Robert A. Williams, E. Thomas Sullivan Professor of Law and American Indian Studies & Director of the Indigenous Peoples Law and Policy Program at the University of Arizona, presents evidence at the hearing. He is flanked by Seanna Howard, staff attorney for the Indigenous Peoples Law and Policy Program and Luschiim Arvid Charlie, HTG elder and witness and member of the Cowichan Tribes.

B.C. First Nations Bring Land Claims to International Forum

Rob Capriccioso
10/31/11

WASHINGTON – Six First Nations of British Columbia have taken to the international legal stage in an effort to shame the Canadian government into recognizing longstanding land claims. Their rationale is simple: We never gave you the land, you took it, so either give us back the land, or give us some other form of remuneration, for stealing and profiting from the plunder.

The First Nations’ efforts were showcased in the capital of the United States on October 28 at a hearing before the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS). The OAS is billed as the world’s oldest regional organization, dating back to 1889, and the IACHR was established in 1960 as a vehicle for the organization to promote and protect human rights.

The unprecedented hearing was granted to the Hul'qumi'num Treaty Group (HTG), which is made up of the Cowichan Tribes, Lake Cowichan First Nation, Halalt First Nation, Penelakut Tribe, Lyackson First Nation and Stz'uminus First Nation. The group accuses the Canadian government of violating the human rights of its 6,400 members by failing to recognize and protect their rights to property, culture and religion as recognized under the OAS's principal human rights instrument, the American Declaration of the Rights and Duties of Man. Canada has been a member of the OAS since 1989.

European settlers first started taking Hul'qumi'num land on the east coast of Vancouver Island in the 1860s with the confiscation of 227 square miles (59,000 hectares), according to HTG’s website. Then in 1884 the federal government gave 80 percent of the Nations’ territory, about 1,000 square miles (268,000 hectares), for the building of the Esquimalt & Nanaimo railway.

The tribes presented evidence at the hearing to support their claim that Canada has systematically ignored tribal land claims while permitting destruction of Indian lands through widespread clear-cutting that led to deforestation, pollution and possible climate change effects. The tribes noted in their arguments that three major forestry development companies—TimberWest Forest Corporation, Hancock Timber Resource Group and Island Timberlands—have been granted control by Canada of nearly 190,000 hectares, roughly two thirds of the HTG members’ ancestral territory.

Robert Morales, chief negotiator for the HTG, explained in an interview that the three companies, in their quest to turn a profit, have eroded the cultural way of life for thousands of First Nations citizens.

“We have lost so much—not only the land but also the culture that was tied into that land, the hunting, the fishing, the wildlife, the sovereignty,” the First Nations citizen said. “It is not right, and we need to get them to make it right.”

Canadian government officials have been far less concerned about what is right or wrong, maintaining at the hearing that the lands now owned by the large corporations are “off the table.” For decades the government has said that its laws do now allow for negotiation over the replacement of the lands, nor compensation for them. The argument boils down to saying that the case has no merit in the first place. The tribes say that the argument is quite convenient for the Canadian government since it created the laws that circumvent Indian human rights and land claims. The tribes have also claimed that Canada never held consultation with them over the sale of the lands, which they say is a violation of international human rights law.

Now, thanks to the hearing, much of Canada’s dirty laundry in this instance has been aired. It remains to be seen if a finding from the OAS will result in the rebuke of the Canadian government that the tribes hope for. If such a rebuke does come, it is likely not to occur for months, as the Canadian government presented significant amounts of legal arguments for the organization to wade through. And even if a rebuke did come, it would not be binding—meaning that Canada would not have to do a thing to rectify the injustice.

Still, said Morales, such a rebuke would be important because it could influence those with a financial stake in the situation to try and right the wrong, because it sometimes can be economically rewarding to take a moral high ground. If the timber companies, for instance, felt that their bottom line was not being served by allowing the injustice to stand, they might be compelled to ask the Canadian government to take action.

Already, groups like Amnesty International have taken note, and they say that the Canadian approach to resolving indigenous land rights disputes falls below international standards of justice. Craig Benjamin, campaigner for the Human Rights of Indigenous Peoples with Amnesty International Canada, said in an interview that Canada should be ashamed of itself.

“The double standard by which governments in Canada ignore the established rights of Indigenous Peoples has done profound harm in the form of the impoverishment of indigenous communities and the denial of justice,” Benjamin said. “Governments in Canada have an inescapable moral, political and legal obligation to work with Indigenous Peoples to set this right. It's a basic issue of justice. And we hope that a positive ruling by the commission on this case will give us one more tool to help push governments to do the right thing.”

The case, while significant for Indian rights in Canada, is expected to have ramifications for tribal communities beyond the Canadian border. Some Indian law experts say it serves to showcase the empowerment that indigenous groups are feeling worldwide in light of the U.N. Declaration on the Rights of Indigenous Peoples, which provides a global framework for sovereign nations to recognize and support Native human rights.

“[T]his case is built upon the same international law foundation as the Declaration. It will have huge precedential impact on right to property,” said Robert Williams, a law professor and director of the Indigenous Peoples Law and Policy Program of the University of Arizona, in an interview days before he argued the case before the commission on behalf of the First Nations.

Williams, himself a Lumbee Nation citizen, said the U.N. Declaration has both integrated and given coherence to the human rights complaints that Indigenous Peoples have been pointing to for at least 40 years.

“It’s a systemization of principles that have already been widely established—that’s why this is such a powerful movement,” he said.

The power of this indigenous movement, Williams said, was exemplified in May when HTG asked the commission to issue “precautionary measures,” which amount to a form of international human rights injunction. The measures required that Canada consult with the tribes prior to permitting a billion-dollar sale of TimberWest Forest Corp. to two government-sponsored public pension funds, the British Columbia Investment Management Corporation and the Public Sector Pension Investment Board. As soon as the news came to light, TimberWest's value dropped sharply on the Toronto stock exchange—the very next day, Williams noted—and no other potential buyers for the company came forward during the 60-day go-shop period for soliciting higher offers. Ironically, the indigenous power here all came from the non-binding precautionary measure.

Benjamin agrees that the possibilities for this case are high, saying that his organization decided to get involved by filing a supporting brief because of “the profound importance of the precedent that we hope it will establish” in terms of creating a framework to help indigenous citizens solve longstanding legal claims.

“What is exciting about this case is the potential that it will begin setting out an alternative based on Canada's international human rights obligations such as the U.N. Declaration on the Rights of Indigenous Peoples and the numerous precedents already established in the Inter-American system,” Benjamin said.

Williams, meanwhile, now waits along with the HTG citizens he represents. He hopes to have a report from the commission within a year, but he knows it could take longer. If all goes well, a settlement with the Canadian government in the form of return, replacement or fair monetary compensation would be the next step. How long that would take is anyone’s guess.

“No one thinks these claims are going to be solved overnight,” Williams said, “but we’re on the right path.”

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