REPORT ON RACIAL DISCRIMINATION AGAINST INDIGENOUS PEOPLES IN CANADA: SUMMARY To: United Nations Committee on the Elimination of Racial Discrimination Re: Canada’s Violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) affecting Aboriginal Peoples in Canada Date: July 30, 2002 SUBMITTERS: Turtle Island Support Group Coalition for a Public Inquiry into Ipperwash Friends of the Lubicon Skwelkwek’welt Protection Centre Sutikalh Camp House of Smayusta, Nuxalk Nation
CONTACT INFORMATION: CERD Report Ad Hoc National Network c/o PO Box 111 Postal Station C Toronto, Ontario Canada, M6J 3M7 [email protected]
This report has been prepared by an ad hoc group of community-based Indigenous Peoples and Canadian human rights organizations that share a common concern about the ongoing racial discrimination experienced by Indigenous Peoples in Canada. It demonstrates that Indigenous Peoples in Canada experience racism in all aspects of their lives, first and foremost as a result of their dispossession from their land and resources. In so doing, this report connects matters already well known to your committee and to other UN treaty bodies—such as the “fourth” world economic, social and cultural realities of Indigenous Peoples within Canada—with the repressive and oppressive treatment of Indigenous persons by state authorities and institutions. Canada’s failure to “recognize and protect the rights of indigenous peoples to own, develop, control, and use their communal lands, territories, and resources” contravenes the Convention’s General Recommendation #23. Overall, the report makes the argument that racial tension and conflict between Indigenous Peoples, governments, and settlers in Canada arise from the state-party’s systemic and institutional discrimination against Indigenous proprietary interests in land and resources. Because recent initiatives by federal and provincial governments such as Bill-C60, An Act to establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims; Bill-C61, the First Nations Governance Act; and British Columbia’s Referendum on Treaty Negotiation Principles do not substantially address (and may even exacerbate) political and economic power imbalances between Indigenous nations and other Canadian governments, they are seen to perpetuate the colonial legacy of earlier legislation. This report also argues that, when Indigenous activists exercise their rights in order to protect the collective interests of their Peoples, they are often subject to individual human rights violations and a restriction of their fundamental freedoms in political, economic, social, cultural, or other fields of public life, as condemned in Article 1 of the Convention. For example, the report documents the use of land mines against the Sundancers at Gustafsen Lake; the fatal shooting of Dudley George by police at Ipperwash Provincial Park; the ramming of Mi’kmaq fishing boats on Miramichi Bay by Department of Fisheries vessels that endangered many lives; and the destruction of property, arrests, and criminal convictions that scores of non-violent Indigenous rights activists at Skwelkwek’welt have endured. The systematic criminalization of Indigenous people exercising their Aboriginal title and other inherent rights is substantiated in the report by the inclusion of lists of arrests at Ipperwash, Esgenoopetitj (Burnt Church), and Skwelkwek’welt.
Recommendations to the Committee focus on the need to implement the land, resource, and treaty rights; dispute resolution; governance restructuring; and public education provisions of the 1996 Royal Commission Report on Aboriginal Peoples. Some of the priorities identified also cite prior recommendations to Canada from UN Treaty Bodies, such as the United Nations Human Rights Committee and the Economic and Social Council, to take action on matters pertaining to Indigenous Peoples. Chief Arthur Manuel, who has been centrally involved with the Skwelkwek’welt dispute, has said “we need the help of the CERD Committee in revealing the truth about Canada.” The ad hoc group of community-based organizations who have submitted this report respectfully ask your committee to address the following questions to Canada: Will Canada, as requested by the UNHRC (April 1999), take “decisive and urgent action… towards the full implementation of the RCAP recommendations on land and resources allocation?” Will Canada acknowledge, as stated by the UNHRC (April 1999), that the extinguishment of Aboriginal Rights is incompatible with Article 1 of the Covenant on Civil and Political Rights, and also incompatible with the Supreme Court of Canada’s Delgamuukw decision, which affirms Aboriginal title? Will Canada engage in meaningful consultation with the Assembly of First Nations and other legitimate traditional and Aboriginal organizations, around their full range of concerns – poverty, education, employment, land rights, and treaty implementation – prior to any further executive action on Bill C-60 or Bill C-61? Will Canada ensure that a full public inquiry into the events at Ipperwash is called before December 31, 2002? Will Canada immediately take steps to address the land and resource rights issues which are at the heart if the Skwelkwek’welt dispute, and drop charges against Secwepemc people exercising their rights? Will Canada immediately return the fishing equipment and boats, central to their means of subsistence, to the Mi’kmaq People of Esgenoopetitj and other communities, and drop charges against Mi’kmaq and other Indigenous people exercising their inherent right to a “moderate livelihood,” as affirmed by the Supreme Court of Canada in the Marshall decision, from the resources within their territories? Will Canada identify the steps being taken to protect the civil and political rights of Indigenous Peoples and individuals who use non-violent protests and action to assert their international human rights as per Article 1 of the Covenants on Civil and Political Rights and on Social, Economic and Cultural Rights? Will Canada revise the amendments to the Indian Act enshrined in Bill C-31, as directed by the UNHRC, to ensure that no further discrimination occurs to children of Indigenous mothers who were disenfranchised as Indigenous people due to earlier discriminatory provisions? Will Canada commit to the development of an Indigenous-led public education program and public school curriculum, as identified by RCAP, to inform the Canadian population about the perspectives and issues of Indigenous Peoples within your borders, regarding their worldviews, histories, land and resource rights, and other contemporary concerns?
NUXALK NATION Coalition for a Public Inquiry into Ipperwash C/o PO Box 111 Postal Station C Toronto, Ontario Canada M6J 3M7 Tel: 416-658-7485 [email protected]
Sutikalh P.O. Box 309, Mount Currie, B.C. V0N 2K0, Canada [email protected]
House of Smayusta PO Box 8. Bella Coola, B.C. Canada V0T 1C0; phone: (250) 799-5376 Email: [email protected]
Skwelkwek’welt Protection Centre c/o P.O. BOX 608 Chase, BC, V0E 1M0 [email protected]
REPORT ON RACIAL DISCRIMINATION AGAINST INDIGENOUS PEOPLES IN CANADA To: United Nations Committee on the Elimination of Racial Discrimination Re: Canada’s Violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) affecting Aboriginal Peoples in Canada Date: July 30, 2002 SUBMITTERS: Turtle Island Support Group Coalition for a Public Inquiry into Ipperwash Friends of the Lubicon Skwelkwek’welt Protection Centre Sutikalh Camp House of Smayusta, Nuxalk Nation
Section One: Setting the Context for this Report Prior to the beginning of European colonization, approximately 55 distinct First Nations or Peoples lived in the land now known as Canada. All but one of these populations still exist today, that one having been completely eliminated in the early 1800’s through a program of deliberate extermination. The remaining populations of Indigenous Peoples have experienced, and continue to experience, racial discrimination since the arrival of Europeans in this region. As your Committee knows, Indigenous leaders, NGO’s and others addressed the racism woven into the day-to-day lives of Indigenous Peoples in Canada at the recent World Conference Against Racism. The submitters and authors of this report concur with the Concluding Observation of the United Nations Human Rights Committee (April 1999) that the situation of Indigenous Peoples is Canada’s most pressing human rights problem. We are Indigenous groups and non-governmental human rights organizations; among the latter, most of our members are concerned newcomer and settler Canadians. Our racial and geographical diversity demonstrate that the issues we identify are of concern to people across Canada. Our hope is that this report illustrates our ‘lived experience’ that the problems identified herein are not isolated or ‘special’ cases but occur across the territory of the state-party. Our effort here is to show not just specific, and in some cases horrendous, abuses of Indigenous Peoples human rights, but to place these within the overall context of state policy that does not respect the provisions of the International Convention to End All Forms of Racial Discrimination (ICERD). Canada has, in the past and in its 13th and 14th periodic reports and related update currently before your Committee, failed to fully report on Indigenous issues in a comprehensive and unbiased way. Some pertinent and troubling matters are simply not addressed in Canada’s reports. In other instances, Canada fails to identify the root causes and full scope of racial discrimination against Indigenous Peoples, often enshrined in federal policy and the practices of government officials and law enforcement personnel. We demonstrate that Indigenous Peoples across Canada experience personal, institutional and systemic bias, discrimination and racism, arising from their ethno-cultural identities. The human rights violations experienced by members of these population groups become more severe when individuals within these communities take political action to assert their land, treaty-based, social, cultural and economic rights. Among the root causes of this discrimination are neo-colonial policies and practices of the state-party, its institutions, and authorities as well as the curriculum offered in Canadian schools, which inculcates ordinary Canadians with the doctrine of terra nullius through the exclusion, or at best minimization, of Aboriginal cultures and worldviews. Crucial differences in perspective on and interpretation of treaties and policies are very seldom presented in Canadian curricula, the media, or official government discourse.
