SO WHO CARES - THE OTHER INCONVENIENT TRUTH - TRADE TRUTHS
1613-2013 Two Row Wampum Trade Agreement : Sovereign Nation States : Since 1613
The Following Is Not "Freeman" Inspired - Rather, Originating From Historical Facts
The Following Is Not "Freeman" Inspired - Rather, Originating From Historical Facts
CSSP PARAMOUNTCY GOVERNANCE RULES OF ORDER IN THE GLOBAL NETWORK
CENTURY XXII ECONOMICS
Published By
RALPH CHARLES GOODWIN : SHQWI'QWAL YUXWULETUN
1.250.709.1809
OIPII INTELLIGENCE : GLOBAL LOGISTICS
CSSP UN CHARTER COMPLAINTS
"IACHR LRW 2009 : Although Canada is not a State Party, the Inter-American Commission has ruled that the American Declaration must be interpreted in light of developments in the corpus juris gentium of international human rights law, including the IAHRS and specifically, the American Convention and jurisprudence of the Inter-American Court.10 The Inter-American Commission has described the American Convention as representing ―an authoritative expression of the fundamental principles set forth in the American Declaration‖.
11
The obligation to provide preferential treatment and the special duty of protection for the rights and freedoms of Indigenous peoples is well established in the IAHRS. The concept emerged in response to the persistent adverse consequences of colonization and the colonial practices of many States, including Canada: practices that violated the rights of the colonized to equality and non-discrimination.51 As the jurisprudence of the IAHRS recognizes, States must effectively redress the resulting conditions that impede or prevent the full and effective participation of Indigenous peoples in the exercise of all of their rights, including political and other rights within domestic political systems.52 In Yatama, the Inter-American Court focused on the need to reduce or eliminate real barriers to the effective and full exercise of political rights on an equal and non-discriminatory footing.53 This was also the basis of the Court‘s decision regarding effective protection given the particular conditions and special vulnerability of Indigenous peoples in Sawhoyamaxa v. Paraguay.54 Similar analysis motivated the Inter-American Commission‘s decisions to affirm Indigenous peoples‘ rights to property and land ownership in the cases of Dann and Maya Indigenous Communities.55 ...
Discrimination
1. Colonial Seizure of Hul’qumi’num Lands and Resources
53. Canada has conceded that the ―historic taking up‖ and land grant in the 1880s occurred without the Hul‘qumi‘num people‘s agreement or compensation. Canada maintains that this ―taking up‖ was ―justifiable as the grant was awarded subject to established law... ‖.66 The laws to which Canada refers were not ―established‖. They were extra-legal measures unilaterally imposed for the purpose of appropriating Indigenous lands and resources to enrich colonial settlers. The rights of the colonial settlers who received portions of Hul‘qumi‘num land and resources through grant or purchase were and are protected by Canadian law. The rights of the Hul‘qumi‘num to the lands and resources that were indisputably theirs, were not recognized or protected at seizure and are not either recognized or protected today.
54. British claims to the right of seizure began with the Cabot Charter of 1496, when King Henry VII of England purported to authorize the taking of all lands yet to be discovered that belonged to non-Christian peoples.67 By contrast, the Royal Proclamation, 1763,68 which was affirmed by Canada‘s Constitution Act, 1982,69 recognized that land in western North America that had not been ceded by or purchased from the ―Indians‖ still belonged to them. However, in 1849, contrary to the Royal Proclamation, the Oregon Treaty, to which the HTG were not a party, purported to attribute all territory north of the 49th parallel to Britain.70 In 1849, the colony of Vancouver Island was established by a statute of Britain‘s Parliament71, and in 1854 Governor Douglas directed surveyors to mark out ―Indian Reserves‖.72 In 1858, the Governor of British Columbia proclaimed the reception of English law.73 At that time, title to land in England was based on use and occupation.74
Although lands in the new colony of Vancouver Island— including those of the Hul‘qumi‘num—were granted to non-Indigenous settlers on the basis of use and occupation for as little as a year, colonial officials did not recognize Hul‘qumi‘num rights to the land and resource they had used and occupied for thousands of years ...
83. Contrary to Canada‘s submission, the historic land grant was not done in accordance with ―established law‖.135 Rather, the seizure was effected by force and justified on the basis that as ―Indians‖, the Hul‘qumi‘num did not have the ‗right‘ to continued occupation, use and ownership of their own lands.136 There were no laws legitimizing the forcible and uncompensated seizure of lands and resources belonging to another people, just as there are none today. While Canada relies on the unsubstantiated defence of ―nation building‖, that claim is challenged by the inclusion of additional land and resources in the grant far in excess of the requirements for the railway. Furthermore, when the E&N Railway seized reserve land outside the original grant, the Hul‘qumi‘num were not included in negotiations for compensation and payments were made to Canada‘s Department of Indian Affairs. The Department delivered only part of these assets to the benefit of the Hul‘qumi‘num.
84. The historic land grant also exceeded what the English common law provided for private ownership. The grant included rights to foreshore and mineral deposits, which prevented the Hul‘qumi‘num from accessing traditional resources comparable to those protected by easements and rights of profit á prendre for non-Indigenous people under English law. Another protection extended to non-Indigenous settlers was the grant of title based on occupancy and use.
124 Ibid at para 50.
125 Ibid at para 67.
126 HTG Observations, supra note 1 at para 147.
127 Submission of Canada, supra note 3 at paras 263-264.
128 Ibid.
V. ANALYSIS OF VIOLATIONS OF ARTICLE II EQUALITY RIGHTS
A. Unequal and Discriminatory Protection and Treatment
74. Canada has violated the equality rights of the Hul‘qumi‘num people through omission and commission. Its unequal and discriminatory treatment of their property and judicial protection rights is not only the ―result‖ of discrimination,126 it constitutes a violation of the right to equality in and of itself.
75. There are two components of Canada‘s violation of Article II. The first is the lack of equal protection of rights. The second is the failure to provide special and preferential treatment to the Hul‘qumi‘num, as a historically disadvantaged group, necessary to enable them to enjoy protected rights on an equal footing with people not similarly disadvantaged.
1. Unequal Protection of Property Rights and Judicial Protection
76. The first aspect of Canada‘s discriminatory conduct is its failure to accord the same (i.e. equal), or indeed any, degree of recognition and effective legal protection of the Hul‘qumi‘num property rights arising from their own land tenure system. The lack of protection contrasts with Canada‘s preferential and effective protection of the rights of non-Indigenous individuals to property within Hul‘qumi‘num ancestral lands. Canada suggests that the HTG seeks the same treatment as accorded non-Indigenous property rights claimants.127 However, the HTG is seeking the same degree of protection, that is, the effective and equal protection of their right to property and to judicial protection.
