Ladysmith lawyer Robert Morales tells a B.C. history story that’s rarely taught in the province’s schools. At a recent Amnesty International forum on indigenous rights at Vancouver Community College, he described how B.C. gave Canada a 64-kilometre-wide strip of land from Victoria to Comox—more than 800,000 hectares—when the province joined Confederation in 1871.
“Canada used it to negotiate…a railway,” Morales said. “The successful person that got the contract was a member of the legislative assembly for British Columbia—a good friend of the prime minister.”
Morales, chief negotiator of the Hul’qumi’num Treaty Group Society, was referring to coal baron Robert Dunsmuir, who, with his American partners, ended up owning land and mineral rights over a huge part of eastern Vancouver Island. “There were no treaties at that time,” Morales said. “And in fact, many First Nations didn’t even know what had transpired.”
Morales estimated that 60 to 70 percent of his people’s traditional territory is owned by forestry corporations as a result of this deal. “You look at the mountains and it’s like a lawn mower has gone over them,” he said at the forum.
Even though the Hul’qumi’num people lost access to up to 90 percent of their traditional territory, the provincial and federal governments have refused to negotiate this issue. That’s because the two levels of government won’t bargain over private land in the treaty process.
But the Hul’qumi’num did something unexpected: they filed a complaint with the Inter-American Commission on Human Rights, which was created by the Organization of American States in 1959. According to Morales, Canada responded by stating that aboriginal people have access to an effective court process in this country and these issues should be resolved through the treaty process. The Inter-American Commission rejected Canada’s arguments.
“It was not effective in terms of protecting the Hul’qumi’num people’s rights while we’re in the process of negotiating,” Morales said.
The Inter-American Commission has not issued a ruling on the complaint, but the fact that it was heard speaks to the growing influence of international human-rights law on aboriginal rights. Another speaker at the forum, Quebec lawyer Paul Joffe, stated that the United Nations Declaration on the Rights of Indigenous Peoples—which Canada signed in 2010—has legal consequences in this country.
He cited a recent decision regarding a human-rights complaint about child-welfare services on First Nations reserves. “The Federal Court said the following: ‘The Supreme Court of Canada has recognized the relevance of international human-rights law in interpreting domestic legislation,’ ” Joffe said. “So right away, you can see there are legal effects.”
The UN declaration has 46 articles calling on countries to protect indigenous peoples’ economic, social, cultural, political, environmental, and spiritual rights. The Conservative government has claimed that the UN declaration is “not legally binding”, describing it as “an important aspirational document”.
Joffe, however, adamantly rejected that argument. He noted that the Federal Court decision stated that Parliament “will be presumed to respect the values and principles enshrined in international law, both customary and conventional”. He said that conventional referred to treaties.
Two things must be demonstrated for customary international law to apply. “You have to prove that most states—not all states—adhere to the norm, and the second thing is that there must be a belief that they have some legal obligation to respect that norm,” Joffe stated.
As examples of customary international law recognized by Canadian courts, he listed the right to self-determination, an obligation to honour treaties, and prohibitions of genocide and racial discrimination. He maintained that the UN declaration can be read into Section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights.
“It hasn’t been decided yet,” Joffe acknowledged, “but it’s my view that one day the courts will have to recognize when it says ‘existing aboriginal treaty rights in Section 35’, it has to refer to all of the rights in the declaration.”
Chief Doug White of the Snuneymuxw First Nation told the audience at VCC that no Canadian court has ever had the courage to declare aboriginal title exists on one square inch of land in this country, notwithstanding decades of litigation. He also highlighted the importance of a 2004 Supreme Court of Canada decision, which imposes a “duty of consultation” on the Crown when making decisions that have an impact on aboriginal rights.
In addition, White stated that the UN declaration recognizes that decisions affecting the rights of indigenous people must be done with their “free, prior, and informed consent”. And he claimed that Prime Minister Stephen Harper is “incorrect” when he claims that the declaration is not enforceable in Canada.
The federal government “was going down a pathway that has only become clearer and clearer to us this year,” White said. “So we need to be able to use international rights to achieve a proper pathway to respect and recognition in this country.”