Paragraph 6 of ICERD General Recommendation XXIII specifically “calls upon States parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention.” The authors of this report consider ICERD Recommendation XXIII a valuable mechanism for uncovering the root causes of racial discrimination against Indigenous Peoples. We believe that hiding, denying, or marginalizing Canada’s continuing discriminatory and racially-based repression and oppression of Indigenous Peoples impacts the exercise of human rights for all persons within Canada. This argument has also been presented in the report submitted to your Committee by the National Anti- Racism Coalition. Yet in Canada’s report and update currently before your committee, Canada has chosen to ignore Recommendation XXIII. Other official Canadian tactics – obscuring information, submitting long overdue reports that cannot hope to present an accurate picture of current issues, and failing to comply with the spirit of international human rights law to disclose and dialogue – imperil human rights around the world because Canada is still regarded as a human rights leader. Canada’s reluctance to report openly and honestly about the situation of Indigenous Peoples within its national borders demonstrates the frailty, one could argue fallacy, of Canada’s role as a respected advocate for human rights within the international community of nations. Periodic reports to the United Nations bodies that monitor member-state compliance with the international human rights treaties, such as the ICERD, are specifically intended to initiate national and, if necessary, international dialogue on how to meaningfully address the damages wrought by policies and programs of racial discrimination, racism, and cultural repression and genocide. Beginning more than two years ago, requests for information about the status of ICERD reports were made to the federal department responsible for compiling these reports, Canadian Heritage, by representatives of the Coalition for a Public Inquiry into Ipperwash, one of the submitting organizations. Neither that group nor any other contributor to this report was advised by Canada that the report before you was available for review or scheduled to be heard at this session. Canada’s failure to use the domestic dialogical and consensus-building potential of this reporting process was also cited in the UNHRC’s April 1999 Concluding Observations. This is just one of many, many recommendations and observations made to Canada over the past decade during periodic reviews by United Nations treaty bodies. Some are cited herein, but space and resources have forced us to omit the vast majority of relevant Concluding Observations pertaining to the other five major International Covenants/Conventions. Again, as observed by the UNHRC, Canada has no internal monitoring mechanism, so these comments are usually disregarded. As the members of your committee review our report, you will find it to be a voluntary, community-based, non-governmental effort to bridge the huge gap between Canada’s official report and what is actually happening to Indigenous Peoples in Indigenous and Canadian communities across this land. This is not an exhaustive demonstration of the human rights violations, discrimination, and racism experienced in Canada by Indigenous Peoples, but we hope it will provide sufficient information to enable your Committee to undertake its mandate more effectively.
Section 2: General Recommendation XXIII on Indigenous Peoples (ICERD Committee; Fifty-first session, 18/08/97) Para. 1: Human Rights of Indigenous Peoples Through this General Recommendation #23 to Article 9 of the ICERD, your Committee signalled to all state-parties that “the situation of indigenous peoples” is a “a matter of close attention and concern,” and that in your view “discrimination against indigenous peoples falls under the scope of the Convention.” Despite the fact that Canada’s report and update were filed four and five years, respectively, after the adoption of Gen. Rec. #23, the state-party has chosen not to address this recommendation’s spirit and intent directly. In our report, many instances of human rights violations against Indigenous Peoples are raised that are omitted or obscured in Canada’s report and update. Para. 3: Loss of Land and Resources As your Committee will read in this report, the loss of land and resources to “colonists, descendants of colonists, and commercial companies” as well as the neo-colonial policies of assimilation and cultural eradication are the ongoing experience of Indigenous Peoples in Canada. Coupled with the social and economic marginalization that affects all aspects of their communities (See “Concluding Observations,” ECOSOC, Dec. 1998, and UNHRC, April, 1999), Indigenous Peoples exist in a “fourth,” undeveloped world within Canada. Their lives are severely compromised with regard to their ability to enjoy the rights guaranteed to them in the ICERD and the other five principal UN human rights treaties to which Canada is signatory. The socio-economic stresses of living with this ongoing repression have placed at risk the preservation of some of their cultures and their historical identities. This situation is compounded by the biased and discriminatory curriculum provided by Canadian schools about Indigenous Peoples. In Indigenous and human rights NGO circles, it is widely believed that Canada’s reluctance to be forthcoming on these issues is a further demonstration of its determination to continue neo-colonial policies, as outlined in Section 3 of this report. Para.4 (a): Respect for Indigenous Peoples The requirement to “recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation” is not meaningfully addressed in Canada. In a recent national survey of post-secondary students, only 17% of the 519 respondents from across Canada could provide a “valid” answer (“valid” included responses such as “not much”), when asked to identify how Aboriginal Peoples have contributed to Canada (Coalition for the Advancement of Aboriginal Studies, “Learning about Walking in Beauty,” 2002). Comments re: education initiatives required to affect this goal are included in section 4 of this report.
Para. 4 (b): Racial Discrimination This report demonstrates that Indigenous Peoples in Canada experience racial discrimination in the exercise of their inherent Indigenous rights and when they interact with Canadians. Para. 4 (c): Economic and Social Development Compatible with Culture Indigenous Peoples in Canada continue to be dispossessed of their land and resources. Canada’s unwillingness to address the meaningful proposals in the RCAP Report to improve this situation (See Section 4), is proof that these rights are not upheld for Indigenous Peoples within the state-party’s borders. Para. 4 (d): Consultation with Indigenous Peoples Gen. Rec. #23 asks state-parties to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.” The First Nations Governance Act (Bill C-61) of the state-party, discussed in Canada’s update, is in direct contravention to this statement. The Assembly of First Nations (AFN), which speaks for Canada’s 633 First Nations, has repeatedly complained about the lack of consultation by the government in regards to these proposed amendments to the Indian Act, federal legislation which governs all aspects of their Peoples’ everyday lives. Canada’s response has been to discredit the AFN. In a related move, federal financial transfers to the AFN were cut in half. Para. 4 (e): Revitalization of Culture and Language As one of the isolated areas of the RCAP Report that Canada has acted on, some initiatives have been taken around strengthening Indigenous languages. However, the disappearance of the languages to begin with is directly attributable to Canada’s policies of earlier periods. Canada’s long-standing policy of removing Indigenous children from their families and placing them in Residential Schools where they experienced many kinds of human rights violations in the effort to ‘civilize’ them had a profound impact on Indigenous languages. Use of Indigenous languages was punished and teachers insisted that English and/or French become the only spoken language of these children. Thousands of Indigenous individuals have launched lawsuits against the government of Canada for their role in the operation of these Schools, which were managed by various Christian churches (who are also being sued for damages). Despite Canada’s powerful incentive to be seen as ‘doing something’ arising from these court cases, much remains to be done. Para. 5: Protection of Land and Resource Rights Section 3 of this report critiques land and resource claim or dispute resolution processes. This analysis clarifies that Canada does not uphold the spirit and intent of this declaration, that Indigenous Peoples have the right “to own, develop, control and use their communal lands, territories and resources.” Nor do they experience “just, fair and prompt” resolution of their land and resource issues.
A critical case in point is the Lubicon Lake Indian Nation, whose Traditional Territory situated in north-central Alberta, Canada. The Lubicon Nation has never signed a Treaty with Canada and has never ceded its traditional territory in any legally or historicallyrecognized way. In 1939, Canada promised the Lubicon Nation reserve lands, yet 63 years later no settlement of outstanding Lubicon land rights has been negotiated. In 1990, the UNHRC ruled that Canada was in violation of article 27 of the International Covenant on Civil and Political Rights, saying that “historical inequities and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 [of the International Covenant on Civil and Political Rights] so long as they continue" [Lubicon Lake Band v. Canada, Communication No. 167/1984 (26 March 1990), U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990)]. The Committee also found that Canada "proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant" i.e. by a negotiated settlement. However, despite the passage of twelve years since the UNHRC decision and eight years since your Committee’s recommendation to “speed up negotiations on aboriginal land claims,” there is still no negotiated resolution of the Lubicon Nation land rights dispute. Negotiations to resolve the land rights of the Lubicon Lake Indian Nation took place intermittently during the reporting period and are currently proceeding at a snail’s pace. While Canada fails to ensure a timely resolution of land rights negotiations with the Lubicon Nation, the Alberta provincial government continues to license and benefit financially from approximately $500 million a year of ongoing oil and gas extraction from Lubicon Traditional Territory. The federal government, for its part, has provided subsidies to Native forestry operations that, in 2001, began clear-cutting fo rests in Lubicon Traditional Territory without the informed consent of the Lubicon Nation. Long delays in resolution of the Lubicon Nation’s land rights and the continued licensing and subsidizing of resource extraction on Lubicon traditional territory has led to further erosion of Lubicon rights to own, develop, control and use their communal lands, territories and resources, and has denied the Lubicon Nation the conditions allowing for a sustainable economic and social development compatible with their cultural characteristics (ICERD General Recommendation XXIII, 4(c)). Para. 6: Reporting on the Situation of Indigenous Peoples As mentioned above (see Paras. 1 and 3), and as substantiated by our report, Canada does not fully comply with this requirement.