77. The HTG‘s claim that Canada has failed to extend ―the same degree of protection‖128 to its property rights is amply demonstrated by the historic seizure and by Canada‘s post-seizure treatment of the Hul‘qumi‘num‘s claims to the seized lands, which discriminatory treatment continues. In appropriating the territories traditionally used and occupied by the Hul‘qumi‘num, Canada ignored their Indigenous land tenure system and then failed to accord to the Hul‘qumi‘num the same land rights under English common law as were extended to the non-Indigenous colonial settlers. This failure to extend equal and effective recognition and protection to HTG property rights has continued to the present date. Canada continues to maintain that 24
because the Hul‘qumi‘num land claims have not been ‗established‘ or ‗clarified‘ under the system of land ownership laws used to grant ownership of Hul‘qumi‘num lands to others, the property rights of the Hul‘qumi‘num do not yet have constitutional protection. This argument is advanced in the face of Canada‘s admissions: to forcibly seizing the subject lands, ―for…a railway line and… future development‖;129 and that the Coast Salish people were occupying and using these lands and resources for their economic, social and cultural development,130 which included, ―traditional practices of hunting, gathering, ceremonial and spiritual practices.‖131 Canada further admits that the seized land then passed into private ownership protected by ―the land registry system used for non-Aboriginal title.‖132 Canada does not deny that the sale and resale and the development of the Hul‘qumi‘num‘s traditionally owned lands and resources did and continues to generate tremendous wealth for the corporations and individuals who obtained ownership post-seizure. The consequent poverty and inequality that impaired the Hul‘qumi‘num‘s capacity to either protect and develop their own culture or equally participate and benefit from the non-indigenous culture, has never been adequately remedied and persists to the present.
129 Ibid, Executive Summary at p 1.
130 Ibid.
131 Ibid.
132 Ibid at para 70.
133 Ibid, at para 264.
134 Over 25 years ago, the Supreme Court of Canada recognized the ―adverse effect discrimination‖ framework of analysis in Ontario Human Rights Commission v Simpsons-Sears, [1985] 2 SCR 536.
78. The foregoing analysis applies to Canada‘s unequal and discriminatory treatment of the Hul‘qumi‘num people‘s right to judicial protection (Article XVIII). Through the historic direct and then indirect forms of discrimination, the Hul‘qumi‘num have been denied access to a simple, effective process to remedy the lack of legal protection of their property rights on an equal basis, as required by the American Declaration.
2. Failure to Extend Special and Preferential Treatment
79. The second aspect of Canada‘s discriminatory conduct is its failure to fulfill the modern international Indigenous law requirement of extending the special or preferential treatment necessary to enable the Hul‘qumi‘num to enjoy protected rights on an equal footing with other people in Canada. Canada‗s failure to remedy the historic wrongs and consequential disadvantages of the present situation violates obligations established by the IAHRS and under United Nations instruments. As Canada appears to acknowledge,133 States have substantive corrective obligations under the equality rights rubric towards groups (including Indigenous peoples) that have experienced historic disadvantage and discrimination. The scope of these obligations extends beyond de jure or formal equality and encompasses positive and affirmative measures that address discrimination in effect (i.e indirect discrimination or ―adverse effect discrimination‖134), and discrimination in fact or substance (de facto discrimination). States must take measures to effectively ameliorate the current conditions and systemic barriers that impede a group‘s full and effective exercise of other fundamental rights and freedoms without discrimination. 25
80. Canada has failed to ensure this second measure of equality protection as well, and this failure is ongoing. As such, the violations are both continuing and with continuing effects.
B. Application of Law to Facts
1. History of Direct Discrimination and Formal Inequality
81. Although the roots of modern equality rights law in Canada can be traced to the pre-contact British traditions of equality before the law and the monarch‘s duty to protect the governed, these rights were not extended to the Hul‘qumi‘num. The Indigenous land tenure systems for regulating social relations and land use was, and is not acknowledged, much less protected. No treaty was ever concluded with the Hul‘qumi‘num and in addition to the forcible seizure of their traditionally owned and occupied lands and resources, the Hul‘qumi‘num and other Indigenous people were: (a) denied status as persons; (b) subjected to an assimilation policy that stripped them of significant civil, political, cultural, religious and social rights and forced their children to attend residential schools; (c) prohibited from retaining lawyers to defend their rights; and (d) excluded from access to political and other decision-making systems that protected in-migrating settlers.
82. The HTG‘s Petition was filed in response to systematic and sustained direct discrimination and the denial of even de jure equal treatment and protection to the Hul‘qumi‘num from the time of contact to the present. The emblem of this pattern of conduct was the uncompensated seizure of most of the lands and resources traditionally owned and occupied by the Hul‘qumi‘num.
83. Contrary to Canada‘s submission, the historic land grant was not done in accordance with ―established law‖.135 Rather, the seizure was effected by force and justified on the basis that as ―Indians‖, the Hul‘qumi‘num did not have the ‗right‘ to continued occupation, use and ownership of their own lands.136 There were no laws legitimizing the forcible and uncompensated seizure of lands and resources belonging to another people, just as there are none today. While Canada relies on the unsubstantiated defence of ―nation building‖, that claim is challenged by the inclusion of additional land and resources in the grant far in excess of the requirements for the railway. Furthermore, when the E&N Railway seized reserve land outside the original grant, the Hul‘qumi‘num were not included in negotiations for compensation and payments were made to Canada‘s Department of Indian Affairs. The Department delivered only part of these assets to the benefit of the Hul‘qumi‘num.
135 Submission of Canada, supra note 3 at para 308.
136 Presumably, the underlying assumption for this was similar to that articulated in Prime Minister Stephen Harper‘s June 2008 statement of apology regarding residential schools, namely, that ―[t]hese objectives were based on the assumption that aboriginal cultures...were inferior and unequal": Apology, supra note 95.
84. The historic land grant also exceeded what the English common law provided for private ownership. The grant included rights to foreshore and mineral deposits, which prevented the Hul‘qumi‘num from accessing traditional resources comparable to those protected by easements and rights of profit á prendre for non-Indigenous people under English law. Another protection extended to non-Indigenous settlers was the grant of title based on occupancy and use. Ironically, 26
this was applied to non-Indigenous squatters after only a year of occupancy on Hul‘qumi‘num lands.
85. A second category of direct discrimination occurred after British Columbia became part of Canada, and continued into the 21st century, with a series of directly discriminatory laws including amendments of the Indian Act, the Canada Elections Act and the Canadian Human Rights Act. . These provisions severely restricted Indigenous peoples‘ effective enjoyment of many other rights, including economic, social and cultural opportunities available to non-Indigenous people. At the expense of the Hul‘qumi‘num, the riches of their lands and resources were exploited by the incoming colonial settlers and have formed the basis of wealth accumulation ever since.
