EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES
15-17 December 2003
Organized by the Office of the United Nations High
Commissioner for Human Rights
Background paper prepared by
Ms. Sharon Venne, Akaitcho Dene Treaty 8
Under item 2
Analysis of the difficulties relating to the full implementation of existing Treaties
The purpose of this discussion paper is to present some questions for consideration in relation to the future use of treaties with Indigenous Peoples and the importance of their implementation. The difficulties encountered by Indigenous Peoples relate directly to the colonizer state’s failure to recognize the true nature of the Treaties. The main failure is the refusal of the state governments to recognize the sovereignty of Indigenous Peoples. Indigenous Peoples who entered into Treaties negotiated and concluded Treaties as Nations not as domestic dependent nations as claimed by various colonial courts. The lack of following international legal norms and law had led Indigenous Peoples to the League of Nations and to the United Nations. Indigenous Peoples pushed for a study to be done as a means to find peaceful and long lasting resolution to ongoing disputes on Treaty implementation. The State’s lack of recognition of the finding of the UN Special Rapporteur’s final report (E/CN.4/Sub.2/1999.20) on the Treaties and his conclusions and recommendations continues to lead to confrontations between Indigenous Peoples and the state. It has been four years since the report was submitted and accepted by the United Nations. There has been no substantive attempt by states to implement the recommendations of the final Report. The number of factors related to the state refusing to implement Treaties will be briefly highlighted in this discussion paper.
1. There is a lack of political will on the part of the government. The government of Canada rather than trying to implement the Treaties wants to extinguish the Treaties and replace them with comprehensive land claim agreements in the area north of 60. The Akaitcho Dene are opposed to the comprehensive claims process and rejected a major settlement in 1990 when it required them to extinguish their rights to the lands and resources of their territories. When the Akaitcho Dene negotiated and concluded the peace and friendship Treaty in 1900, they did not give up their relationship with their lands and resources. Canada wants to change the relationship while the Akaitcho Dene want to implement the spirit and intent of the Treaty concluded in good faith in 1900. Since the failure of the Dene/Métis process in 1900, the Akaitcho Dene have tried a number of times to get into a process with Canada to implement their Treaty. In the oral understanding of the Peace and Friendship Treaty, Akaitcho Dene agreed that non-Dene could live among them. However, Dene did not agree that their lives would be controlled by the non-Dene. Dene laws would continue to apply in their lands and their rights to live within their territory was not to be interfered with by the non-Dene. Initially, the non-Dene did not interfere but as more resources were found within their lands, non-Dene have been pushing Dene out of their territory and destroying the lands and waters causing hardship to the Dene. The Elders wants to see the respect shown by the Dene at the original Treaty to be continued.
2. One of the major identified problems in relation to the implementation of the Peace and Friendship is the failure of the education system of the state to give the true history of the colonization of Indigenous territories and the significance of the Treaties. The lack of education among the colonizers about the rights of Indigenous Peoples and non-Indigenous Peoples living under a Treaty has lead to racial tension and discrimination directed at Indigenous Peoples. The racism being directed toward Indigenous Peoples by the colonizers who see themselves having to pay for the settlement of outstanding issues. In the Treaties, a number of undertakings were given by the Crown’s negotiators that the successor state has inherited. Due to the lack of education on the rights of Indigenous Peoples, racism develops and causes conflict. In a number of major studies on the justice system in Canada, the studies concluded that there was systemic racism shown towards Indigenous Peoples by the judicial system from the police to the prisons. The colonizers laws have taken precedent over the Indigenous laws that gives arise to Indigenous Peoples being forced into a racist and uncaring system. In these cases, the collective rights of the colonizers are used to override the collective rights of Indigenous Peoples. There are many examples in Canada where non-Indigenous Peoples have tried to undermine negotiations with Indigenous Peoples. The province of British Columbia tried to have a referendum to determine the parameters of the negotiations. The questions posed in the referendum were biased. The Courts refused to intervene when asked by Indigenous Peoples. Then, Indigenous Peoples organized a massive public campaign to bring awareness of the issue. The Indigenous Peoples were able to attach the attention of unions, church groups, environmental groups, human rights organizations and individuals who campaigned against the referendum. Despite the campaign, the write in ballots went against the Indigenous Peoples who are trying to negotiate agreements for the first time since their lands and territories were occupied by the colonizer in a complete violation of international, British, Commonwealth and Canadian legal norms. In the same province, a modern land claim agreement concluded with the Nisgha was subjected to court challenges and demonstrations by non-Indigenous People.
3. In attempting to negotiate the implementation of a Treaty within Canada, the negotiators have policies and procedures to follow. The negotiations are not based on the rule of law. While the laws are in place to protect the relationship under the Treaties, the government’s negotiators do not appear to be bound by those laws. Rather, there is reference to policies and procedures that Treaty Peoples neither negotiated nor agreed to be bound. These policies and programs used by government to undermine the treaties by degrading their status to administrative issues rather than political arrangements between Peoples.
4. The federal government of Canada is not prepared to accept that Indigenous Governments and laws had previously negotiated and entered into Treaties. The process proposed by the state is an attempt to impose Eurocentric values rather than have recognition and acceptance of the Dene governments and legal system. The preferred method of Canada is to “impose” a government based on the model developed by Canada. The most recent attempts are to incorporate the governments and laws into the legislative framework of the state thereby undermining the original spirit and intent of the Treaties to live side by side in peace and friendship.