Section Three: Violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Preamble, Para. 4: Colonialism The problems facing Indigenous Peoples in Canada arise from colonialism, beginning with the original early European doctrine of terra nullius, and continuing through the later broadened definition. The Final Report of the Royal Commission on Aboriginal Peoples (RCAP) describes terra nullius as: …empty, essentially barren and uninhabited land. Under norms of international law at the time of contact, the discovery of such land gave the discovering nation immediate sovereignty and all rights and title to it. Over the course of time, however, the concept of terra nullius was extended by European lawyers and philosophers to include lands that were not in the possession of ‘civilized’ peoples or not being put to a proper ‘civilized’ use according to European definitions of this term. (RCAP Vol. 1:43)
The loss of lands and resources during the colonial era as a result of the doctrine of terra nullius, and the repeated failure of the Canadian state to remedy this loss, underlies both the large number of ongoing, often violent conflicts between Indigenous and Settler communities across Canada and the racial discrimination Indigenous individuals and communities experience in their day-to-day lives. Canada’s report (Article 2, par. 18) refers to Canada’s commitment “to building a new partnership with Aboriginal peoples” and identifies “the resolution of outstanding land claims” as a “priority.” Both this and subsequent paragraphs (19 and 20) cite as positive examples of Canada’s commitment the Comprehensive Claims Policy (CCP), the British Columbia Treaty Commission (BCTC), and the Specific Claims Policy (SCP). In fact, all of these policies continue the state-party’s colonial legacy: they fail to recognize the Aboriginal Inherent Rights enshrined in Section 35 of the Canadian Charter of Rights and Freedoms (1982) and upheld in the Delgamuukw decision (1997), and are racially discriminatory as defined by Article 1:1 of the CERD. Canada’s updated submission refers to the Delgamuukw decision. However, it emphasizes the necessity of proving title within the Canadian court system, rather than the principle of title itself and its importance as an Aboriginal inherent right that may simply be exercised. Indigenous people, unlike corporations who lobby the government for extinguishment of Aboriginal title and rights in order to further their commercial interests, cannot afford such costly litigation. Canada’s constitutionally enshrined fiduciary obligation (arising from the Proclamation of 1763) requires the Crown to ensure not only equal but particular protection for “Indians and lands reserved for Indians.” The CPP and the BCTP and SCP policies that
operate within its policy framework seek to extinguish Aboriginal Title (as noted by the UNHRC, April, 1999) and, hence, do not afford the protection for the proprietary interests of Indigenous People that they do for the proprietary interests of Canadian Settlers and the Crown. As such, these policies have the “effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms” in the economic life of Indigenous Peoples. Particularly in the Canadian province of British Columbia, a number of First Nations refuse to negotiate under the discriminatory terms of the CCP. Canada’s colonial legacy also continues in the Indian Act, and the latest initiative by the state-party to reform this Act, the First Nations Governance Act (Bill C-61). A legal opinion prepared for the Union of BC Indian Chiefs by Dave Nahwegahbow found that: The proposed legislation does not purport to recognize, or be based upon, the inherent right of self-government. It is based on a purely delegated model. It operates from the starting assumption that the Indian Act is the only source of governance structures and authorities for bands. (July 16th , 2002)
The inherent right to self- government is already enshrined in Section 35 of the Constitution Act (1982), as acknowledged in Canada’s report (par. 24) and recently upheld by the British Columbia Supreme Court in the Campbell decision. This right allows First Nations to make laws on their own initiative with regard to internal matters, such as those covered in Bill C-61, without the need for any approval or authorization by the federal government. The First Nations Governance Act would establish a system of delegated authority that would maintain the exclusive jurisdiction of the federal government over lands, resources, and people, leaving “Indian Reserves” with even less jurisdiction and funding than municipalities. The Assembly of First Nations and other Indigenous Peoples’ organizations are presently opposing Bill C-61. In no way do they view this Bill as “providing First Nations with tools missing from the Indian Act that lead to greater self- reliance, economic development and a better quality of life for First Nations,” as argued by the state-party in their updated submission. In British Columbia, where treaty-making has only begun in recent decades, the ongoing legacy of colonialism and the doctrine of terra nullius is most visible. In April of 2002, the newly elected provincial government asked voters to answer “yes” or “no” to eight principles that would guide treaty negotiations. Principles proposed in this government referendum ranged from “Private property should not be expropriated for treaty settlements” to “Aboriginal self- government should have the characteristics of local government, with powers delegated from Canada and British Columbia” (See Appendix). Indigenous Peoples viewed the referendum as racist and called for a boycott, as did many Canadian NGOs, including both the United and the Anglican churches of Canada. Critics of the referendum argued that Aboriginal rights are protected by both Canadian and international law and cannot be subjected to a majority vote. Only 36% of eligible BC voters responded, but 80% of these voted “yes” to the proposed principles. The BC government has since stated that these results give them the mandate to negotiate treaties according to these racially discriminatory principles, which are upheld in neither Canadian constitutional nor international law. Canada’s updated submission does not
acknowledge the controversy surrounding the referendum, and seems to suggest that these principles will indeed be recognized in settling treaties in British Columbia. Preamble, Para. 6: Doctrine of Superiority Historically, the economic, political, and social policies that constitute colonialism arose out of imperialism, with the power of the state used to legitimate the domination of one culture over another. For Europeans, the ideology of imperialism meant that they had a moral obligation to “civilize” other peoples, who were viewed as less than Europeans. While many of the provisions of the Indian Act and other policies, such as Residential Schools, that arose from this doctrine of superiority have been rescinded, current Canadian policy directions reflect the same ideology. Bill C-60, the most recent addition to the Specific Claims Policy, and Bill C-61 as well as the British Columbia Referendum process signal that Canadian Settler governments intend to keep exclusive jurisdiction over First Nations and Indigenous Peoples. Only those First Nations who accept this exclusive jurisdiction are deemed eligible for many of the government programs and services outlined in Canada’s report and update. As will be demonstrated elsewhere in this section, when First Nations and Indigenous Peoples assert their right to selfdetermination and seek to develop their own parallel jurisdictions, federal and provincial governments routinely use executive force to maintain jurisdiction. Preamble, Para. 7: Racial Discrimination as Obstacle to Friendly and Peaceful Relations between Nations and Peoples The failure of the state-party to address the legacies of colonialism and imperialism and the legitimate human rights complaints of Indigenous Peoples to which they have led have become an “obstacle to friendly and peaceful relations…disturbing peace and security among peoples and the harmony of persons living side by side” within Canada. Indigenous Peoples at first extended hands of friendship to European settlers, based on the Indigenous worldview that all people are related. Although these principles were applied when the original Peace and Friendship Treaties were signed, most of these Treaties have been broken by Canada. Further, discriminatory policies have fuelled the growth of both anti-Indigenous rights groups across Canada and distrust and bitterness among Indigenous Peoples towards Canada and many Canadians. We contend that the racial tension and conflict between Indigenous people, governments, and settlers in Canada arise from a systemic violation of Indigenous proprietary interests and inherent rights, as follows. Article 2.1a: Racial Discrimination by Public Authorities or Institutions Many incidents across Canada— from Miramichi Bay on the East Coast, to Ipperwash Provincial Park in central Canada, to the interior of British Columbia— show that public authorities and public institutions routinely engage in acts of racial discrimination towards Indigenous people and their communities, particularly those asserting their inherent rights. To enforce policies (often those which discriminate against Indigenous