2. Current Situation of Indirect Discrimination and Real Inequality (Structural Discrimination)
86. Turning to the present day, Canada‘s obligation to uphold the Hul‘qumi‘num peoples‘ right to equality before the law is based on domestic and international law. Canada‘s Constitution affirms the principles of equality and the rule of law, as do the international treaties and accords to which Canada is a party. The principle of equality is jus cogens. Substantive equality is the linchpin of the modern international equality law framework and the principle upon which meaningful implementation of equality rights depends.
87. Canada‘s continuing failure to provide any degree of protection for Hul‘qumi‘num property rights violates the Article II guarantee in the American Declaration. Specifically, Canada has failed to meet the standards defined by the IAHRS with regard to similarly situated Indigenous peoples in other countries in the hemisphere. Canada has failed to recognize and redress the disproportionately adverse effects for the Hul‘qumi‘num caused by the application of Canadian law to protect those holding title to HTG lands under ―the land registry system used for non-Aboriginal title‖ in preference to the property rights of the HTG.
88. The preference in Canada‘s property law system for the protection of the property rights of third party property holders constitutes indirect discrimination and a violation of the Hul‘qumi‘num‘s substantive equality rights. Similarly, the failure to provide effective mechanisms to address this fundamental inequity, with its significantly adverse effects on the Hul‘qumi‘num, is a further violation of Article II. The violations of Articles XXIII and XVIII, through the failure to respect those rights in accordance with the equality principle, represent ongoing violations of Article II.
89. Canada‘s application of facially neutral property laws that favour the interests of third party purchasers for value, has had and continues to have disproportionately adverse and discriminatory effects on the Hul‘qumi‘num. Applying the CERD formulation of racial discrimination,137 this preference or distinction, exclusion or restriction has the effect of nullifying or impairing the Hul‘qumi‘num people‘s enjoyment and exercise of their property rights and access to judicial protection on an equal footing with others.
137 Appendix A, No 7. 27
90. The result of this preference is that a different and lesser degree of legal protection is being provided to the Hul‘qumi‘num as compared to other groups. As a result, the Hul‘qumi‘num are prevented from effectively enjoying the same economic, social, political and cultural rights and opportunities as others. The situation is one where serious inequality is being created and maintained through the application of an apparently neutral law. Canada is thus ignoring the requirement to eliminate indirect discrimination and its special duty of protection and preferential treatment that is owed in these circumstances.
C. Canada’s Ratione Temporis Defence
91. Canada‘s major defence against the HTG‘s equality claim is that historic wrongs committed against the Hul‘qumi‘num people cannot be considered in these proceedings. Canada argues that not only are the historic facts beyond the Inter-American Commission‘s competence,138 all allegations of violations that ―flow from‖ that historic ―taking up‖ of land are also excluded from the proceedings.139 Canada claims that because the Inter-American Commission‘s competence ratione temporis is limited to the facts that took place after Canada‘s obligations under the American Declaration were in force, allegations directly related to the E&N Railway land grant or subsequent land transactions flowing from that historic grant are not ―properly before the Inter-American Commission.140 Canada also argues that the historic taking up cannot be seen as a ―continuing violation‖ or as a ―violation with continuing effects‖.141
138 Submission of Canada, supra note 3 at para 96.
139 Ibid Executive Summary at 2.
140 Ibid at para 96.
141 Ibid at para 103.
142 Von Maltzan v Germany (2005), ECtHR (Grand Chamber), No 71916/01 [Von Maltzan]; Malhous v The Czech Republic (2000), ECtHR (Grand Chamber), No 33071/96 [Malhous].
92. Canada‘s failure to comply with the required standard of equality protection is not only historic, but also ongoing and continues to date. As such, the violations of Article II are both continuing, and with continuing effects. As elaborated below, Canada‘s limitations argument is not supported by the decisions cited. Moreover, Canada‘s position that modern human rights instruments without explicit text to this effect do not seek to remedy historic wrongs,1 is out of step with the international consensus and the IAHRS‘s direction. Such an interpretation would render nugatory the entire sytem of ensuring the equal and non-discriminatory enjoyment of protected rights by all.
93. The decisions cited can be distringuished on the bases that none involved the forcible and uncompensated seizure by colonizers of lands belonging to others and none involved collective rights. Those factors alone make their ratios inapplicable to the instant petition.
94. Canada‘s submissions also misconstrue the case law by suggesting that the cited decisions of the Committee and ECtHR stand for the proposition that deprivations of property rights are instantaneous acts that do not produce a ―continuing situation‖. While tribunals have undoubtedly treated expropriation as an instantaneous act, without continuing effects,142 the cited decisions do not preclude a contrary finding in different circumstances. Indeed Von Maltzan v. Germany is distinguishable in any event because the Court lacked competence ratione personae 28
and referred to that possibility.143 The same is true of Malhous v. The Czech Republic, where although the original seizure of property was found to be time barred, the Court was competent ratione temporis to deal with the associated proceedings that commenced after entry into force of the Convention.144 This was the result even though the complainant‘s claim ―flowed from‖ the historic taking of his father‘s land.
143 The Court in Von Maltzan held that because the expropriations were committed by Soviet occupying forces, it could not impute liability, including for a continuing violation, to the FRG (even as a successor to the GDR): Von Maltzan, supra note 142 at paras 81-83.
144 Malhous, supra note 142 at 16.
145 UN Human Rights Committee, Armand Anton v Algeria, Communication No 1424/2005, UNHRCOR, 88th Sess, UN Doc CCPR/C/88/D/1424/2005, (2006) [Anton]; UN Human Rights Committee, E and AK v Hungary, UNHRCOR, 50th Sess, UN Doc CCPR/C/50/D/520/1992 (1994).
146 Anton, supra note 145 at para 7.
147 Kuric and Others v Slovenia, ECtHR (Grand Chamber) No 26828/06 (2010) [Kuric] at para 304.
148 See Indigenous People‘s Rights over Ancestral Lands Report, supra note 65 at para 49.
95. If the rule under the Optional Protocol of the ICCPR is that a continuing violation by a state party can confirm a previous violation (even though a lack of compensation under the Optional Protocol has not been found to constitute an affirmation),145 continuing violations can still be found to arise. In fact, pursuant to the reasoning in Anton v. Algeria, the Committee has jurisdiction if the dispute arises after entry into force, even if the disputed facts or situation arose at an earlier date or if there is a modification of a situation created earlier.146 On either analysis, the Inter-American Commission has jurisdiction in the instant case: because measures taken by Canada prior to 1990 continue to produce effects which, in themselves, constitute a violation of rights in the American Declaration; or, alternatively, acts taken since 1990 constitute a modification of the situation created earlier.
96. Decisions of the Committee/ECtHR also clearly establish that adjudicative bodies may consider historic facts, and facts prior to ratification of the instrument at issue, inasmuch as they could be considered to have created a continuing situation extending beyond that date or may be relevant for the understanding of facts occurring after that date. The ECtHR has taken this position in Slovenia: 147
[…]It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring after that date[…]
97. This judgment contradicts Canada‘s position that the IAHRC cannot consider the facts reviewed in the HTG‘s Petition or this amicus brief, including the ―taking up‖ of the land and subsequent transactions, or any of the historical facts that have led to the Hul‘qumi‘num‘s present disadvantaged position.
