Presentation to James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples | Presentation

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Presentation to 

James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples 

10 October 2013

My comments are focused on past, continuing and present violations of the rights of First Nations people to equality and non-discrimination and the need for remedies that acknowledge the wrongful seizure of their lands and resources and return lands, resources and decision making powers.

Canada has failed and is failing to comply with domestic and international law obligations to ensure First Nations’ rights to equality before and under the law, to equal protection and equal benefit of the law without discrimination and access to effective remedies for past and present violations and denials of those rights.

My remarks today are restricted to three categories of historic, systemic and current discrimination and inequality:

1. The inequality and direct discrimination of the wrongful appropriation of First Nations lands and resources without consent or compensation;
2. The inequality and discrimination imposed by discriminatory laws and practices instituted by Canadian governments over a period of more than 150 years that denied First Nations people the right to exercise the economic, political, civil, and cultural rights and access to judicial remedies enjoyed by others;
3. Unequal and discriminatory current practices resulting in unequal access to food, water, housing, education, health care and justice.

Underlying all three categories of discrimination and enforced inequality runs the belief that First Nations people are not entitled to equal treatment or fair remedies.

I.          Discriminatory seizure of lands and appropriation of resources traditionally owned by First Nations peoples.

It is a fact that Canada seized lands and resources traditionally owned and occupied by First Nations peoples, without consent or compensation, for the benefit and enrichment of non-Indigenous colonial settlers. It is a fact that the settlers were given preferential treatment and First Nations people were not considered or treated as equals. It is a fact that they were excluded from protection of the laws in place at the time of seizure on the basis that, as savages, they were not entitled to the benefit of laws applicable to European. It is a fact that no recognition or accommodation was made, or has been made since, to the First Nations’ own laws and customs by which the occupation and use, stewardship and sharing of their lands and resources was protected and maintained.

First Nations’ rights to the lands and resources that were indisputably theirs, were not recognized or protected at seizure and are not either recognized or protected today.

Following seizure, Canada unilaterally created laws that secured the settlers ownership over the seized lands and prevented First Nations people from making successful claims either for the return of the lands or compensation. A system of registration of land ownership was legislated and the courts treated registration as the only way of definitively establishing rights to ownership, occupations, use or stewardship.

II.        Historic Discriminatory laws and practices

Over the course of the next hundred and fifty years First Nations people were subjected to further oppression through discriminatory laws created unilaterally by the settlers to secure and maintain their dominion over First Nations lands. Such laws denied legal personhood to First Nations people, denied the right to vote, criminalized cultural and religious practices, denied rights to family and education and cut off access to judicial remedies.

II.1      Denial of personhood

In 1876, the Indian Act defined a “person” as “an individual other than an Indian,” a provision that was not repealed until 1951.

II.2      Denial of right to vote

At Confederation, federal voting rights depended on provincial voting rights, which were based upon sex and land ownership. The dispossession of their property, effectively denied voting rights to First Nations.[1] In 1875, BC legislation stipulated that “no Chinaman or Indian” could vote in provincial elections.[2] In 1885, the Electoral Franchise Act extended the federal franchise to certain First Nations peoples amid fierce debate in the House of Commons that saw opponents arguing that First Nations people were incapable of civilization, and that extending the vote represented an encroachment on the rights of white men.[3] That act was repealed four years later in 1889.

In 1920, the Indian Act was amended to allow compulsory “enfranchisement”, making it possible for the Department of Indian Affairs to deprive people of “Indian status” without their consent.^[4]  In 1938, the Dominion Elections Act was revised, but continued to stipulate that race could form grounds for exclusion from federal voting rights.

Although Canada repealed the race-based exclusion from voting in 1948, it was not until 1960 that “Indians” could vote without losing their status or treaty rights when the Canada Elections Act was amended.^[5]

II.3      Denial of rights to culture and religion

The 1884 Indian Act amendment that outlawed Indigenous social and religious ceremonies^[6] and imposed imprisonment for “not more than six nor less than two months” was in force until 1951.