land, treaty and inherent rights as argued above), federal and provincial governments use public authorities and institutions such as • the Department of Fisheries and Oceans (DFO) and its enforcement units; • provincial police, Royal Canadian Mounted Police and, in some cases, even the armed forces; • Land and Water British Columbia, formerly BCAL: British Columbia Assets and Land Corporation; • the Department of Indian and Northern Affairs (DIAND) Indigenous people who exercise their inherent rights and protect the collective interests of their people in response to enforcement of state-party policy by such public authorities and institutions are often criminalized. Since the 1999 Marshall Decision of Canada’s Supreme Court affirmed the treaty right of Mi’kmaq people to a commercial fishery, members of the Esgenoopetitj (Burnt Church) and other east coast First Nations have tried to exercise their right to fish under their own Fisheries Act. As a result, Esgenoopetitj First Nation (EFN) traps and boats have repeatedly been confiscated by the DFO, often in raids accompanied by an excessive use of force. Community members and Human Rights Observers from the Aboriginal Rights Coalition and Christian Peacemaker Teams have documented numerous cases of EFN boats swamped, rammed, and run over by DFO and RCMP boats. Occupants of capsized EFN boats were subjected to tear gas and pepper spray; others were beaten in the water. More than 60 EFN members, many of them Rangers sworn in by the Band Council as volunteer EFN Fisheries Officers with a duty to protect EFN fishers and traps, have been arrested and charged with offences ranging from “fishing without tags approved by the Minister of Fisheries and Oceans” to “obstructing a fisheries officer” to “assaulting a fisheries officer” (see Appendix). Similarly, on the West Coast, in Cheam, there have been more than 150 St:olo people charged by the DFO for exercising their inherent right to fish salmon in the Fraser River (See Appendix). A number of those arrested have complained of mistreatment while in custody; non-Native observer Tracy Sinclair reported that she received better treatment while in custody than the Mi’kmaq people arrested with her. The group “Natives Against Discrimination” has filed a complaint with the Canadian Human Rights Commission for discrimination, harassment, and violation of rights at Esgenoopetitj, and in similar incidents at Big Cove. Such incidents and the resulting complaints brought against public officials by Indigenous people provide contexts for Canada’s updated submission, which suggests “issues related to the Marshall decision” are being appropriately addressed. (For a detailed account of Canada’s abuse of human rights at Esgenoopetitj, see Christian Peacemaker Teams, “Gunboat Diplomacy,” 2001, which our report summarizes.) In Ontario on September 6, 1995, more than 250 heavily armed provincial police confronted a group of less than 30 unarmed Indigenous people and their supporters who were occupying Ipperwash Provincial Park to protest violations of their land, treaty, and inherent rights. As a result, one Indigenous ma n, Dudley George, was fatally shot, 2 other protestors were wounded, and another Indigenous man was brutally beaten by at least 6 officers who have never been identified. Three of George’s immediate family members and one youth were arrested while seeking medical aid and held without
charges; 28 others were charged, though in most cases the charges were ultimately dropped (See Appendix). Police use of excessive force in this incident is believed to have been initiated by the highest elected officials in Ontario, and government records obtained through “Freedom of Information” legislation show that the federal Department of National Defence (DND) was working closely with the provincial police during this time. While DND correspondence with the OPP linked the Ipperwash protest to other protests by Indigenous groups where weapons were a factor, solid evidence has emerged that a paid informer, who infiltrated the community prior to the protest, had advised federal and provincial authorities that the protestors were committed to non-violence. In the 1997 Deane decision, the courts confirmed that the protestors were unarmed. Acting Sergeant Kenneth Deane was convicted of criminal negligence causing death; Judge Hugh Fraser ruled that police witnesses had lied to cover up the fact that Deane had knowingly shot an unarmed man. Deane only received a minimal sentence, however: probation and 180 hours of community service. In his judgement on sentencing, Justice Fraser made several references to the false information spread by official sources and the media that Indigenous protestors had been heavily armed (Regina vs. Deane, July 3, 1997, par. 11). Despite these facts, Canada has never corrected its original statement to the United Nations Special Rapporteur on Extrajudical, Summary, or Arbitrary Executions, in which the state-party asserted that the Indigenous people fired first on police at Ipperwash (E/CN.4/1996/4, par. 99). Nor has Canada acted on the 1999 UNHCR recommendation that the federal government “establish a public inquiry into all aspects of this matter, including the role and responsibility of public officials.” By contrast, an inquiry was called in 1996 by the Ontario government a week after a Caucasian public servant was knocked unconscious by police officers during a strike-related non-violent protest; this fact suggests that the use of excessive force by state authorities against non-Indigenous people is remedied in Canada, while the use of excessive force against Indigenous people, even when it results in death, is not. Remarkably, neither Canada’s report nor update refers to events at Ipperwash, in spite of the fact that they fall within the time period of the report and have been a concern of UN Committees in the past. Since 1998, the Secwepemc people in the interior of British Columbia have been asserting Aboriginal title to their traditional territories around Skwelkwek’welt on the basis of the Delgamuukw decision (1997), in opposition to the expansion of the Sun Peaks Ski Resort to 6 times its present size. Land and Water B.C. (formerly BCAL), a Crown Corporation, has repeatedly granted leases to accommodate Sun Peaks expansion plans, acting on the basis of the outdated Land Act, which does not recognize Aboriginal Title, and without consulting Indigenous people. The Secwepemc people have responded by setting up the Skwelkwek’welt Protection Centre, including year round camps in the disputed territories. Land and Water B.C. subsequently extended Sun Peaks lease to the Crown lands on which the camps were located, forcing Indigenous people out by injunction. Thirty-eight arrests of Indigenous people from the camps took place from June to December of 2001, with charges ranging from “criminal contempt” to “mischief” to “intimidation and obstruction of a peace officer.” In a further effort to protest the denial of their Indigenous rights, members of the Native Youth Movement occupied Land
and Water B.C. corporate offices, under the direction of Secwepemc elders; 16 people were charged with contempt, with a number of convictions, including prison sentences. Individual Land and Water B.C. employees have also discriminated against Secwepemc people. In the summer of 2001, Janice Billy, Spokesperson for the Skwelkwek’welt Protection Centre, attempted to get public information on planned developments in Secwepemc traditional territories. She was at first stopped from entering the building by a security guard and, later, deemed a “security hazard.” A Caucasian supporter had no difficulty getting into the building, and was able to intervene to gain access for Billy. Most of Billy’s questions were not answered, however, and the information she was promised was never received. Article 2:1(b): Racial Discrimination by Private Persons and Organizations Indigenous communities across Canada exercising their Aboriginal title and other inherent rights have experienced racial discrimination by private persons and organizations as supported by state-party policy and practices. On various occasions, local fishermen have attacked Mi’kmaq while RCMP and DFO officers, often with close family ties to the fishermen, stood by, claiming they could not guarantee the safety of Indigenous people. Sun Peaks employees bulldozed a cord-wood house together with sacred sweat lodges and the Skwelkwek’welt Protection Centre under the terms of an injunction from the B.C. Attorney General. Elsewhere, in the cases of Lubicon Lake in Alberta, Barriere Lake in Quebec, Sutikalh and the Nuxalk Nation in British Columbia, loggers and members of local non-Indigenous communities who rely heavily on the logging industry have threatened and harassed Indigenous people who were working to ensure that industrial logging practices do not impact on traditional uses of the land. These actions and the incidents of use of excessive force by public authorities and criminalization of Indigenous people described in our discussion of Article 2:1(a) above are examples of state-party protection of commercial interests over Indigenous interests. This business as usual approach has been rejected in the recent Haida decision (2002), where the B.C. Court of Appeal found that the government and third parties, such as corporations, are under an obligation to consult with Indigenous Peoples and meaningfully accommodate Aboriginal title. Article 2:1(c): Racially Discriminatory Policies and Laws Canada’s policies regarding Indigenous people and rights are crafted to maintain exclusive federal and provincial jurisdiction over people, land, and resources, denying inherent rights (and, in some cases, requiring extinguishment); this is discussed above under “Preamble, Par. 4: Colonialism” and “Preamble, Par. 6: Doctrine of Superiority.” As noted, Section 35 of the Canadian Constitution Act (1982) enshrines Aboriginal land, treaty, and inherent rights. However, most Indigenous policy and law as well as many other laws, including those governing fisheries and forests relevant to so many of the conflicts detailed in this report, have not been amended, rescinded, or nullified to comply with Section 35 or with international human rights law. As a result, Indigenous people are unable to access their land and resources and thus establish Indigenous economies.