98. Indeed, the ―adverse effect‖ and indirect discrimination analysis, as well as the substantive equality framework does not make sense unless there is regard for relevant historical and contextual facts that result in adverse effects arising from the application of facially neutral policies.148 The ineluctable nature of this conclusion is demonstrated in the ECtHR decision 30
Appendix A
Equality Provisions in International and Canadian Instruments
1. Charter of the Organization of American States:
Preamble: All men are born free and equal, in dignity and in rights … and should conduct themselves as brothers to one another.
Article 3(l): The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.
2. American Declaration on the Rights and Duties of Man:
Preamble: All men are born free and equal, in dignity and in rights … and should conduct themselves as brothers to one another.
Article II: [a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed, or any other factor.
3. American Convention on Human Rights (San José, 1969):
Obligation to Respect Rights - Article 1.1: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
Domestic Legal Effects - Article 2: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
Right to Equal Protection - Article 24 : All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.
4. Charter of the United Nations, CTS 1945/7:
Article 1.2 The Purposes of the United Nations are: …To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
5. Universal Declaration of Human Rights, A.G. Res. 217A(III), U.N.Doc.A/810(1948): 31
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8: Everyone has a right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted him by the constitution or by law.
6. International Covenant on Civil and Political Rights [1976] R.T. Can. 47, UNTS vol. 999 p.171:
Article 2.1: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2.2: Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Article 3: Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
7. Convention on the Elimination of Racial Discrimination (CERD): 32
Article 1.1: In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Article 2.1: States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; […] (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; […]
Article 6: States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
8. United Nations Declaration on the Rights of Indigenous People, G.A. Res.61/205, 13 September 2007:
Preamble
Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,
Article 2
Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.
Article 24
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.
2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right. 33
Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Article 46.3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
9. Constitution Act, 1982 enacted by the Canada Act, 1982 (U.K.) 1982 c.11, Sched. B:
Preamble : Whereas Canada is founded upon the principles that recognize the supremacy of...the rule of law
10. Charter of Rights and Freedoms, Constitution Act, 1982 (Canada Act, 1982):
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added]
11. Part II of the Constitution Act, 1982:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. 34
Appendix B
Quality of Life Measurements for Indigenous People in Canada
B.1: Human Development and Economic Development
Although Canada consistently sits near the top of the United Nations Development Index, indigenous people living on Canadian reserves rank 68th and those living off reserve rank 36th. ―Half of all First Nations communities score in the lower range of the index compared with 3% of other Canadian communities. One First Nation appears in the top 100 Canadian communities, while 92 appear in the bottom 100.‖152
152 ―The Importance of Measuring First Nations Well-Being‖: http://www.ainc-inac.gc.ca/ai/mr/nr/s-d2004/02520abk-eng.asp
153 UNICEF, Canadian Supplement to the State of the World‘s Children, Aboriginal children‘s health: Leaving no child behind, 2009, p. 6. In fact, one in four children in First Nations communities, lives in poverty, a rate more than double that of Canadian children on average.
154 U.N. Human Rights Council Working Group on Universal Periodic Review, National Report of Canada, A/HRC/WG.6/4/CAN/1 (5 January 2009), para. 67
155 UNICEF, Canadian Supplement to the State of the World’s Children, Aboriginal children’s health: Leaving no child behind, 2009, p. 2: ―Statistics show that a range of socio-economic factors, such as poverty, lower education attainment and substandard housing, challenge the health of Aboriginal people. As a result, they experience higher infant mortality rates, lower child immunization rates, poorer nutritional status and endemic rates of obesity, diabetes and other chronic diseases. Aboriginal people also suffer higher rates of suicide, depression, substance abuse and fetal alcohol spectrum disorder, and their representation in the welfare and justice systems is generally higher than in the non-Aboriginal population.‖ http://www.unicef.ca/portal/Secure/Community/502/WCM/HELP/take_action/Advocacy/Leaving%20no%20child%20behind%2009.pdf (Accessed May 16, 2011).
156 Paul Webster, Canadian Aboriginal people’s health and the Kelowna deal, July 2006, The Lancet, vol.368, Issue 9532, 275-6.
157 Indian and Northern Affairs Canada website, ―Aboriginal Health‖ at http://www.ainc-inac.gc.ca/ai/mr/is/abhl-eng.asp (last accessed, May 26, 2011).
These low Development Index rankings reflect other disturbing statistics. For example, the income of indigenous males is approximately half that of non-indigenous Canadian males and 25% of children in indigenous communities live in poverty, which is more than double that of non-indigenous children on average.153 Moreover, as an indicator of the broader social concerns on many reserves (such as poverty, poor housing conditions, substance abuse and exposure to family violence), in 2006-2007, a disproportionately high number of First Nations children were in government sponsored care (8,282).154
B.2: The Relationship between Poverty and Poor Health
The link between socio-economic factors such as poverty and health has been clearly drawn155, with the health of indigenous peoples registering as significantly worse than that of the general Canadian population. Infant mortality is almost twenty percent higher and the incidence of diseases such as tuberculosis is much more prevalent.156 Tuberculosis rates in First Nations communities living on-reserve continue to be 8 to 10 times higher than the Canadian average. 157 As an indicator of health, Health Canada reports a 6.4 year gap in life expectancy between ‗Registered Indians‘ and other Canadians. These conditions are recorded in the December 2004 35
report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people to the United Nations Human Rights Council.158
158 INDIGENOUS ISSUES, Human rights and Indigenous issues Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, Rodolfo Stavenhagen Addendum MISSION TO CANADA, E/CN.4/2005/88/Add.3 2 December 2004 at 2.
159 Indian and Northern Affairs Canada, Supra note 6.
160 2004 report of UN Special Rapporteur, Supra note 7, at pp. 2 & 3 and paras. 39, 40, 61, 82, 90, 102,& 106.
161 Erasmus, Dussault, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: Report on Aboriginal People and Criminal Justice in Canada, Minister of Supply and Services Canada, 1996.
162 Janice Tibbetts, ―Watchdog slams prison system‖, The [Montreal]Gazette (17 Oct., 2006) A12; Rémi Savard, ―Les peuples américains et le système judicaire canadien : Spéléologie d‘un trou de mémoire‖ (2002) Can. J. L. & Soc. 123.
163 2004 report of UN Special Rapporteur, supra note 7 at paras 53 & 55.
