Aboriginal Rights ARE Human Rights

A Public Forum sponsored by the Coalition for a Public Inquiry into Ipperwash, was held on March 18, 2000 in Toronto.The Forum was held to commemorate the 43rd anniversary of the birth of Dudley George, who was fatally shot by police while peacefully defending his traditional territory Aazhoodena, or Stoney Point, also known as Ipperwash Park.

Also present to give remarks at this Forum were: Marilyn Buffalo, President, Native Womens Association of Canada, Sam George,brother of Dudley George and plaintiff in the civil suit against government officials for his brother's "Wrongful Death", Patricia Monture-Angus,Professor at the University of Saskatchewan, speaking about matters that included abuses by police in that region, and Carlos Chen Osorio,Mayan-Achi, speaking of the human rights abuses endured by indigenous Peoples in Guatemala.

The keynote address was given by Professor Dr. Martin Scheinin, expert member from Finland on the United Nations Human Rights Committee. These are his remarks:

"Good afternoon, ladies and gentlemen."I would like to start by joining with you in commemorating the life of Dudley George and sharing with you the grief over his untimely death."As told, I am a member of the Human Rights Committee, a treaty body under the Covenant on Civil and Political Rights. I came here from New York where we are having a new session dealing with a new set of countries which we review three times a year, usually six countries per session.

Last year, we had Canada's report in the New York session, and we dealt with human rights problems in Canada, including many issues relating to the situation of Aboriginal Peoples in Canada."I'm grateful, so is the Committee as a whole grateful, to all those who took the trouble to write their briefs and come to brief to us personally in New York. It is really essential for an expert review on any country's human rights record that there are people out there who are willing to put together their efforts and to raise concerns, develop briefs, and argue against governments, criticize governments, and tell us their view of the situation.

"A year ago, we concluded dealing with the report of Canada with a set of "Concluding Observations" - that is kind of the 'findings' the Committee makes at the end of the reporting procedure.

I would like to read the paragraph in the "Concluding Observations" that relates to the tragic events in Ipperwash Park in September, 1995: "The Committee is deeply concerned that the State party so far has failed to hold a thorough public inquiry into the death of an aboriginal activist who was shot dead by provincial police during a peaceful demonstration regarding land claims in September 1995, in Ipperwash.The Committee strongly urges the State party to undertake a public inquiry into all aspects of the matter, including the role and responsibility of public officials."

"So, this quotation comes from the Concluding Observations of the UN Human Rights Committee, and the words are based on the binding international treaty obligations of Canada. From there, the Committee derives the responsibility of the federal Canadian government to conduct a public inquiry into all aspects of this matter."Of course, the Committee is not, here, speaking on behalf of the United Nations as a whole. The United Nations is both an agent and a platform, and I know there is a lot of distrust [about] the United Nations from the side of Aboriginal Peoples. It is true that the UN was established as an international organization. It's an intergovernmental organization - primarily it is composed of states as its members. As such, the structure of the United Nations represents the state-centred structure of international law. As traditionally seen, individuals, or Peoples, are not members of the UN. The states are those that are represented and they make the decisions. When we look at the UN as an actor, we look usually at States - how they operate through the UN decision-making process - basically through the Security Council."Of course, in the Charter of the United Nations there are references to human rights and human rights are one of standards, normative standards,upon which the Security Council bases its action.

For instance, sanctions or humanitarian intervention can be based on human rights concerns."The UN has dealt with the de-colonization process. It has a certain role in promoting the right of all peoples to self-determination, and one of the major achievements of the United Nations has been the process towards independence and self-determination of so many nations in the 1960's and surrounding decades."But, of course, we must at the same time see that the efforts of the UN towards de-colonization have been limited, they have been dictated and limited, by State interests.

"For instance, in relation to the notion of self-determination, a doctrine was used which is called the "Salt Water Theory". Those Peoples have a right to establish their own State, as an expression of their right to self-determination, who are colonized and controlled by another People who live across an ocean, on the other side of 'salt water'. [However] whereas in those situations where the colonized are among the colonized doesn't equate to colonization at the present time, in the meaning that the result would be a need to establish a new state for those who have been colonized. This is the interplay of foreign politics in the international arena, and this doctrine of the 'salt water' has been part of the program of the UN in relation to de-colonization."I understand why so many indigenous or Aboriginal Peoples have distrust in relation to this approach by the UN."Well, as I said, the UN is not only an actor, it's also a platform and I'd like to turn to its human rights program. "That program consists of many parts, and I'll just mention some of them."