Instead, they remain the poorest people living in Canada, dependent on government programs and services. Defending themselves in court against charges arising from land and resource rights disputes further increases their poverty; in Cheam alone, the Band has to deal with more than $1 million dollars yearly in legal fees. In Esgenoopetitj, while the courts have recognized the possibility of an Aboriginal rights defence for some defendants, legal aid has been refused due to the prohibitive cost of such a defence. Canada promotes its system of programs and services for Indigenous Peoples internationally and even in the present report and update. These monies are only available, however, to people and organizations that accept the exclusive jurisdiction of the federal government providing the funds. Band Councils are set up under the Indian Act as bodies to administer programs and services according to conditions prescribed by the federal government. If they give political support to band members exercising Aboriginal title and rights or are seen to be overly critical of government processes, the Department of Indian and Northern Affairs (DIAND) has gone as far as cutting all their program monies, so that they cannot even pay out social assistance to their band members. In the case of Lubicon Lake, DIAND has cut and threatened to cut services and set up a second band council. In the case of Nuxalk opposition to logging in the Valley of Ista, in the Great Bear Rain Forest, 6 band councillors opposed the forestry operations and 5 endorsed them, but DIAND backed the minority decision endorsing the logging plans. DIAND and the minority band council even laid charges against Nuxalks exercising their Aboriginal Title and rights. Often DIAND policy and practices exacerbate, or even promote, divisions between Indigeno us people prioritizing short-term program monies and those seeking to protect long-term Aboriginal title interests. Finally, many Indigenous people in Canada are considered “non-Status” under the Indian Act, and are, therefore, denied access to the programs and services, as well as the Treaty rights and limited cultural recognition afforded to “Status Indians” by the federal government. Many of these people have no “Status,” because their ancestors lost it during the most repressive era of the Indian Act. In the mid-1980’s, Canada took some action to correct this violation, after being directed to do so by the UNHRC in the Lovelace case. However, the redress only extends back two generations and, hence, the disenfranchisement continues. In April, 1999, the UNHRC asked Canada to further revise this provision; Canada has not done so. Regardless, “non-Status” Indigenous people are now a fact of life in Canada and often experience the worst kinds of discrimination— belonging neither to one community nor the other, and lacking the programs and services that provide some support to “Status” individuals. Articles 2:1(d) and (e): Intensifying Racial Discrimination and Strengthening Racial Division In many cases, both the responses of public officials to conflicts between Indigenous and Settler communities and interests, and policies and practices of state-party institutions have intensified, rather than brought to an end, racial discrimination towards Indigenous people by persons, groups, and organizations, and strengthened racial division. During the Ipperwash crisis, local MPP Marcel Beaubien was present at the OPP command post.
In faxes sent to the Premier of Ontario’s office, he referred to the Native protestors as “thugs,” comments that were later reported in the media (Paul Morden, “Dealing with Thugs,” Sarnia Observer, Dec., 1996). Beaubien claimed that he was “doing [his] job for [his] constituents,” the overwhelming majority of whom are non-Indigenous. Subsequently, John Zarudny, co-counsel for the Provinc ial Crown Defendants in the wrongful death case brought by Dudley George’s brother, Sam, and other siblings against government officials, stated that “governments don’t bargain with terrorists and I’m not here to bargain with the plaintiffs today.” Sam George believes, though the co-counsel denies it, that Mr. Zarudny was referring to him, his family, and his dead brother as terrorists, and has filed an Affidavit to that effect (Ontario Superior Court of Justice #96CU-99569). Similarly, a letter from Robert Langlands, Special Advisor for British Columbia to the Minister of Indian and Northern Affairs, Robert Nault, addressed to international, national, and local supporters who had asked the federal government to negotiate with the Secwepemc people in the Skwelkwek’welt land dispute referred to Skwelkwek’welt Protection Centre members as “radicals” and characterized the police response as “lenient.” Further, British Columbia MP Betty Hinton has called Chief Arthur Manuel, a key supporter of the Protection Centre, an “economic terrorist.” In British Columbia, a white supremacy group used the provincial government referendum on principles of treaty negotiation to recruit new members. “ White Pride” referred to the referendum as “enabling the most fundamental symbolic expression of White unity since racial pride went out of style almost 40 years ago” (www.bcwhitepride.com/referendum.htm). Chief Stewart Phillip, President of the Union of British Columbia Indian Chiefs (UBCIC), expressed his outrage, stating: “This hate mongering dramatically proves our conjecture that the referendum is racist. The referendum is playing on the uninformed majority about the constitutionally enshrined and judicially recognized Aboriginal title and rights that exist in this province” (UBCIC press release, April 17th , 2002). That Canada chooses to refer to the referendum and its results in an updated submission to your Committee without reference to the strong position taken by Indigenous and other organizations in British Columbia against this government initiative is a matter of deep concern to those submitting this report. Article 2:2: Affirmative Action Indigenous people participating in Indigenous-controlled education programs do not receive the same core or special needs funding support as students in non-Indigenous institutions. The state-party’s failure to address the need for public school curriculum content from an Indigenous perspective in education policy is also relevant here. Article 3: Apartheid That the South African Apartheid system was based in part on the Canadian system of Indian Reservations is well known. The Indian Reservation system keeps Indigenous people segregated from both the mainstream society and economy as well as from their
traditional territories that are the basis of their own economies. For example, when the Supreme Court of Canada ruled that Aboriginal people have the right to gain a moderate livelihood from their traditional economies in the Marshall decision, the Esgenoopetitj First Nation (EFN) developed their own Fisheries Plan for sustainable lobster management in Miramichi Bay. The numbers of lobster to be harvested in the EFN plan represented less than 2% of the total harvested annually by commercial fishers. The DFO refused to reduce the industrial harvest, and claimed that the addition of the harvest proposed in the EFN plan would threaten the resource, which in reality has been depleted by industrial activities. We contend that placing an Indigenous community at the bottom of the list for access to the resource constitutes economic racism. Article 4(a): Acts of Racial Hatred In the incidents previously described at Esgenoopetitj, Ipperwash, and Skwelkwek’welt, as well as in incidents elsewhere, local, non-Indigenous residents and others frequently respond to Indigenous people exercising their rights with racial comments and acts of violence. For example, at Skwelkwek’welt on February 17, 2002, more than a dozen snowmobilers sped around a Secwepemc woman and her two-year-old son, eventually running over and seriously injuring the family dog. Threats included “this is not the last you will see of me because I feel like killing some Indians.” In reporting the incident, the woman concluded: “This was an act of total hatred. He took his hate towards us being Indians out on our defenceless puppy.” As noted above under Article 2:1(a), nonIndigenous perpetrators are often not prosecuted for these acts. Article 4(b): Organizations and Activities Promoting Racial Hatred In both Esgenoopetitj and Skwelkwek’welt, members of organized groups have repeatedly fired shots at Indigenous people. In Esgenoopetitj, some perpetrators have been identified and charged, but in Skwelkwek’welt police refused to initiate an investigation or set up a surveillance team to secure the safety of the people under threat of violence. The activities of the white supremacy organization, “White Pride,” during the B.C. Referendum have already been noted under Articles 2:1(d) and (e) above; during the Ipperwash crisis, a similar group, known as ON FIRE, was active in the Sarnia area. Other organizations engaged in anti-Indigenous rights campaigns exist across Canada. Some—such as the Chatham-Kent Community Network in southwestern Ontario, who are opposing the Caldwell First Nations land settlement agreement- in-principle with the federal government—focus on local conflicts. Others have a national focus. Article 4(c): Public Authorities and Institutions Promoting Racial Hatred Discriminatory comments by public authorities have been documented under Articles 2:1(d) and (e) above. Because they intensify racial discrimination and strengthen racial division, a climate is created in which non-Indigenous people are more likely to express racist opinions and even use violence. Following the publication of such comments, hate