Another alarming indicator is the overall suicide rate among indigenous youth, which is five to seven times higher than the national average159, and suicide is the leading cause of death among aboriginal youth and children.160
B.3: Rates of Incarceration
Another symbol of the consequences of Canada‘s treatment of indigenous peoples is the high and disproportionate rates of incarceration. The Royal Commission on Aboriginal Peoples reported that, despite being about two percent of the population, ten percent of inmates in federal prisons for men and thirteen percent in federal prisons for women were aboriginal.161 Incarceration rates in federal prisons increased 22% between the end of the Royal Commission in 1996 and 2004.162 The rate of incarceration of indigenous peoples is four times the national average.163 ... "
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"IACHR LRW 2009 : Although Canada is not a State Party, the Inter-American Commission has ruled that the American Declaration must be interpreted in light of developments in the corpus juris gentium of international human rights law, including the IAHRS and specifically, the American Convention and jurisprudence of the Inter-American Court.10 The Inter-American Commission has described the American Convention as representing ―an authoritative expression of the fundamental principles set forth in the American Declaration‖.
11
The obligation to provide preferential treatment and the special duty of protection for the rights and freedoms of Indigenous peoples is well established in the IAHRS. The concept emerged in response to the persistent adverse consequences of colonization and the colonial practices of many States, including Canada: practices that violated the rights of the colonized to equality and non-discrimination.51 As the jurisprudence of the IAHRS recognizes, States must effectively redress the resulting conditions that impede or prevent the full and effective participation of Indigenous peoples in the exercise of all of their rights, including political and other rights within domestic political systems.52 In Yatama, the Inter-American Court focused on the need to reduce or eliminate real barriers to the effective and full exercise of political rights on an equal and non-discriminatory footing.53 This was also the basis of the Court‘s decision regarding effective protection given the particular conditions and special vulnerability of Indigenous peoples in Sawhoyamaxa v. Paraguay.54 Similar analysis motivated the Inter-American Commission‘s decisions to affirm Indigenous peoples‘ rights to property and land ownership in the cases of Dann and Maya Indigenous Communities.55 ...
Discrimination
1. Colonial Seizure of Hul’qumi’num Lands and Resources
53. Canada has conceded that the ―historic taking up‖ and land grant in the 1880s occurred without the Hul‘qumi‘num people‘s agreement or compensation. Canada maintains that this ―taking up‖ was ―justifiable as the grant was awarded subject to established law... ‖.66 The laws to which Canada refers were not ―established‖. They were extra-legal measures unilaterally imposed for the purpose of appropriating Indigenous lands and resources to enrich colonial settlers. The rights of the colonial settlers who received portions of Hul‘qumi‘num land and resources through grant or purchase were and are protected by Canadian law. The rights of the Hul‘qumi‘num to the lands and resources that were indisputably theirs, were not recognized or protected at seizure and are not either recognized or protected today.
54. British claims to the right of seizure began with the Cabot Charter of 1496, when King Henry VII of England purported to authorize the taking of all lands yet to be discovered that belonged to non-Christian peoples.67 By contrast, the Royal Proclamation, 1763,68 which was affirmed by Canada‘s Constitution Act, 1982,69 recognized that land in western North America that had not been ceded by or purchased from the ―Indians‖ still belonged to them. However, in 1849, contrary to the Royal Proclamation, the Oregon Treaty, to which the HTG were not a party, purported to attribute all territory north of the 49th parallel to Britain.70 In 1849, the colony of Vancouver Island was established by a statute of Britain‘s Parliament71, and in 1854 Governor Douglas directed surveyors to mark out ―Indian Reserves‖.72 In 1858, the Governor of British Columbia proclaimed the reception of English law.73 At that time, title to land in England was based on use and occupation.74
Although lands in the new colony of Vancouver Island— including those of the Hul‘qumi‘num—were granted to non-Indigenous settlers on the basis of use and occupation for as little as a year, colonial officials did not recognize Hul‘qumi‘num rights to the land and resource they had used and occupied for thousands of years ...
83. Contrary to Canada‘s submission, the historic land grant was not done in accordance with ―established law‖.135 Rather, the seizure was effected by force and justified on the basis that as ―Indians‖, the Hul‘qumi‘num did not have the ‗right‘ to continued occupation, use and ownership of their own lands.136 There were no laws legitimizing the forcible and uncompensated seizure of lands and resources belonging to another people, just as there are none today. While Canada relies on the unsubstantiated defence of ―nation building‖, that claim is challenged by the inclusion of additional land and resources in the grant far in excess of the requirements for the railway. Furthermore, when the E&N Railway seized reserve land outside the original grant, the Hul‘qumi‘num were not included in negotiations for compensation and payments were made to Canada‘s Department of Indian Affairs. The Department delivered only part of these assets to the benefit of the Hul‘qumi‘num.
84. The historic land grant also exceeded what the English common law provided for private ownership. The grant included rights to foreshore and mineral deposits, which prevented the Hul‘qumi‘num from accessing traditional resources comparable to those protected by easements and rights of profit á prendre for non-Indigenous people under English law. Another protection extended to non-Indigenous settlers was the grant of title based on occupancy and use.
124 Ibid at para 50.
125 Ibid at para 67.
126 HTG Observations, supra note 1 at para 147.
127 Submission of Canada, supra note 3 at paras 263-264.
128 Ibid.
V. ANALYSIS OF VIOLATIONS OF ARTICLE II EQUALITY RIGHTS
A. Unequal and Discriminatory Protection and Treatment
74. Canada has violated the equality rights of the Hul‘qumi‘num people through omission and commission. Its unequal and discriminatory treatment of their property and judicial protection rights is not only the ―result‖ of discrimination,126 it constitutes a violation of the right to equality in and of itself.
75. There are two components of Canada‘s violation of Article II. The first is the lack of equal protection of rights. The second is the failure to provide special and preferential treatment to the Hul‘qumi‘num, as a historically disadvantaged group, necessary to enable them to enjoy protected rights on an equal footing with people not similarly disadvantaged.
1. Unequal Protection of Property Rights and Judicial Protection
76. The first aspect of Canada‘s discriminatory conduct is its failure to accord the same (i.e. equal), or indeed any, degree of recognition and effective legal protection of the Hul‘qumi‘num property rights arising from their own land tenure system. The lack of protection contrasts with Canada‘s preferential and effective protection of the rights of non-Indigenous individuals to property within Hul‘qumi‘num ancestral lands. Canada suggests that the HTG seeks the same treatment as accorded non-Indigenous property rights claimants.127 However, the HTG is seeking the same degree of protection, that is, the effective and equal protection of their right to property and to judicial protection.
