous Peoples’ Human Rights
The First Charter of Virginia
(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 wellintended Desires…”
Johnson v. McIntosh (1823)*
CHIEF JUSTICE MARSHALL:
“…On the discovery of this immense continent, the
John Marshall
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.”
*A computer search reveals that up to forty-four Canadian cases
have cited Johnson v. M’Intosh.
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….”
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 …]”
Ancient Greek Colonization of the Barbarian World
Western Civilization and the Language of Savagery:
“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
Aristotle’s Theory of Natural Slavery
“…Wherefore the poets say, It is
Aristotle
(384 BC–322 BC)
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…”
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
Calvin’s Case (1608)
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].
Lord Edward Coke
…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 ….”
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 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)
“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
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”
The Modern Indigenous Human Rights Movement
International Labour Organization
(No. 169) on Indigenous and Tribal Peoples
The UN Working Group on Indigenous
Populations
The Proposed American Declaration on
the Rights of Indigenous Peoples (OAS)
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
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.”
The Right to Consultation under the
UN Declaration on the Rights of Indigenous Peoples
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.”
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 Man
Affirms 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
UN Committee on Economic, Social and Cultural Rights
Concluding Observations: Canada (May 22, 2006), at para. 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.”
PETITION
to the
INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS
submitted by
THE HUL’QUMI’NUM TREATY GROUP
against
CANADA
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 Rights
REPORT No. 105/09
Petition 592-07, Admissibility
Hul’qumi’num Treaty Group v. Canada
October 30, 2009
37.
…[T]he 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 Rights
REPORT No. 105/09
Petition 592-07, Admissibility
Hul’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 Rights
REPORT No. 105/09
Petition 592-07, Admissibility
Hul’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 Rights
REPORT No. 105/09
Petition 592-07, Admissibility
Hul’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.