Assembly Of First Nations Submission to the Sixth Session Of The United Nations Permanent Forum on Indigenous Issues Special Theme: Territories, Lands and Natural Resources

by NationTalk on May 11, 2007894 Views

Assembly Of First Nations Submission to the Sixth Session Of The United Nations Permanent Forum on Indigenous Issues Special Theme: Territories, Lands and Natural Resources

May 14-25, 2007
New York, New York

1. SPECIAL THEME: TERRITORIES, LANDS and NATURAL RESOURCES
Introduction

This part of our submission aims to contribute to an understanding of what First Nations expect and desire with respect to the implementation of a Recognition and Reconciliation approach in dealing with the territorial, land and natural resource rights of First Nations indigenous peoples in Canada.Current Government of Canada policies and approaches in these matters do not conform with Canadian law and with recommendations made previously by the United Nations Committee on Economic, Social and Cultural Rights, the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples and the United Nations Committee for the Elimination of Racial Discrimination,.

For instance, the Committee on Economic, Social and Cultural Rights May 2006 Concluding Observations on Canada’s Report noted:

“11. The Committee regrets that most of its 1993 and 1998 recommendations have not been implemented, and that the State party has not addressed in an effective manner the following principal subjects of concern, which were stated in relation to the second and third periodic reports, and which are still relevant:

b) ….the practice of governments to urge upon their courts an interpretation of the Canadian Charter of Rights and Freedoms denying protection of Covenant rights, …

37. The Committee urges the State Party to re-examine its policies and practices towards the inherent rights and titles of Aboriginal peoples, to ensure that policies and practices do not result in extinguishment of those rights and titles.”

The Special Rapporteur’s Final Report, December 2004, on his Mission to Canada made a number of recommendations intended to help the concerned parties bridge the gaps and consolidate the achievements obtained by Aboriginal peoples so far. The Special Rapporteur recommended, inter alia, that new legislation on Aboriginal rights be enacted by the Parliament of Canada, as well as provincial legislatures, in line with the proposals made by the Royal Commission on Aboriginal Peoples; that Convention No. 169 of the International Labour Organization concerning Indigenous and Tribal Peoples be ratified promptly, in consultation with Aboriginal peoples; that it be clearly established in the text and spirit of any agreement between an Aboriginal people and a government in Canada that no matter what is negotiated, the inherent constitutional rights of Aboriginal people are inalienable and cannot be relinquished, ceded or released; that an evaluation of the new self-government agreements be undertaken.

Most recently the Committee on the Elimination of Racial Discrimination, March 2007, in its Concluding Observations stated:

“21. While welcoming the commitments made in 2005 by the federal government and provincial/territorial governments under the Kelowna Accord, aimed at closing socio-economic gaps between Aboriginal and non-Aboriginal Canadians, the Committee remains concerned at the extent of the dramatic inequality in living standards still experienced by Aboriginal peoples. In this regard, the Committee, recognizing the importance of the right of indigenous peoples to own, develop, control and use their lands, territories and resources in relation to their enjoyment of economic, social and cultural rights, regrets that in its report, the State party did not address the question of limitations imposed on the use by Aboriginal people of their land, as previously requested by the Committee. The Committee also notes that the State party has yet to fully implement the 1996 recommendations of the Royal Commission on Aboriginal Peoples (article 5 e).

In light of article 5 e) and of general recommendation 23 (1997) on the rights of indigenous peoples, the Committee urges the State party to allocate sufficient resources to remove obstacles that prevent the enjoyment of economic, social and cultural rights by Aboriginal peoples. The Committee also once again requests that the State party provide information on limitations imposed on the use by Aboriginal peoples of their land, in its next periodic report, and that it fully implement the 1996 recommendations of the Royal Commission on Aboriginal Peoples without further delay.

22. While acknowledging that the “cede, release and surrender” approach to Aboriginal land titles has been abandoned by the State party in favour of “modification” and “non-assertion” approaches, the Committee remains concerned about the lack of perceptible difference in results of these new approaches in comparison to the previous approach. The Committee is also concerned that claims of Aboriginal land rights are being settled primarily through litigation, at a disproportionate cost for the Aboriginal communities concerned due to the strongly adversarial positions taken by the federal and provincial governments (article 5 d)v)).

In line with the recognition by the State party of the inherent right of self-government of Aboriginal peoples under section 35 of the Constitution Act, 1982, the Committee recommends the State party to ensure that the new approaches taken to settle aboriginal land claims do not unduly restrict the progressive development of aboriginal rights. Wherever, possible, the Committee urges the State party to engage, in good faith, in negotiations based on recognition and reconciliation, (emphasis added) and reiterates its previous recommendation that the State party examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before the courts. Treaties concluded with First Nations should provide for period review, including by third parties, where possible.

In addition to the Supreme Court of Canada and international human rights bodies, the Auditor General of Canada understands that the situation needs corrective measures. In November 2006 the Auditor General of Canada issued her annual report which included an examination of existing federal government policies and practices relating to comprehensive claims negotiations and the fact that agreements are not being concluded:

“Our reading of some key court decisions found that the courts may now interpret treaty negotiations as a “reconciliation” process in which rights of First Nations are implicitly recognized since negotiations on those rights are taking place. This may be inconsistent with the federal government’s position that treaty negotiations are essentially based on policy and conducted ‘without prejudice” (the discussions cannot be used in court), and that it does not recognize rights until a final agreement is ratified. Nonetheless, courts strongly support negotiations as the preferred means of reconciling governments’ and First Nations’ interests.”

The reality confirmed in Canadian law is that Indigenous rights exist and that Indigenous laws and perspectives are essential to understanding those rights. Furthermore, the patriation of the Canadian Constitution made the Constitution, including section 35, the supreme law of Canada and that the very purpose of section 35 is to reconcile Indigenous and Canadian legal traditions.

To view full report, visit here (pdf).

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