77. The HTG‘s claim that Canada has failed to extend ―the same degree of protection‖128 to its property rights is amply demonstrated by the historic seizure and by Canada‘s post-seizure treatment of the Hul‘qumi‘num‘s claims to the seized lands, which discriminatory treatment continues. In appropriating the territories traditionally used and occupied by the Hul‘qumi‘num, Canada ignored their Indigenous land tenure system and then failed to accord to the Hul‘qumi‘num the same land rights under English common law as were extended to the non-Indigenous colonial settlers. This failure to extend equal and effective recognition and protection to HTG property rights has continued to the present date. Canada continues to maintain that 24
because the Hul‘qumi‘num land claims have not been ‗established‘ or ‗clarified‘ under the system of land ownership laws used to grant ownership of Hul‘qumi‘num lands to others, the property rights of the Hul‘qumi‘num do not yet have constitutional protection. This argument is advanced in the face of Canada‘s admissions: to forcibly seizing the subject lands, ―for…a railway line and… future development‖;129 and that the Coast Salish people were occupying and using these lands and resources for their economic, social and cultural development,130 which included, ―traditional practices of hunting, gathering, ceremonial and spiritual practices.‖131 Canada further admits that the seized land then passed into private ownership protected by ―the land registry system used for non-Aboriginal title.‖132 Canada does not deny that the sale and resale and the development of the Hul‘qumi‘num‘s traditionally owned lands and resources did and continues to generate tremendous wealth for the corporations and individuals who obtained ownership post-seizure. The consequent poverty and inequality that impaired the Hul‘qumi‘num‘s capacity to either protect and develop their own culture or equally participate and benefit from the non-indigenous culture, has never been adequately remedied and persists to the present.
129 Ibid, Executive Summary at p 1.
130 Ibid.
131 Ibid.
132 Ibid at para 70.
133 Ibid, at para 264.
134 Over 25 years ago, the Supreme Court of Canada recognized the ―adverse effect discrimination‖ framework of analysis in Ontario Human Rights Commission v Simpsons-Sears, [1985] 2 SCR 536.
78. The foregoing analysis applies to Canada‘s unequal and discriminatory treatment of the Hul‘qumi‘num people‘s right to judicial protection (Article XVIII). Through the historic direct and then indirect forms of discrimination, the Hul‘qumi‘num have been denied access to a simple, effective process to remedy the lack of legal protection of their property rights on an equal basis, as required by the American Declaration.
2. Failure to Extend Special and Preferential Treatment
79. The second aspect of Canada‘s discriminatory conduct is its failure to fulfill the modern international Indigenous law requirement of extending the special or preferential treatment necessary to enable the Hul‘qumi‘num to enjoy protected rights on an equal footing with other people in Canada. Canada‗s failure to remedy the historic wrongs and consequential disadvantages of the present situation violates obligations established by the IAHRS and under United Nations instruments. As Canada appears to acknowledge,133 States have substantive corrective obligations under the equality rights rubric towards groups (including Indigenous peoples) that have experienced historic disadvantage and discrimination. The scope of these obligations extends beyond de jure or formal equality and encompasses positive and affirmative measures that address discrimination in effect (i.e indirect discrimination or ―adverse effect discrimination‖134), and discrimination in fact or substance (de facto discrimination). States must take measures to effectively ameliorate the current conditions and systemic barriers that impede a group‘s full and effective exercise of other fundamental rights and freedoms without discrimination. 25
80. Canada has failed to ensure this second measure of equality protection as well, and this failure is ongoing. As such, the violations are both continuing and with continuing effects.
B. Application of Law to Facts
1. History of Direct Discrimination and Formal Inequality
81. Although the roots of modern equality rights law in Canada can be traced to the pre-contact British traditions of equality before the law and the monarch‘s duty to protect the governed, these rights were not extended to the Hul‘qumi‘num. The Indigenous land tenure systems for regulating social relations and land use was, and is not acknowledged, much less protected. No treaty was ever concluded with the Hul‘qumi‘num and in addition to the forcible seizure of their traditionally owned and occupied lands and resources, the Hul‘qumi‘num and other Indigenous people were: (a) denied status as persons; (b) subjected to an assimilation policy that stripped them of significant civil, political, cultural, religious and social rights and forced their children to attend residential schools; (c) prohibited from retaining lawyers to defend their rights; and (d) excluded from access to political and other decision-making systems that protected in-migrating settlers.
82. The HTG‘s Petition was filed in response to systematic and sustained direct discrimination and the denial of even de jure equal treatment and protection to the Hul‘qumi‘num from the time of contact to the present. The emblem of this pattern of conduct was the uncompensated seizure of most of the lands and resources traditionally owned and occupied by the Hul‘qumi‘num.
83. Contrary to Canada‘s submission, the historic land grant was not done in accordance with ―established law‖.135 Rather, the seizure was effected by force and justified on the basis that as ―Indians‖, the Hul‘qumi‘num did not have the ‗right‘ to continued occupation, use and ownership of their own lands.136 There were no laws legitimizing the forcible and uncompensated seizure of lands and resources belonging to another people, just as there are none today. While Canada relies on the unsubstantiated defence of ―nation building‖, that claim is challenged by the inclusion of additional land and resources in the grant far in excess of the requirements for the railway. Furthermore, when the E&N Railway seized reserve land outside the original grant, the Hul‘qumi‘num were not included in negotiations for compensation and payments were made to Canada‘s Department of Indian Affairs. The Department delivered only part of these assets to the benefit of the Hul‘qumi‘num.
135 Submission of Canada, supra note 3 at para 308.
136 Presumably, the underlying assumption for this was similar to that articulated in Prime Minister Stephen Harper‘s June 2008 statement of apology regarding residential schools, namely, that ―[t]hese objectives were based on the assumption that aboriginal cultures...were inferior and unequal": Apology, supra note 95.
84. The historic land grant also exceeded what the English common law provided for private ownership. The grant included rights to foreshore and mineral deposits, which prevented the Hul‘qumi‘num from accessing traditional resources comparable to those protected by easements and rights of profit á prendre for non-Indigenous people under English law. Another protection extended to non-Indigenous settlers was the grant of title based on occupancy and use. Ironically, 26
this was applied to non-Indigenous squatters after only a year of occupancy on Hul‘qumi‘num lands.
85. A second category of direct discrimination occurred after British Columbia became part of Canada, and continued into the 21st century, with a series of directly discriminatory laws including amendments of the Indian Act, the Canada Elections Act and the Canadian Human Rights Act. . These provisions severely restricted Indigenous peoples‘ effective enjoyment of many other rights, including economic, social and cultural opportunities available to non-Indigenous people. At the expense of the Hul‘qumi‘num, the riches of their lands and resources were exploited by the incoming colonial settlers and have formed the basis of wealth accumulation ever since.
2. Current Situation of Indirect Discrimination and Real Inequality (Structural Discrimination)
86. Turning to the present day, Canada‘s obligation to uphold the Hul‘qumi‘num peoples‘ right to equality before the law is based on domestic and international law. Canada‘s Constitution affirms the principles of equality and the rule of law, as do the international treaties and accords to which Canada is a party. The principle of equality is jus cogens. Substantive equality is the linchpin of the modern international equality law framework and the principle upon which meaningful implementation of equality rights depends.
