Canada: Ipperwash Inquiry - Summary of AI Submissions [1]
Dudley George (CP/Carolyn George)
On September 6, 1995, Dudley George was shot and killed by an Ontario Provincial Police officer during a land rights protest at Ipperwash Provincial Park. The current inquiry into the circumstances surrounding the shooting is an important and long overdue step toward justice for the family of Dudley George. It also a vital opportunity to examine underlying issues of critical importance to the rights, welfare and safety of Indigenous peoples across Canada and, indeed, around the world.
Amnesty International is among those organizations that long called for such an inquiry. Our principle concerns relate to a) the persistent failure of Canadian officials to ensure fair and timely resolution of disputes over lands, territories and resources critical to Indigenous peoples’ enjoyment of their basic human rights; b) the consequent criminalization of Indigenous persons who assert their rights in respect to disputed lands and resources; and c) the need to ensure that even when public officials have failed in their duty to fairly uphold the human rights of all, police officers do not.
The relevance of international human rights laws and standards
International human rights law includes binding treaties that, having been ratified by Canada, are part of the law of the land. In addition, there are norms and standards derived from non-binding declarations and the expert interpretation of human rights treaties that should guide public officials, police and courts. The relevance of international human rights standards to the Canadian justice system has been underlined repeatedly by the Supreme Court of Canada.
Amnesty International believes this inquiry should consider international human rights standards in making recommendations for policy reform in Canada. By doing so it can help advance a clearer understanding of state obligations in respect to Indigenous peoples. Such an understanding may contribute to improved protection for Indigenous peoples across Canada. Critically, it might help advance the rights of Indigenous peoples in countries where such an inquiry would probably never be held.
Federal and provincial responsibilities
It is the federal executive that ratifies international human rights treats. The federal government also has a specific obligation to safeguard the rights and welfare of Indigenous peoples under the Canadian Constitution. But it is often a provincial government that asserts jurisdiction over disputed local lands and resources.
When in 1999 the UN Human Rights Committee called for an inquiry into the killing of Dudley George, the recommendation was directed to the federal government. However the federal government claimed it was powerless to comply because the concerns were outside its jurisdiction. For its part the government of Ontario at the time argued that it did not need to act on the recommendation because compliance with international human rights treaties was a federal affair.
This is unfortunately typical of the way in which the division of powers between federal and provincial governments is used by both federal and provincial governments to avoid their obligations toward Indigenous peoples.
Land and resource rights
Secure access to lands and natural resources is a critical precondition for Indigenous peoples to enjoy their fundamental human rights, including their rights to livelihood, health, human dignity and cultural identity. Accordingly, international human rights standards consistently emphasize the strong obligation of states to recognize and uphold the land and resource rights of Indigenous peoples. UN treaty bodies have repeatedly condemned the removal of Indigenous peoples from their lands, or any decisions that infringe on Indigenous peoples’ use of the land, undertaken without meaningful consultation and the free, prior informed consent of the affected peoples.
As the Royal Commission on Aboriginal Peoples acknowledged, Indigenous peoples in Canada have been deprived of more than two-thirds of the land base they held at the time of Confederation. There are significant barriers to righting this historic and ongoing wrong, including the lack of appropriate independent bodies to mediate the timely resolution of such disputes. The rights of Indigenous peoples are often left unprotected while land claims drag on for years. In the meantime, governments often allow non-Indigenous interests to enter into and exploit the disputed lands, setting the stage for confrontation between two different interpretations of who has the right to the land.
Criminalization of Indigenous land protests
Participation in public protest involves the exercise of basic human rights including the right of free expression, the right of political participation and the right of peaceful assembly. Additional issues come into play in the case of Indigenous land protests. Indigenous communities may sincerely believe they are acting within their rights when they occupy disputed lands. And they may eventually be proven right. Unfortunately, there is a clear and dangerous tendency on the part of governments, police, and the public to label Indigenous protestors as criminals even while the underlying rights issues remain unresolved.
It is encouraging that the OPP Framework for Police Preparedness for Aboriginal Critical Incidents, which has been put in place since the confrontation at Ipperwash, clearly states that “it is the role of the OPP and all of its employees to make every effort prior to a critical incident to understand the issues and to protect the rights of all involved parties throughout the cycle of conflict.” [2] The Framework includes a number of significant structural reforms, including the establishment of an Aboriginal Relations Team and calling for the deployment of a Critical Incident Mediator in the event of a confrontation. It is not clear, however, how well the new direction signaled by this Framework has been institutionalized and acculturated within the OPP and its many structures and large force of officers. Given that confrontations continue to take place over land and resources, there is an urgent need for an independent evaluation of this framework and its implementation.
Policing for human rights
Police have a duty to ensure that protests do not lead to injury or destruction of property. Police also have an obligation to protect the right of individuals to protest and to ensure that protestors are safe from harassment and intimidation. In carrying out these duties, police officers must be subject to basic codes of professional conduct including the internationally recognized principle that force is to be used only as a last resort and only as strictly necessary to protect human lives and public order.
Any use of force by a police officer involves decisions made in a context of tense, often rapidly unfolding and sometimes confusing or frightening situations. The decision will also be informed by other contexts including the officer’s own assumptions about the situation he or she faces, the orders and briefings given by superiors, and the implicit message sent by the way in which police have been deployed. Safeguarding against excessive use of force requires effective training of individual officers in the appropriate use of force, as well as broader systemic safeguards within the police service and its governing institutions. Necessary safeguards include protocols to ensure that the number and function of any officers deployed to police protests corresponds to an accurate and unbiased assessment of any threat posed to public order and safety; effective, transparent and accessible measures to ensure that officers who break codes of conduct are held to account; and effective means to develop cross-cultural competency among officers and to weed out officers whose judgment is warped by racist assumptions.
Key recommendations
Amnesty International urges the Commissioner to:
- press the federal and provincial governments to develop a more coordinated approach to ensuring the protection of the rights of Indigenous peoples in Canada.
- call upon both levels of government to collaborate with Indigenous peoples in developing impartial, 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.
- call upon all levels of government to 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.
- underline the importance of bringing about an immediate remedy to the people of Stoney Point by restoring their lands and territories.
- stress that when legal uncertainty exists over the exercise of Indigenous rights, government officials have an obligation to seek a peaceful and just resolution of the dispute through an appropriate process in which the rights of Indigenous peoples can be given full consideration. Police should be deployed only as absolutely necessary and in accordance with the sole purpose of protecting public order and safety.
- call on the government of Ontario should collaborate with Indigenous peoples to carry out an independent evaluation to determine the effectiveness of the OPP Framework for Police Preparedness for Aboriginal Critical Incidents as a means to minimize the risk of escalation and ensure respect for and protection of the rights of Indigenous protestors.
- Encourage expansion of civilian oversight of police in Ontario, including independent investigation of all allegations of police wrongdoing. Particular attention should be paid to ensuring that such accountability mechanisms are well-known and accessible to Indigenous communities.
Notes:
[1] This is a summary of a briefing titled Indigenous Peoples, Land Rights and the Justice System: Making Human Rights A Priority. Amnesty International’s Submissions to Part II of the Ipperwash Inquiry. July 28, 2006. The briefing is available online at www.amnesty.ca. For additional background information, please see Amnesty International, Canada: Why there must be a public inquiry into the police killing of Dudley George, AI Index: AMR 20/002/2003, September 4, 2003.
[2] OPP Framework for Police Preparedness for Aboriginal Critical Incidents, Submitted to the Ipperwash Inquiry at 2.
Posted: 23 August 2006