First of all, the UN Human Rights program is headed by the High Commissioner of Human Rights, which is one person - the former President of Ireland, Mary Robinson. She gives visibility to human rights as part of UN activities. She is responsible for trying to mainstream UN policies so that human rights will be a constituent element in everything the UN does. She deals with emergency situations,with a field presence of the UN in relation to human rights, etc. "Besides the head, the UN human rights program has a political arm which consists of a Commission on Human Rights. The Commission is a body composed of government representatives meeting annually in Geneva. It has several functions: it passes country resolutions on human rights situations, it appoints Special Rapporteurs on countries or on thematic matters, and it participates in the drafting of new human rights instruments.

For instance, currently, the Commission on Human Rights is dealing with the Declaration on the Rights of Indigenous Peoples."Thirdly, the UN has a legal arm, which consists of inter national human rights treaties and the procedures developed to monitor these treaties. The United Nations Human Rights Committee, on which I have had the privilege to serve for a four year term, is one of those treaty bodies. It has the task, on a non-selective basis, to deal with the implementation of legal obligations by those states that have voluntarily ratified the treaty in question."The UN has several human rights treaties.

The Covenant on Civil and Political Rights is one of them. It was adopted in 1966 and, today, has been ratified by 144 countries around the world, Canada among them. Under the CCPR, as treaty body the HRC has two essential functions - first of all it monitors all the 144 states on the basis of their reports. The government sends a report and the Committee reviews the report on the basis of what the government says and what all other relevant actors, including non-governmental organizations and other civil society actors, say about the human rights situation. Its our task as individuals and international experts to assess the situation, to find whether the country is in compliance with its treaty obligations, and to make the necessary recommendations."The second major task is to deal with individual complaints. This is done in relation to those countries that have ratified, besides the Covenant itself, also another instrument called the "Optional Protocol". Only 95 countries are parties to the Optional Protocol, but Canada is among them. So we can receive individual complaints and this means an alternative basis for initiating a grievance before the Committee."The reporting procedure is an all-encompassing procedure. It's useful because its regular and un-selective, but it is also problematic because it happens only every five years or so. Meanwhile, in between there's always the possibility of sending an individual complaint, if your country has ratified the Optional Protocol, and so is the case for Canada .

"There are several provisions in the Covenant on Civil and Political Rights which are of special relevance for indigenous or Aboriginal Peoples. The starting point of the Covenant is, similar to many other human rights treaties, with the protection of individual rights. Of course, Aboriginal rights bear a strong collective dimension and they usually are meaningful rights only when an individual is protected as a member of his or her community - and the community enjoys protection as well. "Nevertheless, individual members of Aboriginal groups, of course deserve protection for their right to life, their freedom of movement, their personal liberty, their right to fair trial, etc., and violations of these rights are individual human rights violations."Among those rights that have a clear collective dimension as group rights,I'd like to mention some.

First of all the Covenant on Civil and Political Rights has a strong non-discrimination clause, article 26, which prohibits as grounds for discrimination, for instance, membership in a group. "Secondly, there's a clause on minority rights, article 27, [which says that any] person belonging to "ethnic, religious or linguistic minorities´┐Ż shall not be denied the right, in community with the other members of their group,to enjoy their own culture, to profess and practise their own religion, or to use their own language." "This has been the main provision for cases on indigenous rights under the Optional Protocol procedure. The Committee has received cases from Canada, some of the Nordic countries, from the indigenous Sami People there and has heard from other countries as well, where the minority rights clause have been used to further the interests and protect the rights of indigenous peoples. It's phrased in terms which combine the individual and the collective dimension, it's a question of individual rights, but an individual taken in community with other members of his or her group. Some indigenous people in the world have been unwilling to use this clause because they don't want to be classified as minorities.

But, the Human Rights Committee has done its best to show its own commitment to the cause of indigenous people by saying that indigenous peoples - be they in majority or minority - deserve the same protection because they - despite what the country figures - are in need of this protection for their religion, language and culture."Some of the Canadian cases under this provision are the Lovelace case and the Lubicon Band case. Both of them were successful in the sense that the Human Rights Committee [agreed with the complainants that there was a human rights violation] 'found' the violation of article 27, by Canada. Both of them were problematic in that, despite the violation found, the problems have not been fully remedied.