87. Canada‘s continuing failure to provide any degree of protection for Hul‘qumi‘num property rights violates the Article II guarantee in the American Declaration. Specifically, Canada has failed to meet the standards defined by the IAHRS with regard to similarly situated Indigenous peoples in other countries in the hemisphere. Canada has failed to recognize and redress the disproportionately adverse effects for the Hul‘qumi‘num caused by the application of Canadian law to protect those holding title to HTG lands under ―the land registry system used for non-Aboriginal title‖ in preference to the property rights of the HTG.
88. The preference in Canada‘s property law system for the protection of the property rights of third party property holders constitutes indirect discrimination and a violation of the Hul‘qumi‘num‘s substantive equality rights. Similarly, the failure to provide effective mechanisms to address this fundamental inequity, with its significantly adverse effects on the Hul‘qumi‘num, is a further violation of Article II. The violations of Articles XXIII and XVIII, through the failure to respect those rights in accordance with the equality principle, represent ongoing violations of Article II.
89. Canada‘s application of facially neutral property laws that favour the interests of third party purchasers for value, has had and continues to have disproportionately adverse and discriminatory effects on the Hul‘qumi‘num. Applying the CERD formulation of racial discrimination,137 this preference or distinction, exclusion or restriction has the effect of nullifying or impairing the Hul‘qumi‘num people‘s enjoyment and exercise of their property rights and access to judicial protection on an equal footing with others.
137 Appendix A, No 7. 27
90. The result of this preference is that a different and lesser degree of legal protection is being provided to the Hul‘qumi‘num as compared to other groups. As a result, the Hul‘qumi‘num are prevented from effectively enjoying the same economic, social, political and cultural rights and opportunities as others. The situation is one where serious inequality is being created and maintained through the application of an apparently neutral law. Canada is thus ignoring the requirement to eliminate indirect discrimination and its special duty of protection and preferential treatment that is owed in these circumstances.
C. Canada’s Ratione Temporis Defence
91. Canada‘s major defence against the HTG‘s equality claim is that historic wrongs committed against the Hul‘qumi‘num people cannot be considered in these proceedings. Canada argues that not only are the historic facts beyond the Inter-American Commission‘s competence,138 all allegations of violations that ―flow from‖ that historic ―taking up‖ of land are also excluded from the proceedings.139 Canada claims that because the Inter-American Commission‘s competence ratione temporis is limited to the facts that took place after Canada‘s obligations under the American Declaration were in force, allegations directly related to the E&N Railway land grant or subsequent land transactions flowing from that historic grant are not ―properly before the Inter-American Commission.140 Canada also argues that the historic taking up cannot be seen as a ―continuing violation‖ or as a ―violation with continuing effects‖.141
138 Submission of Canada, supra note 3 at para 96.
139 Ibid Executive Summary at 2.
140 Ibid at para 96.
141 Ibid at para 103.
142 Von Maltzan v Germany (2005), ECtHR (Grand Chamber), No 71916/01 [Von Maltzan]; Malhous v The Czech Republic (2000), ECtHR (Grand Chamber), No 33071/96 [Malhous].
92. Canada‘s failure to comply with the required standard of equality protection is not only historic, but also ongoing and continues to date. As such, the violations of Article II are both continuing, and with continuing effects. As elaborated below, Canada‘s limitations argument is not supported by the decisions cited. Moreover, Canada‘s position that modern human rights instruments without explicit text to this effect do not seek to remedy historic wrongs,1 is out of step with the international consensus and the IAHRS‘s direction. Such an interpretation would render nugatory the entire sytem of ensuring the equal and non-discriminatory enjoyment of protected rights by all.
93. The decisions cited can be distringuished on the bases that none involved the forcible and uncompensated seizure by colonizers of lands belonging to others and none involved collective rights. Those factors alone make their ratios inapplicable to the instant petition.
94. Canada‘s submissions also misconstrue the case law by suggesting that the cited decisions of the Committee and ECtHR stand for the proposition that deprivations of property rights are instantaneous acts that do not produce a ―continuing situation‖. While tribunals have undoubtedly treated expropriation as an instantaneous act, without continuing effects,142 the cited decisions do not preclude a contrary finding in different circumstances. Indeed Von Maltzan v. Germany is distinguishable in any event because the Court lacked competence ratione personae 28
and referred to that possibility.143 The same is true of Malhous v. The Czech Republic, where although the original seizure of property was found to be time barred, the Court was competent ratione temporis to deal with the associated proceedings that commenced after entry into force of the Convention.144 This was the result even though the complainant‘s claim ―flowed from‖ the historic taking of his father‘s land.
143 The Court in Von Maltzan held that because the expropriations were committed by Soviet occupying forces, it could not impute liability, including for a continuing violation, to the FRG (even as a successor to the GDR): Von Maltzan, supra note 142 at paras 81-83.
144 Malhous, supra note 142 at 16.
145 UN Human Rights Committee, Armand Anton v Algeria, Communication No 1424/2005, UNHRCOR, 88th Sess, UN Doc CCPR/C/88/D/1424/2005, (2006) [Anton]; UN Human Rights Committee, E and AK v Hungary, UNHRCOR, 50th Sess, UN Doc CCPR/C/50/D/520/1992 (1994).
146 Anton, supra note 145 at para 7.
147 Kuric and Others v Slovenia, ECtHR (Grand Chamber) No 26828/06 (2010) [Kuric] at para 304.
148 See Indigenous People‘s Rights over Ancestral Lands Report, supra note 65 at para 49.
95. If the rule under the Optional Protocol of the ICCPR is that a continuing violation by a state party can confirm a previous violation (even though a lack of compensation under the Optional Protocol has not been found to constitute an affirmation),145 continuing violations can still be found to arise. In fact, pursuant to the reasoning in Anton v. Algeria, the Committee has jurisdiction if the dispute arises after entry into force, even if the disputed facts or situation arose at an earlier date or if there is a modification of a situation created earlier.146 On either analysis, the Inter-American Commission has jurisdiction in the instant case: because measures taken by Canada prior to 1990 continue to produce effects which, in themselves, constitute a violation of rights in the American Declaration; or, alternatively, acts taken since 1990 constitute a modification of the situation created earlier.
96. Decisions of the Committee/ECtHR also clearly establish that adjudicative bodies may consider historic facts, and facts prior to ratification of the instrument at issue, inasmuch as they could be considered to have created a continuing situation extending beyond that date or may be relevant for the understanding of facts occurring after that date. The ECtHR has taken this position in Slovenia: 147
[…]It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring after that date[…]
97. This judgment contradicts Canada‘s position that the IAHRC cannot consider the facts reviewed in the HTG‘s Petition or this amicus brief, including the ―taking up‖ of the land and subsequent transactions, or any of the historical facts that have led to the Hul‘qumi‘num‘s present disadvantaged position.