II.4      Denial of right to family and education

In 1876 Indian Act authorized the establishments of schools for Indians. 1894 amendments gave the Department of Indian Affairs authority to implement regulations for the mandatory attendance of First Nations children in residential schools.^[7] Many children living on reserves were involuntarily removed from their families and placed in residential schools where Indigenous language and cultural practices were forbidden and children were severely neglected and abused.^[8] As conceded by Canada, underlying this assimilation policy was that belief that First Nations peoples were inferior and unequal.^[9] Mandatory attendance was repealed in 1948 and the last residential school was closed in 1996.

II.5      Denial of Legal Representation and access to remedies

• 1927 amendment to the Indian Act to prohibited “Indians” from hiring lawyers,^[10] thereby thwarting attempts to seek judicial remedies.^[11] Access to remedies was further denied by a 1977 amendment to the Canadian Human Rights Act which excluded “Indian” people living on reserves from filing a complaint with the Canadian Human Rights Commission, making them the only people in Canada unable to seek rights protection under the legislation. The impugned^[12] section was not repealed until 2008. Indians were not allowed to be lawyers in British Columbia until 1961. Alfred Scow was called to the Bar in British Columbia in 1962.

III.       Current Discriminatory Laws and Practices

The devastation wrecked by the seizure of lands, followed by over 150 years of discriminatory laws and regulations cannot be exaggerated. The extent of the disadvantages suffered by First Nations people as a consequence of this historic and systemic inequality and discrimination is reflected in the following conditions:

• shorter life expectancy than that of non-Indigenous people (7 years less for men and 5 for women);[13]
• suicide rates 5 to 7 times the national average;[14]
• incarceration rates 4 times the national average;[15]
• higher incidence of preventable diseases: rate of diabetes is 4 times higher and rate of tuberculosis is 6 times higher than the national average;[16]
• disproportionate rates of violence against First Nations women and girls

Despite more than a decade of demands for government action to address the crisis numbers of missing and murdered First Nations women and girls, there is still no national or provincial plan to improve either police response or the conditions that place First Nations women and girls at heightened risk.  Since 2003, United Nations treaty bodies have called on Canada to take concrete steps to address the high rates of violence, to remedy the social and economic inequality of First Nations women and girls, to provide equal access to the protection of the law and to remedies for violations. When a commission of inquiry was established in BC to investigate allegations of inadequate police and criminal justice branch response to the disappearance and murder of dozens of women in the downtown eastside of Vancouver, BC refused legal aid for most of the groups representing First Nations and other women at risk and as a consequence 18 of the groups with standing withdrew.  In refusing to provide legal aid to groups representing women at risk, BC ignored international law obligations and again violated equality rights. 

IV.       Remedies

Past and continuing wrongs cannot be properly remedied by piece meal apologies in the absence of acknowledgement of the continuing wrong done to First Nations peoples—the forced appropriation of the lands and resources upon which their culture and lives depended. Neither can such wrongs be compensated by token consultation that allows neither the power of veto to First Nations or the right to exercise responsible stewardship over the lands, air, water, habitats and resources taken from them, or the power to take action to prevent unreasonable degradation.

Remediation must begin by Canada acknowledging that the lands and resources were stolen from First Nations peoples without legal justification to benefit European settlers and that the seizure was justified by grossly discriminatory beliefs, now rejected.

The foundation of proper remediation must also include:

• Prior informed consent to development or transfers affecting lands and resources subject to claims by First Nations people;
• Consultation that includes the  right of First Nations to veto–on conservation grounds or other grounds relating to protecting community interests–commercial developments or transfers of lands subject to their claims;
• a return to First Nations of rights of ownership, use, occupation and stewardship over seized lands and resources
• Inclusion of First Nations in democratic decision making regarding land and resources use on lands not returned to them.

Respectfully submitted

Gail Davidson, Executive Director, LRWC

Encl:

LRWC Work on Indigenous Rights in Canada