Is Canada Violating Human Rights by Failing to Address Indigenous People’s Rights to Their Territory?

Is Canada Violating Human Rights by Failing to Address Indigenous People’s Rights to Their Territory?

In July 2015, Centre for First Nations Governance (CFNG) Board Member, Robin Vernest participated in an Indigenous Fellowship Programme (IFP) in Geneva Switzerland. The IFP is a comprehensive human rights training program established by the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR).

The Centre supported Robin’s application and she was selected as 1 of 10 Indigenous candidates from around the world. 300 participants have received this training since the programme was established in 1997 and Robin was the 7th Canadian.

The Centre asked Robin about her training and how the protection of human rights is relevant to the struggles of First Nations people in Canada.

1. Why were you selected?

Candidates must be Indigenous and have the support of an Indigenous organization and/or community. The candidate must also agree to train other Indigenous people upon their return home from the program.

I am Swampy Cree Metis and a strong Indigenous rights advocate. Prior to graduating from law school, I worked with the Centre for First Nations Governance (CFNG) whose focus is Indigenous governance capacity development.

As a board member of CFNG, I am part of a diverse national network of community and governance development partners with the potential to educate many Indigenous people across Canada on the United Nations mechanisms available to them. Based on my previous work experience and legal education, the OHCHR was reasonably assured I could implement the training.

2. What did you learn about protecting Indigenous Rights in Canada?

The programme increases the capacity of Indigenous participants to navigate through the UN systems for human rights and Indigenous issues. We left in a better position to protect and promote the rights of Indigenous peoples at the international level. The UN Declaration on the Rights of Indigenous Peoples was an important part of our training.

We attended the Human Rights Council (26th session) on July 8, 2015. The Human Rights Committee completed the sixth periodic report of Canada’s implementation of the International Covenant on Civil and Political Rights. The report is available online: The Sixth Periodic Report of Canada

We also attended the Expert Mechanism on the Rights of Indigenous Peoples (7th Session). At a side event I facilitated a discussion on Indigenous inherent rights to land and the impact of government and extractive industries.

3. Why should this training be provided to indigenous people in Canada?

Educating more Indigenous people on how to access UN Human Rights mechanisms will empower Indigenous rights advocates and result in positive changes for all Canadians.

There are complex human rights violations which continue to affect the lives Indigenous people in Canada. Challenging human rights violations through the traditional channels of tribunals and courts is a costly and exhausting experience. Bringing human rights/Indigenous rights violations to the attention of the United Nations is also not a simple process, however it can bring international awareness and pressure to important issues.

A good example is Sharon McIvor.

Sharon McIvor approached the UN to bring international awareness to an important issue. In 2009 the BC Court of Appeal found that the Indian Act discriminated against persons such as Sharon McIvor and her son by preventing them from passing on status. The court held that Parliament should correct this discrimination through legislation. Bill C-3 was introduced in March 2010 however, it still excluded many Aboriginal women from being eligible for status. In late 2010, after Bill C-3 received royal assent, Sharon McIvor filed a complaint against Canada at the United Nations because of Canada’s continued discrimination against Aboriginal women and their descendants.

Taking this Indigenous rights violation to the International stage provided Sharon McIvor with an opportunity to garner international political pressure. While I was participating in the programme in July 2015, Sharon presented a statement on discrimination and violence against Indigenous women.

4. What is the connection between human rights and territorial rights?

Indigenous peoples and their inherent right to land cannot be separated, and so human rights are equated with territorial rights.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on September 13, 2007. The Declaration was over 25 years in the making. While not legally binding, it sets an important standard for the treatment of Indigenous Peoples that will assist in eliminating human rights violations against Indigenous people and assist them in combating discrimination.

The Declaration introduces the concept of “free, prior and informed consent” (FPIC) whereby Indigenous peoples have the right to influence decisions whenever governments or corporations propose actions that could impact their lives and futures. FPIC puts Indigenous peoples in a more equitable position in such discussions with government or industry. Indigenous peoples must have access to all relevant information to make decisions and have time and opportunity to reach informed and independent conclusions.

Since 1997 (Delgamuukw), the Crown has an Hounourable duty to consult and accommodate Aboriginal and treaty rights in a way which reflects the diverse choices, values and visions of Indigenous peoples in Canada. Unfortunately this “duty to consult and accommodate” is still a far stretch from “free, prior and informed consent”. In 2010, Canada showed their support for the Declaration but viewed it as “an aspirational document” and expressed concern that “free, prior and informed consent” would be used as an Indigenous veto.

5. What one important next step for Canada to take to meet their obligations?

There are still many cases in Canada where Indigenous rights to land and resources are ignored, protested and result in human rights violations and it is up to the current government to implement UNDRIP in a way that addresses these violations.

Until Canada unequivocally implements the Declaration, there will continue to be violations and extraordinary court costs. In 2013, the department of Aboriginal Affairs and Northern Development Canada was at the top of the list of federal departmental spending on legal fees, spending $106 million to litigate First Nation issues.

Robin will be called to the Nova Scotia bar in 2016 and will practice Aboriginal Law.

The Centre for First Nations Governance is a non-profit organization that assists First Nations leadership and citizens in developing the governance required to pursue jurisdiction over their lands and manage the social and economic benefits that result.

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