98. Indeed, the ―adverse effect‖ and indirect discrimination analysis, as well as the substantive equality framework does not make sense unless there is regard for relevant historical and contextual facts that result in adverse effects arising from the application of facially neutral policies.148 The ineluctable nature of this conclusion is demonstrated in the ECtHR decision 30
Appendix A
Equality Provisions in International and Canadian Instruments
1. Charter of the Organization of American States:
Preamble: All men are born free and equal, in dignity and in rights … and should conduct themselves as brothers to one another.
Article 3(l): The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.
2. American Declaration on the Rights and Duties of Man:
Preamble: All men are born free and equal, in dignity and in rights … and should conduct themselves as brothers to one another.
Article II: [a]ll persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed, or any other factor.
3. American Convention on Human Rights (San José, 1969):
Obligation to Respect Rights - Article 1.1: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
Domestic Legal Effects - Article 2: Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.
Right to Equal Protection - Article 24 : All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.
4. Charter of the United Nations, CTS 1945/7:
Article 1.2 The Purposes of the United Nations are: …To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
5. Universal Declaration of Human Rights, A.G. Res. 217A(III), U.N.Doc.A/810(1948): 31
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8: Everyone has a right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted him by the constitution or by law.
6. International Covenant on Civil and Political Rights [1976] R.T. Can. 47, UNTS vol. 999 p.171:
Article 2.1: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2.2: Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Article 3: Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
7. Convention on the Elimination of Racial Discrimination (CERD): 32
Article 1.1: In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Article 2.1: States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; […] (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; […]
Article 6: States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
8. United Nations Declaration on the Rights of Indigenous People, G.A. Res.61/205, 13 September 2007:
Preamble
Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,
Article 2
Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.
Article 24
1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.
2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right. 33
Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Article 46.3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
9. Constitution Act, 1982 enacted by the Canada Act, 1982 (U.K.) 1982 c.11, Sched. B:
Preamble : Whereas Canada is founded upon the principles that recognize the supremacy of...the rule of law
10. Charter of Rights and Freedoms, Constitution Act, 1982 (Canada Act, 1982):
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [emphasis added]
11. Part II of the Constitution Act, 1982:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. 34
Appendix B
Quality of Life Measurements for Indigenous People in Canada
B.1: Human Development and Economic Development
Although Canada consistently sits near the top of the United Nations Development Index, indigenous people living on Canadian reserves rank 68th and those living off reserve rank 36th. ―Half of all First Nations communities score in the lower range of the index compared with 3% of other Canadian communities. One First Nation appears in the top 100 Canadian communities, while 92 appear in the bottom 100.‖152
152 ―The Importance of Measuring First Nations Well-Being‖: http://www.ainc-inac.gc.ca/ai/mr/nr/s-d2004/02520abk-eng.asp
153 UNICEF, Canadian Supplement to the State of the World‘s Children, Aboriginal children‘s health: Leaving no child behind, 2009, p. 6. In fact, one in four children in First Nations communities, lives in poverty, a rate more than double that of Canadian children on average.
154 U.N. Human Rights Council Working Group on Universal Periodic Review, National Report of Canada, A/HRC/WG.6/4/CAN/1 (5 January 2009), para. 67
155 UNICEF, Canadian Supplement to the State of the World’s Children, Aboriginal children’s health: Leaving no child behind, 2009, p. 2: ―Statistics show that a range of socio-economic factors, such as poverty, lower education attainment and substandard housing, challenge the health of Aboriginal people. As a result, they experience higher infant mortality rates, lower child immunization rates, poorer nutritional status and endemic rates of obesity, diabetes and other chronic diseases. Aboriginal people also suffer higher rates of suicide, depression, substance abuse and fetal alcohol spectrum disorder, and their representation in the welfare and justice systems is generally higher than in the non-Aboriginal population.‖ http://www.unicef.ca/portal/Secure/Community/502/WCM/HELP/take_action/Advocacy/Leaving%20no%20child%20behind%2009.pdf (Accessed May 16, 2011).
156 Paul Webster, Canadian Aboriginal people’s health and the Kelowna deal, July 2006, The Lancet, vol.368, Issue 9532, 275-6.
157 Indian and Northern Affairs Canada website, ―Aboriginal Health‖ at http://www.ainc-inac.gc.ca/ai/mr/is/abhl-eng.asp (last accessed, May 26, 2011).
These low Development Index rankings reflect other disturbing statistics. For example, the income of indigenous males is approximately half that of non-indigenous Canadian males and 25% of children in indigenous communities live in poverty, which is more than double that of non-indigenous children on average.153 Moreover, as an indicator of the broader social concerns on many reserves (such as poverty, poor housing conditions, substance abuse and exposure to family violence), in 2006-2007, a disproportionately high number of First Nations children were in government sponsored care (8,282).154
B.2: The Relationship between Poverty and Poor Health
The link between socio-economic factors such as poverty and health has been clearly drawn155, with the health of indigenous peoples registering as significantly worse than that of the general Canadian population. Infant mortality is almost twenty percent higher and the incidence of diseases such as tuberculosis is much more prevalent.156 Tuberculosis rates in First Nations communities living on-reserve continue to be 8 to 10 times higher than the Canadian average. 157 As an indicator of health, Health Canada reports a 6.4 year gap in life expectancy between ‗Registered Indians‘ and other Canadians. These conditions are recorded in the December 2004 35
report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people to the United Nations Human Rights Council.158
158 INDIGENOUS ISSUES, Human rights and Indigenous issues Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, Rodolfo Stavenhagen Addendum MISSION TO CANADA, E/CN.4/2005/88/Add.3 2 December 2004 at 2.
159 Indian and Northern Affairs Canada, Supra note 6.
160 2004 report of UN Special Rapporteur, Supra note 7, at pp. 2 & 3 and paras. 39, 40, 61, 82, 90, 102,& 106.
161 Erasmus, Dussault, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: Report on Aboriginal People and Criminal Justice in Canada, Minister of Supply and Services Canada, 1996.
162 Janice Tibbetts, ―Watchdog slams prison system‖, The [Montreal]Gazette (17 Oct., 2006) A12; Rémi Savard, ―Les peuples américains et le système judicaire canadien : Spéléologie d‘un trou de mémoire‖ (2002) Can. J. L. & Soc. 123.
163 2004 report of UN Special Rapporteur, supra note 7 at paras 53 & 55.
Another alarming indicator is the overall suicide rate among indigenous youth, which is five to seven times higher than the national average159, and suicide is the leading cause of death among aboriginal youth and children.160
B.3: Rates of Incarceration
Another symbol of the consequences of Canada‘s treatment of indigenous peoples is the high and disproportionate rates of incarceration. The Royal Commission on Aboriginal Peoples reported that, despite being about two percent of the population, ten percent of inmates in federal prisons for men and thirteen percent in federal prisons for women were aboriginal.161 Incarceration rates in federal prisons increased 22% between the end of the Royal Commission in 1996 and 2004.162 The rate of incarceration of indigenous peoples is four times the national average.163 ... "