In the Lovelace case, The Indian Act was amended, but the discrimination will be repeated in future generations. The problem was not solved, although the law was amended. In the Lubicon case - the Lubicon are still waiting for the remedy. The violation was established, and it was proclaimed by the Human Rights Committee that they are entitled to a remedy, but still we don't know what the end solution is."The Sami, of my part of the world - the Nordic countries, have brought some cases under the Optional Protocol procedure in order to protect their indigenous life and traditional economic activities. And it has been one of the major conclusions in the cases of the Human Rights Committee, under article 27, that indigenous forms of economic life fall under the notion of culture. So, the Sami have defended their reindeer herding rights, by complaining to the Human Rights Committee, against mining or logging activities. They haven't 'won' their cases, but through their cases they have been part of establishing the jurisprudence that establishes the criteria [to be used to determine] when governments can interfere with traditional indigenous economy. Basically these criteria are: a) effective consultation, full consultation of everyone involved; and b) sustainability of the traditional indigenous economy - it's not the economic benefit of the population as a whole that matters, it's the indigenous economy which must survive and that's the criteria for when interference can be allowed.

"There have been other Canadian cases where a third provision has been referred to - article 1, that is the right to self-determination. To be blunt, these cases have led to a disappointment because the UN Human Rights Committee has been unwilling to deal with complaints based on the right to self-determination. "I wouldn't say that the Human Rights Committee has abandoned self-determination as a right, but it has said that it's not an individual right and the procedure for individual complaints can only be used in relation to individual rights. So, this has been the procedural decision - when the Human Rights Committee has, for instance, in the Mi'kmaq Marshall case said that you cannot bring a complaint against your government under the right of all peoples to self-determination. What you can do, is that you can raise issues related to self-determination in the reporting procedure.And, here I can say that the Human Rights Committee is improving its record in the sense that, during recent years, there has been more and more emphasis put, when reports are examined, on whether the right of all people to self-determination has been respected.

"I started by quoting the passage from the Human Rights Committee Concluding Observations that relate directly to case of Dudley George, and I'd like to conclude by referring to those paragraphs in the same set of Concluding Observations that relate to the right to self-determination. The case of Canada is one of the clearest ones in which the Human Rights Committee has indicated that it takes the right to self-determination seriously, and the two paragraphs on that issue read as follows:"The Committee, while taking note of the concept of self-determination as applied by Canada to the aboriginal peoples, regrets that no explanation was given by the delegation concerning the elements that make up that concept, and urges the State party to report adequately on implementation of article l of the Covenant in its next periodic report."

"Basically the committee is saying that the right to self-determination of all peoples applies, also, internally and it's clearly a step away from the "Salt Water Theory". It doesn't say that there's a right to Statehood, but it says that there are maybe other forms in which the right to self-determination can be realized and must be realized on the basis of the treaty obligations."Secondly the next paragraph reads: "The Committee notes that, as the State party acknowledged, the situation of the aboriginal peoples remains "the most pressing human rights issue facing Canadians".

In this connection, the Committee is particularly concerned that the State party has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With reference to the conclusion by RCAP that without a greater share of land and resources, institutions of aboriginal self-government will fail, the Committee emphasizes that the right to self determination requires, inter alia, that all peoples must be able to dispose freely of their natural wealth and resources and that they may not be deprived of their own means of subsistence (art.1, para.2).

The committee also recommends that decisive and urgent action be taken toward the full implementation of the RCAP recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article l of the Covenant." "Article 1 is about the right to self-determination and it includes also an economic dimension because the provision itself says "in no case may a people be deprived of its own means of subsistence". This is a very relevant component of the right to self-determination in the case of indigenous or Aboriginal peoples.

"Today we're facing a problem in relation to how to implement the Concluding Observations of Canada. These are pronouncements by an international expert body: what problems there are in Canada's human rights record, and what Canada should do in relation to these problems, to remedy them. We are told by the Canadian federal government that many of these issues pertain to the field of provincial jurisdiction and that is why the federal government sees itself as impotent to take all the necessary measures."This relates to the public inquiry on Dudley George and this relates to the implementation of Aboriginal land rights as well."Well, the answer is rather simple from the viewpoint of international law because, it doesn't matter what the Canadian legal system or event the constitution says how the competencies are internally divided, Canada has an international responsibility for its treaty obligations. And, the Covenant explicitly says in article 50 "'the provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions"."It needs to be noted likewise that when Canada decided voluntarily to ratify the Covenant on Civil and Political Rights, it didn't do it without the knowledge of the provinces. On the contrary, there is a document on record where the province of Ontario wholeheartedly supports Canada ratifying the Covenant. "So, it's no excuse in relation to international law or the UN Human Rights Committee what are the constitutional structures and the distribution in the fields of competencies domestically - it's something to be sorted out between the federal authorities and the province.

What matters to the international community is that Canada complies with its international treaty obligations sooner or later and, of course - the sooner, the better.

"Thank you."

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