mail is often received by Indigenous people and organizations, and hate propaganda distributed. (See photos and letter in Append ix) Following the Ipperwash crisis, members of the Ontario Provincial Police actively engaged in promoting racial hatred. They designed, purchased, and distributed racist “Team Ipperwash” memorabilia commemorating the assault. A symbol sacred to Indigenous Peoples, the Eagle Feather, was featured prominently on coffee mugs and tshirts, with the feather on its side presumably to demonstrate their success in “downing” one of the protestors. Senior police officers later apologized for this act, but no charges were laid nor restitution made to affected community members. In January 2000, the Canadian public became aware that Indigenous men in Saskatoon, Saskatachewan, were routinely driven to the city limits by the police and left there. A number of suspic ious deaths have occurred over the past decade or more as a result of this racially-discriminatory practice, which is so common that it has a name in Saskatoon’s Indigenous community: “Starlighting.” An Indigenous man, Daryl Knight, survived this experienc e, and reported it to the media and relevant authorities. Following an investigation, and what many Indigenous people believe was a cosmetic change in personnel within the police administration, some officers were convicted of “unlawful confinement.” There has been no resolution for the families of any of those who have died in similar circumstances. Article 5(a): Equal Treatment before Tribunals and Other Organs Administering Justice As noted under Article 2:1(a) and Article 4(c) above, the Indigenous rights activists at Esgenoopetitj, Ipperwash, and Skwelkwek’welt have not enjoyed these rights. Nor have Indigenous people elsewhere in Canada. Many Indigenous people exercising their Aboriginal title and other inherent rights believe, not only that the Canadian justice system is incapable of ruling on their rights as defined by their own Indigenous laws, but also that the criminal justice system is used to discriminate against them. Routine charges for exercise of Aboriginal Title and rights include: • Obstruction – if they refuse to cease the activity • Mischief – when Aboriginal people respond emotionally when told to leave their own land • Uttering threat – when they tell the enforcement personnel to leave their land • Assault – when they pull away from enforcement personnel and • Resisting Arrest – if they refuse to move as directed by the enforcement personnel. In most cases, the Crown has the discretion to either press for an indictable offence or a summary conviction. The result is usually a criminal conviction that enters into the criminal record. In many cases, interim relief measures, such as injunctions (which do not have to consider Aboriginal Title issues in depth), are used to stop Aboriginal people from exercising their Aboriginal Title and rights. One of the tests employed by the Courts in granting injunctions is the balance of convenience between Aboriginal and corporate
interests. Since Indigenous interests are often considered as having no economic value, corporate interests usually prevail. The government of British Columbia has even sought public support for the discriminatory practices of Crown corporations such as Land and Water B.C., which routinely grants leases to disputed lands. In their recent referendum, they asked voters if they agreed with the statement: “The terms and conditions of leases and licences should be respected; fair compensation for unavoidable disruption of commercial interests should be ensured.” If Indigenous people refuse to obey injunctions, they may be charged with criminal contempt of court, turning a case dealing with a land issue into a criminal proceeding, in which judges routinely prohibit exercise of Aboriginal title as a defence. Indigenous people are arrested and only released (while awaiting their trial) if they sign release forms that stipulate conditions usually dictated by commercial interests, including those of ski resorts in Skwelkwek’welt and logging companies in the Great Bear Rain Forest. Not returning to the disputed area and not engaging in any kind of protest are frequently required of those arrested. Article 5(b): Security of Person and Protection from Bodily Harm Indigenous people exercising Aboriginal title and other inherent rights are constantly harassed and their personal liberty and security of person are under constant threat. Many of the Aboriginal nations submitting and consulted in the preparation of this report note that Canadian law enforcement personnel usually start from the assumption that existing provincial and federal laws sufficiently settle land and resource use questions. They do not acknowledge the constitutional gap between Supreme Court of Canada decisions that recognize Aboriginal title and rights and administrations that fail to implement them. Yet they are ready to use excessive force to defend the policies of those administrations. Even when the gap between the courts and the administration is acknowledged, they believe the onus is on Indigenous Peoples to avoid conflict. For example, RCMP Inspector Kevin Vickers told a Christian Peacemaker Team Delegation that, until specific treaty rights had been clarified under Section 35 of the Constitution Act, “the Esgenoopetitj First Nation should put off exercising their rights…to avoid violence” (as taped by delegate Shira Ta ylor, August 24, 2001). In Par. 22 of its report, Canada references “events at Kanesatake (Oka) in 1990” and lists its “efforts to settle the grievances”. It fails to mention that Oka had been a land dispute, because Canada has to date failed to address the underlying land question, leaving behind the omnipresent threat of the escalation of land disputes and direct confrontation. Since 1990, Canada’s extinguishment policies have been the cause of a number of open conflicts in which Indigenous people have been injured, and in the case of Dudley George, killed. At Gustafen Lake in 1995, an armed stand off occurred over the land rights of Secwepemc people. Instead of trying to negotiate a resolution prior to the escalation of violence, the Canadian government brought in 400 RCMP officers and the army to confront a group of 18, only a few of whom were armed. Public authorities used 77,000 rounds of ammunition in this conflict, as well as land mines (on which Canada was then seeking an international ban). In September of that year, at Ipperwash, 250 heavily armed police confronted less than 30 unarmed protestors, resulting in the death of George and injuries to other Indigenous people, as discussed under Article 2:1(a) above.
Similar uses of excessive force by law enforcement personnel at Esgenoopetitj and Skwelkwek’welt are also documented under Article 2:1(a). Although the use of excessive force by Canadian law enforcement personnel against protestors of all backgrounds has increased dramatically in recent years, most notably at the 2001 Summit of the Americas, the use of excessive force against Indigenous protestors has been routine for some time. In many cases, the Major Crime Units of the RCMP are in charge of the operation, and emergency response, tactical response, and riot police units are dispatched. Rather than maintaining the peace and protecting persons from violence or bodily harm, a “law enforcement mentality” prevails in which “peace officers” participate in, and often aggravate, the situation. For example, this summer in Barriere Lake, Quebec, where the Algonquin community has been in conflict with local forestry workers, Algonquin leaders issued a press release stating “the presence of riot police poses a dangerous escalation in tension in the region” (July 22, 2002). As documented under Article 2:1(a) and Article 5:1(a) above, when Indigenous people are confronted with excessive force in violating federal and provincial laws, such as the Fisheries Act or court injunctions, criminal and othe r charges are usually laid immediately. In contrast, non-Indigenous people violating the same laws (and without the defence of Aboriginal title or rights) do not meet with excessive force, and often receive a warning or are charged with a summary offence and ordered to pay a fine. Article 5(c): Political Rights The BC Referendum is a telling example of the denial of political rights to Indigenous Peoples in Canada. In April, 2002, mail- in ballots were sent to all eligible, registered voters in British Columbia, disadvantaging many Indigenous people, who, though eligible, are often not registered. Many Indigenous and non-Indigenous people who did receive ballots opposed the referendum, as discussed under Preamble, Par. 4 above. Consequently, they either spoiled or did not return their ballots. Many ballots were handed over to Indigenous organizations to protest the proceedings. Halfway through the referendum process, the provincial government announced they would only consider ballots returned to them, and, if the “yes” vote prevailed, they would not list spoiled ballots. The provincial government spent $10 million Canadian dollars to publicize and conduct this referendum, yet offered no funding to Indigenous or other organizations that opposed it to publicize their views. Article 5(d:iii): Right to Nationality One of the underlying issues leading to the 1995 protest at Ipperwash Park was that, for more than 50 years, the Government of Canada had been forcing the Stoney Point People of Aazhoodena to assimilate into the Kettle Point First Nation. Ottawa even went so far as to change the name of the Kettle Point community to Kettle and Stony Point First Nation. This name change took place almost 30 years after the Stoney Point People were forcibly removed from their land in 1942, so that their land could be used as a military training base for the duration of World War II. At the end of the “hostilities,” the land was to have been returned. Some of the members of the Stoney Point First Nation who had been thus relocated to Kettle Point and their descendents returned to their traditional lands in May of 1993. Stoney Point members, including Dudley George, first occupied
the military base and, later, the site of an unprotected burial ground in the adjacent park. They continue to fight for the independence of their Nation from Kettle Point. Article 5(d:v): Property Rights Aboriginal title is the collective proprietary interest of Indigenous people in their traditional territories, yet is not protected by the Canadian government in the same way that other proprietary interests are protected. As documented under Articles 2:1(b) and 5(a) above, private and corporate interests are valued more than Indigenous peoples’ interests. Most historical and current activities of Indigenous people in their traditional territories are based on traditional knowledge and Aboriginal title. The Skwelkwek’welt Protection Centres and the cord-wood house on MacGillvray Lake were erected on the basis of Aboriginal title permits issued by the Secwepemc People. Those receiving the permits did not want to be confined to their reserves, where dire social and economic conditions prevail, including inadequate housing for all band members. When the cordwood house was ordered destroyed by the provincial government and demolished by Sun Peaks workers on December 10th , 2002, the family’s right to housing was violated. (See Appendix for photos) Property rights were also violated in other cases of land and resource rights disputes discussed in this report. The failure of the federal government to return land expropriated from the Stoney Point people, as promised in 1942, or to protect the known burial ground in Ipperwash Park, as requested in 1937, led to the Ipperwash crisis in 1995. In Esgenoopetitj, over a million dollars worth of boats, trucks, traps and other fishing equipment belonging to the community have been confiscated by the Department of Fisheries and Oceans or destroyed by non-Indigenous fishermen. A flotilla of over 200 non-Native fishing boats did over $600,000 worth of damage on the night of October 3, 1999, alone. Similar destruction and confiscation of First Nations property has occurred in other fishing disputes on both the east and west coasts of Canada. Article 5(d:vii): Freedom of Thought, Conscience, and Religion Indigenous people who believe in and exercise their Aboriginal title and rights and experience repression in return contend that their right to freedom of thought and conscience has been violated. One Okanagan elder charged with violations of the Fisheries Act stated eloquently: “If I were to obey your law, I violate my law.” Aboriginal title is defined by Indigenous laws; its recognition should mean that Indigenous interests and values are protected in land and resource management planning and that Indigenous people should not be criminalized for exercising their freedom of conscience in claiming Aboriginal title. In addition, the right to freedom of religion is often violated when sacred Indigenous sites are destroyed or desecrated. For example, a sacred arbour was burnt to the ground at Esgenoopetitj, a burial ground was left unprotected in Ipperwash Park, and sacred sweat lodges were bulldozed at Skwelkwek’welt. The denial of the right to hold a sacred sundance on traditional Indigenous territory in British Columbia led to the Gustafsen Lake stand-off. This kind of persecution is especially painful in cases where perpetrators
