The Human Rights of Indigenous Peoples must be protected
Canada must now work out fair and lasting terms of coexistence with Aboriginal people…. Canada's claim to be a fair and enlightened society depends on it. [1]
It has been ten years since the Royal Commission on Aboriginal Peoples (RCAP) called for comprehensive reforms to achieve a just accommodation with the values, needs and rights of Indigenous peoples in Canada. The report was the culmination of more than 178 days of hearings across Canada and more than 350 research projects. Yet, most of its recommendations remain unimplemented.
Despite a clear duty under international and domestic law to protect and promote the human rights of Indigenous peoples, governments in Canada have time and again failed to undertake the fundamental policy reforms necessary to fulfill this obligation. Numerous high level reports (such as the Royal Commission, provincial justice inquiries, United Nations human rights treaty body recommendations and the report of the UN Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous people) constitute an unfinished agenda for upholding the human rights of Indigenous peoples.
1. In land and treaty disputes
RCAP estimated that since Confederation two-thirds of the lands in the possession of Indigenous peoples – lands essential to Indigenous peoples’ enjoyment of their basic human rights -- have been “whittled away” through appropriation, theft, encroachment, and the environmental consequences of policies and activities imposed on Indigenous peoples without their consent. According to RCAP, this has been a central factor behind pervasive problems of impoverishment, ill-health and social stress afflicting Indigenous communities across Canada.. The Commission urged immediate government action to ensure fair and timely resolution of the hundreds of outstanding disputes over Indigenous land and resources, warning that:
"Without adequate lands and resources, Aboriginal nations will be unable to build their communities and structure the employment opportunities necessary to achieve self-sufficiency. Currently on the margins of Canadian society, they will be pushed to the edge of economic, cultural and political extinction. The government must act forcefully, generously and swiftly to assure the economic, cultural and political survival of Aboriginal nations."
Despite these urgings, little progress has been made over the past decade to resolve the vast majority of outstanding Indigenous land and resource disputes in Canada. In the report of his 2004 mission to Canada, the U.N. Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, noted:
"Métis land claims have not been dealt with in any significant way, except partially in Alberta, leaving the Métis without a land and resource base and with no way of settling their grievances at the national level. Some Aboriginal nations have not received any land allocations and there have been few mechanisms to allow for the extension of the land and resource base of First Nations as their populations and needs grow. In other cases, the lands concerned are being denuded of natural resources before Aboriginal claims are recognized and can be addressed.... Their inherent right over natural resources is in many instances not recognized by the various orders of government and frequently the authorities apply other laws and statutes that limit the exercise of such Aboriginal rights." [2]
The numerous outstanding disputes over Indigenous lands and territories reflect the extensive systemic barriers faced by Indigenous peoples in the assertion of their rights, including the adversarial role the federal government plays in the negotiation of treaties and the resolution of land and treaty disputes and the continued failure of federal and provincial authorities to adequately integrate critical international standards for the protection of Indigenous rights into domestic law and policy.
- The government should collaborate with Indigenous peoples in developing impartial and expert mechanisms to resolve land and treaty disputes in an integrated and streamlined manner taking full account of all rights protected in national and international law.
- All governments in Canada should enact policies consistent with international human rights standards, which require that unless the affected peoples give their consent, activities that could jeopardize the rights of Indigenous peoples will not be permitted on disputed land until title is fairly resolved.
In 1990, the Human Rights Committee issued a detailed report documenting serious violations of the rights of the Lubicon Cree, stemming from a decades-old failure to enter into an agreement with the Lubicon regarding their land rights in northern Alberta while allowing resource exploitation to proceed on disputed lands. The Committee called on the government to ensure a prompt and just settlement of the dispute. [3] Sixteen years later the dispute remains unresolved, resource extraction has expanded exponentially, and there have been no negotiations between the government and the Lubicon for three years. Last year, the Human Rights Committee called on Canada to make every effort to resume negotiations. [4]
- The government must make it a high priority to negotiate a just settlement of the land rights dispute with the Lubicon Cree that ensures full protection of the rights of the Lubicon Cree under national and international law
2. For Indigenous children
RCAP highlights that the forced removal of Indigenous children from their families and communities to attend residential schools has had disastrous consequences for the stability of Indigenous communities. It has been estimated that there are now three times the number of Indigenous children being removed from their families than at the peak of the residential school era. [5]
Removal of children from their families is sometimes necessary to guarantee their health and safety. However it is preferable, whenever possible, to ensure children’s welfare within their culture and community to help foster a sense of identity, belonging and self-worth.