5. In the negotiation process to implement the Treaty, Canada wants the Dene to give up their lands and resources as a means to settle outstanding disputes. The negotiations are an attempt to sever the Dene relationship with their lands and resources. For the Akaitcho Dene, the severance of their links to their lands and resources is to relinquish an integral part of themselves. When Dene give up their lands, what happens to the future generations? It was the future generations that the Elders considered at the time of treaty making.
6. These restrictions imposed on Indigenous Peoples by the state prohibit the full intent of the original treaties from being implemented. Indigenous Peoples spend extraordinary time and their limited funds fighting for their basic rights guaranteed under the original treaties. The lands of the Treaty areas are being depleted from their resources causing damage to the animals, plants, waters, fish and other living organisms leaving Indigenous Peoples dependent on the colonizers for their basic needs from clothing to health care.
There are other factors related to the implementation of a Treaty:
1. There is the difficulty of the oral and written version of the treaties. Governments tend to follow the written version which contains much general and ambiguous language especially with respect to bring the words into language giving it life as intended. In the new arrangements made under so-called land claims - the agreements are general and have ambiguous language, especially with respect to programs, funding and technical assistance. It is a huge problem for the so-called modern land claim groups to have their agreements implemented.
2. In relation to new land claim agreements, there is a general failure to index compensation to take into account the impact of inflation and delayed capital payments.
3. There were no appropriate mechanisms included in the original treaties and the modern-agreements related to implementation and that implementation would be worked out through a process of continuing negotiations.
4. There is a perception on the part of governments that programs are not negotiable regardless of the words contained in the original treaties or the modern agreements.
5. In most agreements, there are no provisions to discuss the view of the Indigenous Peoples. It is a government driven process which is unilateral and unyielding that undermines the spirit of making a treaty.
Item 3 (c)
The practical experiences from negotiating process are given in point form:
1. The process is long and cumbersome. For example, the state of Canada does not have a policy on Treaty implementation. There are two broad and general categories: land claims and treaty land entitlement. Both of these process require at the end of the day that Indigenous Peoples must give certainty or “non-assertion undertakings” to the government in exchange for an agreement. A “non-assertion” undertaking means that Indigenous Peoples are locked into the written text of the agreement based on the colonizers language and passed through the parliament making any amendments to the original text very difficult if possible.
2. Canada wants the negotiations to be done within the context of the state laws rather than recognizing Indigenous laws and governments. If an Indigenous Nation wants to negotiation based on their laws and governments, the government puts them to the bottom of the list of negotiations.
3. In Canada, the state controls all the funds for negotiations. In this way, the state officials can arbitrarily decide who is funded and to what level. In some instances, Indigenous Peoples negotiated for more than ten years and going into debt up to $50 million Canadian dollars. As the debt mounts, the pressure to make an agreement becomes more intense.
4. The state has more resources making more ably to drag on negotiations to wear down the Indigenous Peoples.
5. There is a general starting point that the lands and resources of Indigenous Peoples have been vested in the Crown in complete violation of international, commonwealth, English common law and Canadian law.
6. There are many preconceived notions such as three party interests in the lands of Indigenous Peoples. If Indigenous Peoples are the owners of the lands - how can a third party have an interest in their lands and resources without the consent of the Indigenous Peoples?
7. There are no effective mechanisms for consultation and getting the consent for use of the land and resources of Indigenous Peoples living under treaties despite rulings from various courts within the state recognizing the need to have an effective consultation process. Some courts in Canada have written that there might be a need to get the fully informed consent of the Indigenous Peoples when a treaty right is going to be impinged or interfered with.
8. There is no attempt by the state to implement decisions of the courts. It might take several million dollars to take a case to the Supreme Court of Canada. When a decision is made in favour of Indigenous Peoples, there are no political decisions to implement the decision. As a result, Indigenous Peoples question the true nature of the concept rule of law. What law? When is it implemented? Only when it benefits the colonizers seem to be the answer.
Item 4 (a)
Roles of the UN
The Study on Treaties (E/CN.4/Sub.2/1999.20) made a number of important findings on the nature of Indigenous Treaties and international law. It seems that the UN has a real role to play with regard to implementation of the Treaties. The whole issue of exhaustion of internal mechanisms within a state makes it almost impossible for Indigenous Peoples to access the UN system. At any rate, the present UN system does not have a mechanism for Indigenous Peoples to use when dealing with violations of the Treaties. There is no effective state mechanism to deal with disputes arising from Treaty violation. Different states have developed and controlled tribunals, claims panels and commissions. These different internal bodies have not brought about an equitable and lasting resolution to the problems created by Treaty violations. Most treaty violation usually occurs as a result of a state intervention in the lives of the Indigenous Peoples. There should be an external process at the UN when there is no effective dispute resolution within a state. The dispute resolution process must be developed on an equal basis with Indigenous Peoples. Indigenous laws and legal norms must form an integral part of the process. The mechanism has to be independent and free from political interference. The international system needs to recognize the collective nature of the rights of Indigenous Peoples and the collective rights to their lands and resources. An appropriate dispute resolution mechanism must have international supervision of disputes arising from Treaty violations. Treaties were made with independent sovereign nations. Indigenous Peoples were not subjects of the Crowns of Europe. Treaties were made to ensure a peaceful settlement of Indigenous territories. The fact that settlement has occurred in Indigenous lands does not diminish Indigenous Peoples international legal persona. As the Special Rapporteur wrote in his final report, the treaties continue “to be fully in effect and consequently are sources of rights and obligations for all the original parties to them (or their successors) who shall fulfill their provisions in good faith.” The United Nations has a role to fulfill if there is going to be justice for Indigenous Peoples.
The views expressed in this paper do not necessarily reflect those of the OHCHR.