are not prosecuted, such as that of the workers at Sun Peaks who publicly celebrated their destruction of Indigenous sacred places and objects. Article 5(d:viii): Freedom of Opinion and Expression Government and corporate spokespeople limit Indigenous peoples’ freedom of opinion and expression when they state publicly that Indigenous people have no right to claim their inherent rights, argue that land and resource rights questions have been settled, and actively try to discredit Indigenous people seeking support in the exercise of their inherent rights. Examples of such statements are provided under Articles 2:1(d) and (e) above. In British Columbia, public authorities and Sun Peaks employees have even called camouflage clothing “an act of aggression” or “declaration of war.” The provincial government and Sun Peaks have sought and won court orders prescribing that the respective Indigenous people cannot wear camouflage, thereby restricting their freedom of expression. Article 5(d:ix): Freedom of Peaceful Assembly and Association The use of excessive force by public authorities against unarmed Indigenous people at Esgenoopetitj, Ipperwash Park, Skwelkwek’welt, and elsewhere clearly demonstrates that Indigenous people do not enjoy this right. By contrast, protests by non-Indigenous peoples against Indigenous communities, such as the flotillas of non-Indigenous fishing boats that have repeatedly entered EFN waters during their fall fishery, are simply monitored by law enforcement personnel. Article 5(f): Access to Places and Services Intended for Use by the General Public The “right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks” has also been violated for Indigenous people in many of the cases featured in this report. At Ipperwash, the police assault took place in a public park, and was carried out before an injunction to remove the protestors came into effect. Further, in dropping 23 charges against the protestors of “forcible” detention of the Park, Assistant Crown Attorney Van Drunen admitted that the protestors were in the park by “colour of right.” In all cases against Secwepemc people, Sun Peaks and the Province of British Columbia have sought to prohibit Secwepemc people from entering the resort. Some community members have been given 2, 5 or 10 km prohibitions from entering Sun Peaks. Secwepemc people from Neskonlith Indian reserve have also been served tickets for camping in a provincial park on Neskonlith Lake, on a shore opposite their reserve and in the heart of their traditional territories. Article 6: Effective Protection and Remedy The lack of effective protection and remedy for Aboriginal title and other inherent rights is argued throughout this report. In the case of the death of Dudley George, Canada’s failure to call a public inquiry into the events at Ipperwash Park in 1995, as directed by the UNHRC in 1999, also constitutes a violation of this article. Instead, members of Dudley George’s family have brought a civil court action against senior Ontario and Canadian officials under a claim for “Wrongful Death.” The George family’s lawsuit is
financed completely through personal and NGO contributions, while the then-premier of the province, Michael Harris, and other officials have access to government funds and expertise for their defence. Furthermore, the state has used its extensive powers to prevent this case from proceeding to a public hearing for more than six years now. The plaintiff in the case, Maynard “Sam” George, has repeatedly said that he would abandon the case if a public inquiry were to be held. Article 7: Implementation of Human Rights Instruments The state-party has been found in violation of each of the six major United Nations conventions on human rights in respect to its treatment of Indigenous Peoples. Yet Canada neither adequately reports on nor consults with Indigenous Peoples in implementing the human rights instruments to which it is signatory. Nor has Canada implemented changes to public school curriculum to promote “understanding, tolerance, and friendship” between Indigenous Peoples and Canadians, in spite of repeated calls for such changes by Indigenous Peoples and educators, as is documented throughout the RCAP report. Little action has been taken by the state to address most of the concerns expressed by UN treaty bodies in their most recent Concluding Observations, including your own.
Section 4: Conclusions and Recommendations In 1996, the Royal Commission on Aboriginal Peoples (RCAP) concluded, “Aboriginal peoples must have room to exercise their autonomy and structure their own solutions. The pattern of debilitating and discriminatory paternalism that has characterized federal policy for the past 150 years must end.” The Commission stressed, “the rebalancing of political and economic power between Aboriginal nations and other Canadian governments represents the core of the hundreds of recommendations contained in this report” (RCAP 1996, Vol. 1:1-3). One of the pre-eminent recommendations of the Royal Commission is that governments provide Aboriginal Peoples with lands that are sufficient in size and quality to foster Aboriginal economic self- reliance and cultural and political autonomy (Vol. 2:574). In April, 1999, the UNHRC recognized that the RCAP Report provided the necessary framework to resolve persistent human rights problems for Indigenous people in Canada, and urged that “decisive and urgent action be taken towards the full implementation of the RCAP recommendations on land and resource allocation.” Racial tension and conflict between Indigenous Peoples, governments, and settlers in Canada arise from the state-party’s systemic and institutional discrimination against Indigenous proprietary interests in land and resources. The evident failure of the stateparty to “recognize and protect the rights of indigenous peoples to own, develop, control, and use their communal lands, territories, and resources” contravenes ICERD General Recommendation #23. When Indigenous persons exercise their rights to protect the collective interests of their People in regards to land, resource, or cultural inherent or treaty-based rights, they are often subject to individual human rights violations and the
restriction of their fundamental freedoms in the political, economic, social, cultural, or other fields of public life, as condemned in Article 1 of ICERD. Clear cases of this treatment are documented in Section 3 of our report. Canada’s failure to act in a “just, fair, and prompt” manner to resolve disputes over land and resources is further illustration of the state-party’s noncompliance with the letter, intent, and spirit of the ICERD. Six years after the release of the RCAP Report, however, there is no indication that the federal government has any intention of changing its policy approach with respect to Indigenous Peoples. None of the state-party’s recent initiatives as referred to in Canada’s update submitted to this Committee—the federal government’s official response to the Royal Commission, Gathering Strength; Bill C-60; Bill C-61; and the 2001 Speech from the Throne—substantively address the dispossession of Indigenous Peoples within Canada from their lands and resources. Nor do they provide for increased recognition of the cultural, language, and other collective human rights of these Peoples. Such goals can only be accomplished by honouring treaties, recognizing Aboriginal title, and insuring that Indigenous Peoples have access to adequate lands and resources. While implementing RCAP recommendations pertaining to land and resource rights will be costly, RCAP convincingly argues that the cost of not doing so will shortly be much higher, given rising inter-racial tensions and the burgeoning Indigenous population. The hard work has been done by the Royal Commission—the task of imagining how a different world might look and the development of recommendations that will help create this world in Canada. CERD Article 7 requires state-parties to undertake pedagogical, cultural, and public information campaigns “to combat prejudices” and to promote “understanding, tolerance, and friendship.” Such public education—or “building awareness” as Indigenous Peoples call it—must go hand in hand with the implementation of RCAP’s recommendations to rebalance “political and economic power between Aboriginal nations and other Canadian governments” (RCAP 1996, Vol. 1:1-3). As Chief Art Manuel, who has been centrally involved with the Skwelkwek’welt dispute, says: As an Indigenous person and Chief of the Neskonlith Band, this presentation to the CERD Committee is a tribute to all our freedom fighters that have been criminalized, incarcerated, and even slain. We need the help of the CERD Committee in revealing the truth about Canada. We are not talking about rejected position papers or funding proposals. We are talking about human life. We are talking about a system that is bent on its own self-preservation, caught in a fundamental conflict of interest. We are talking about Indigenous Peoples repeatedly going to a court established by settler Canadians, because settler Aboriginal and Treaty policies do not match up to the broader scope of the legal decisions of the Supreme Court of Canada and the Constitution of Canada. We need help because the framework which our parents and grandparents left us, as Indigenous People, has the possibility of making real change for Indigenous People around the world. The framework our ancestors fought for – recognized in Section 35 of the Canadian constitution, and in the Supreme Court of Canada’s Sparrow, Marshall and Delgamuukw decisions, as well as the recent B.C. court Haida decision – give me confidence that we are heading towards a more just social and political relationship. What we lack is political commitment from Canada. International attention in this regard may not solve the problem, but it will help.