In 2000, the federal government acknowledged that chronic under-funding of child and family services in Indigenous communities means that Indigenous communities were often denied access to services that could provide for Indigenous children’s welfare while keeping them within their families and communities. [6] Of particular concern was the lack of adequate funding for preventative and early intervention programs that could address emerging problems before removing children from their families would be necessary.
In 2000, the average federal funding for Indigenous child and family services was 22% lower per child than what provincial governments provided for non-Indigenous children. This is despite the higher costs of providing services in small and remote communities, the ongoing impacts of the residential school experience on the stability of Indigenous communities, and the higher levels of poverty experienced by Indigenous communities. Indigenous child welfare organizations believe the gap has grown even larger since 2000, due in part to the failure to adjust spending for inflation.
The federal government has acknowledged that Indigenous children are four to six times more likely than non-Indigenous children to be removed from their families and placed in the care of the state, [7] while a recent independent study of three provinces found that First Nations children with status under the Indian Act were fifteen times more likely than other children to be removed from their families. [8] Critically, the vast majority of Indigenous children are removed from their families not because of abuse, but because of neglect, often as a consequence of poverty. [9]
- The government should act immediately to end the disparity in funding for Indigenous child and family services; and ensure that the best interests of Indigenous children are protected by effective preventative and early intervention programs.
3. At the United Nations
The United Nations Declaration on the Rights of Indigenous Peoples has been under development for more than two decades. On June 29, 2006 the newly created UN Human Rights Council adopted the Declaration by a vote of the overwhelming majority of its members. At time of writing, the Declaration is under consideration by the UN General Assembly which is expected to adopt the Declaration before the end of 2006.
Canada has been one of the few states to actively oppose the adoption of the Declaration. At the Human Rights Council, Canada called for the vote on the Declaration and was one of only two Council members to vote against the Declaration. (Russia was the other.) Canadian officials announced that they would continue to oppose the Declaration when it came before the General Assembly.
Amnesty International representatives attended the UN Working Group and witnessed the constructive role Canada played in the final negotiation of the Declaration text. It was deeply disappointing, therefore, when Canada dramatically reversed its position on the Declaration at the moment when momentum had been built for its adoption. In opposing the Declaration in the Human Rights Council and the General Assembly Canadian officials have resurrected spurious arguments against the Declaration that they had refuted in the Working Group only a few months earlier. Of particular concern is the fact that Canada changed its position without consultation with Indigenous peoples’ organizations in Canada, despite the clear implications for their rights.
- The government should return to dialogue with Indigenous peoples organizations with the intent of promoting the UN Declaration on the Rights of Indigenous Peoples in Canada and abroad, including by working to ensure that Canadian law, policy and practice conforms to its provisions and spirit.
Notes:
[1] Royal Commission on Aboriginal Peoples. People to People, Nation to Nation: Highlights from the Report of the Royal Commission on Aboriginal Peoples. 1996
[2] Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen , Addendum: Mission to Canada. 2 December 2004. E/CN.4/2005/88/Add.3.
[3] Views of the Human Rights Committee, Communication No. 167/1984: Canada, Submitted by Chief Bernard Ominayak and the Lubicon Lake Band, CCPR/C/38/D/167/1984, 10 May 1990.
[4] Concluding observations of the Human Rights Committee: Canada, CCPR/C/CAN/CO/5, 20 April 2006, para. 9.
[5] First Nations Child and Family Caring Society of Canada. UNCRC Day of General Discussion: Children without Parental Care - The Chance to Make a Difference for this Generation of Indigenous Children: Learning from the Lived Experience of First Nations Children in the Child Welfare System in Canada. 16 August 2005. www.fncfcs.com
[6] First Nations Child and Family Services Joint National Policy Review, June 2000.
[7] “Building a Brighter Future for Urban Aboriginal Children: Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities,” June 2003.
[8] The First Nations Child and Family Caring Society of Canada. Wen:de - We are coming to the light of day. October 2005. p. 44. www.fncfcs.com
[9] Wen:de, p. 14.
Posted: 14 December 2006