Section 5: Questions for Canada Will you, as requested by the UNHRC (April 1999), take “decisive and urgent action… towards the full implementation of the RCAP recommendations on land and resources allocation?” Will you acknowledge, as stated by the UNHRC (April 1999), that the extinguishment of Aboriginal Rights is incompatible with Article 1 of the Covenant on Civil and Political Rights, and also incompatible with the Supreme Court of Canada’s Delgamuukw decision, which affirms Aboriginal title? Will you engage in meaningful consultation with the Assembly of First Nations and other legitimate traditional and Aboriginal organizations, around their full range of concerns – poverty, education, employment, land rights, and treaty implementation – prior to any further executive action on Bill C-60 or Bill C-61? Will you ensure that a full public inquiry into the events at Ipperwash is called before December 31, 2002? Will you immediately take steps to address the land and resource rights issues which are at the heart of the Skwelk wek’welt dispute, and drop charges against Secwepemc people exercising their rights? Will you immediately return the fishing equipment and boats, central to their means of subsistence, to the Mi’kmaq People of Esgenoopetitj and other communities, and drop charges against Mi’kmaq and other Indigenous people exercising their inherent right to a “moderate livelihood, as affirmed by the Supreme Court of Canada in the Marshall decision, from the resources within their territories? Will you identify the steps being taken to protect the civil and political rights of Indigenous Peoples and individuals who use non-violent protests and action to assert their international human rights as per Article 1 of the Covenants on Civil and Political Rights and on Social, Economic and Cultural Rights? Will you revise the amendments to the Indian Act enshrined in Bill C-31, as directed by the UNHRC (April, 1999), to ensure that no further discrimination occurs to children of Indigenous mothers who were disenfranchised as Indigenous people due to earlier discriminatory provisions? Will you commit to the development of an Indigenous-led public education program and public school curriculum, as identified by RCAP, to inform the Canadian population about the perspectives and issues of Indigenous Peoples within your borders, regarding their worldviews, histories, land and resource rights, and other contemporary concerns?
APPENDIX I: LIST OF ARRESTS AND CHARGES A. SKWELKWEK’WELT AND SUTIKALH British Columbia Assets & Lands Corporation Offices Occupation – May 2001 1. Sarah Deneault 2. Nicole Manuel 3. Amanda Soper 4. Johnny Guitar 5. Mindy Dick 6. Geoff Humphrey 7. Simon Riis 8. Rose Jack 9. Larrisa Nelson 10. Kiko Montilla 11. Joe Romandia 12. Gary Bob ]3. Marcus Sauls 14. Francis August 15. Max Carpenter 16. Trevor Dennis
Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt Criminal Contempt
Native Youth Movement at Sun Peaks Village Horse and Carriage Incident - June 24, 2001 17. Nicole Manuel 18. Dave Sanderson 19. Geoff Humphrey 20. Amanda Soper 2 1. Rose Jack 22. Joe Romandia 23. Kiko Montilla
Mischief Arrested for Obstruction of a Peace Officer (Released shortly after with no charges laid) - McGillivary Lake Raid Obstruction of a Peace Officer - McGillivary Lake Raid Mischief Arrested for Uttering Threats (Released shortly after with no charges laid) Mischief (Charge of Assault was dropped when the Crown realized his action taken were in defense of his sister) Outstanding Warrant for 2 Assault Charges
SUTIKALH - Melvin Creek Roadblock - July 5, 2001 24. Roy Howlett 25. Lawrence Pascal 26. Jaremiah Kinistino 27. Waylon Paquachan 28. Krisandra Alfred 29. Alaina Tom
Intimidation by Blocking a Road Intimidation by Blocking a Road Intimidation by Blocking a Road Intimidation by Blocking a Road Intimidation by Blocking a Road Intimidation by Blocking a Road
Forcible Removal of Secwepemc From Their Home at Skwelkwek'welt Protection Centre - July 23, 2001 30. Charlie Willard Criminal Contempt 31. Irene Billy Criminal Contempt 32. George Manuel Criminal Contempt 33. Henry Saul Criminal Contempt Excavator 34. Marcus Sauls 35. Rodrick Anderson 36. Rose Jack 37. Trevor Dennis 38. Emery Dick
Mischief Mischief Mischief Mischief Mischief
Skwelkwek'welt Summer Roadblock 39. Miranda Dick Intimidation by Blocking a Road 40. Joe Romandia Intimidation by Blocking a Road 41. Beverly Manuel Intimidation by Blocking a Road 42. Nicole Manuel Intimidation by Blocking a Road 43. Amanda Soper Intimidation by Blocking a Road 44. Rose Jack Intimidation by Blocking a Road 45. Marcus Sauls Intimidation by Blocking a Road 46. Trevor Dennis Intimidation by Blocking a Road 47. Dustin Eberly - Intimidation by Blocking a Road Cabin B&E 48. Geoff Humphrey
Break & Enter (Charges Dropped) Resisting Arrest
Issuing of Seizure Notice – November 2001 49. Marcus Sauls Breach of Bail Conditions 50. Dave Sanderson Obstruction of a Peace Officer & Resisting Arrest 51. Mike Obstruction of a Peace Officer & Resisting Arrest 52. Jim Gregory Obstruction of a Peace Officer & Assaulting a Peace Officer 53. Amanda Soper Outstanding Warrant for Obstruction of a Peace Officer & Assaulting a Peace Officer Skwelkwek'welt Winter Roadblock – December 2001 54. Irene Billy Intimidation by Blocking a Road 55. Janice Billy Intimidation by Blocking a Road 56. Elizabeth Clemah Intimidation by Blocking a Road 57. Winnie McNab-lulu Intimidation by Blocking a Road 58. Shiela Ignace Intimidation by Blocking a Road 59. Dave Sanderson Intimidation by Blocking a Road, Obstruction of a Peace Officer, Mischief, Resisting Arrest 60. Marcus Sauls Breach of Bail Conditions
B.PARTIAL LIST OF PEOPLE CHARGED re: THE BURNT CHURCH FISHERIES CONFLICT2001 1. Robert Paul 24. Roland Joe 2. Derek Dedam 25. Wendy Mitchell 3. James Ward 26. Dennis Dedam 4. Danny Ward 27. Shane Francis 5. James Simon 28. Curtis Bonnell 6. Martina Parker 29. Steven Comeau 7. Rayburn Dedam 30. Clifford Larry 8. John Lambert 31. Wilfred Dedam 9. Keith Lambert 32. Terry Doorwood 10. Buddy Dedam 33. Dave Keyway 11. Tretiak Larry 34. Eldon Joe 12. Shane Ward 35. Alvery Paul 13. Dana Dedam 36. Gary Summerville 14. Joey Grant 37. Ivan Mallet 15. Joey Ward 38. David Bartibogue 16. Larry Parker 39. Alfred Dedam (Big Cove) 17. Wilbur Dedam 40. Donald Sanipass (Big Cove) 18. Mark Simon 41. Roy Abraham Peters (Big Cove) 19. Jason Barnaby 42. Brian Caplin (Listigouche) 20. Stafford Paul 43. Donald Barnaby (Listigouche) 21. John William Duplessis 44. Tracy (Christian Peacemaker Teams – CPT) 22. Leo Bartibogue 45. Father Robert Holmes (CPT) 23. Brian Bartibogue 46. William Payne (CPT) C. PARTIAL LIST OF ARRESTS at IPPERWASH September 1995 At least 28 Indigenous 10. Glenn George people were arrested as a 11. Pierre George result of the police assault 12. Carolyn George against the Stoney Point 13. Marcia Simon Peoples non-violent land, 14. Melva George treaty and cultural rights 15. Nicholas Cottrelle protest and occupation of 16. Stewart George Ipperwash Park. Some of 17. Judas George these include: 18. Bernard George 1. David George In all, sixty-two charges 2. Rose Manning were laid, and most of 3. Bruce Manning these were dropped before 4. Bert Manning trial. The last protestor to 5. Joanne Manning go to trial, Warren George, 6. Stacey George was convicted despite using 7. Gina George precisely the same evidence 8. Robert George that acquitted Nicholas 9. Warren George Jr. Cottrelle.
D. SENTENCES for NUXALK Defenders 1998
Nuxalk Chiefs and elders in Court 1998 Nuxalk Chief Qwatsinas was sentenced to 45 days in jail and the sentence was suspended. Warren Snow, Harry Schooner, Emily Johnny, Collette Schooner and Ernie Tallio were sentenced to 21 days in jail, sentence suspended. All defendants received two years probation and had to sign an undertaking to keep the peace.
ACTS OF RACIAL HATRED Skwelwek’welt Protection Centre – Cabin Destroyed – no Police investigation
Cabin Assembled May 22nd, 2002 Cabin destroyed by Arson June 30th , 2001 Sutikalh – Cabin Vandalized – No Investigation
Cabin used by St’at’imc People destroyed July 2002
NAZI Symbols sprayed on the cabin
Car destroyed next to the Cabin, bullet holes in car
Like in the case of the bullets fired at the Sutikalh Camp, no investigation followed