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A Brief to the UN Committee on the Elimination of Racial Discrimination
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KAIROS maintains that Canada has not made sufficient progress in complying with CERD's recommendation to speed up land rights negotiations, nor in implementing the RCAP recommendations. In particular, we cite two recently tabled pieces of federal legislation, as well as the federal government's current Comprehensive Land Claims Policy. |
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- Bill C-60 (establishing the Canadian Centre for the Independent Resolution of First Nations Specific Claims)
- Comprehensive Land Claims Policy
- Bill C-61, or the First Nations Governance Act
The Canadian churches and religious organizations that make up the membership of KAIROS: Canadian Ecumenical Justice Initiatives, are committed to promoting principles of justice, peace and the protection of human rights.
For three decades these churches have worked to improve the relationship between Aboriginal and non-Aboriginal peoples in Canada by calling for: (1) recognition of Aboriginal title and nationhood; (2) implementation of Aboriginal land, treaty and inherent rights; and (3) affirmation of the historic rights of Aboriginal peoples as they are recognized in international law and the Canadian constitution, including the right to exercise their autonomy, structure their own solutions, and have access to sufficient land and resources.
In 1994 the United Nations Committee on the Elimination of Racial Discrimination (CERD) voiced concern about "the slowness at which negotiations have been undertaken to further define aboriginal rights to land and resources in many parts of the country". The Committee also noted with concern that "certain social indicators concerning especially alcoholism, drug abuse, suicide and the incarceration rate shows that aboriginal peoples may be more affected by social problems than other social groups in the country." In light of these concerns the Committee recommended that Canada should undertake measures "to improve the employment and health situation of aboriginal people" and "to speed up negotiations on aboriginal land claims".
In 1996 the Royal Commission on Aboriginal Peoples (RCAP) concluded that, "Aboriginal peoples must have room to exercise their autonomy and structure their own solutions. The pattern of debilitating and discriminatory paternalism that has characterized federal policy for the past 150 years must end." RCAP stressed, "The rebalancing of political and economic power between Aboriginal nations and other Canadian governments represents the core of the hundreds of recommendations contained in this report (RCAP 1996, Vol. 1:1-3). Among RCAP's principal recommendations is that Aboriginal peoples be provided with lands sufficient in size and quality to foster Aboriginal economic self-reliance and cultural and political autonomy (Vol. 2:574).
KAIROS maintains that Canada has not made sufficient progress in complying with CERD's recommendation to speed up land rights negotiations, nor in implementing the RCAP recommendations. In particular, we cite two recently tabled pieces of federal legislation, as well as the federal government's current Comprehensive Land Claims Policy.
Bill C-60, An Act to Establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims, received first reading on June 13, 2002. Bill C-61, An Act respecting leadership selection, administration and accountability of Indian bands, and to make related amendments to other Acts, otherwise known as the First Nations Governance Act, received first reading on June 14, 2002.
KAIROS maintains that both bills act to perpetuate the inherently discriminatory and paternalistic federal policy that has impeded the efforts of Aboriginal peoples to promote and protect their right to self-determination, or other rights, including the rights to health, education and development. This has resulted in the social and economic displacement and marginalization of Aboriginal peoples in Canada. KAIROS also believes that these bills do not respect the spirit and intent of the CERD's recommendation that State parties "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories."
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Bill C-60 |
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Bill C-60 establishes the Canadian Centre for the Independent Resolution of First Nations Specific Claims, which is intended to improve the process for resolving specific claims. "Specific claims" result from: a breach of the federal government's legal obligation to Aboriginal peoples; the mismanagement of Aboriginal funds, lands, resources or other assets; the non-fulfillment of a treaty or agreement between Aboriginal peoples and the federal government; or the illegal disposition of Aboriginal land.
Within the Centre, a commission will present information on claims to the Minister of Indian Affairs, who will then decide on whether or not to negotiate. A rejected claim could be referred to the tribunal, which would make final binding decisions on its validity, and on cash compensation up to a maximum of $7 million. The tribunal will not be able to offer land as part of the settlement. The Centre would not deal with comprehensive claims; that is, claims that arise when Aboriginal peoples assert Aboriginal title and rights to lands not covered by treaties
Fundamental problems with the system now in place have led to many calls for the creation of a new, truly independent body that is more efficient and fair. The current backlog of 550 claims threatens to grow much larger as only a few are settled annually under the existing process. This means that First Nations are denied the land and resources they need to implement their rights to health, employment, development and self-determination. As is stated in the Royal Commission "Aboriginal nations need more territory to become economically, culturally and politically self-sufficient".
While KAIROS sees Bill C-60 as a hopeful beginning, we have serious reservations and believe that the legislation as it stands will not deliver to Aboriginal peoples their rightful share of this country's lands and resources and will make it even more difficult for Aboriginal peoples to exercise their rights.
First, we worry that capping settlements at $7 million discriminates against Aboriginal communities with valid claims exceeding the legislated limit. Moreover, it could create a situation where smaller claims are given priority over larger ones, compromising the capacity of First Nations to achieve their full potential with more substantial claims that would enhance significantly a community's capacity to implement its right to self-determination.
Second, under Bill C-60 only financial compensation can be considered. This means that awarding land as a form of compensation, such as where First Nations territory was illegally reduced, or in exchange for original territory no longer available, is off the negotiating table. This will restrict the Centre's ability to address the land and resources needs of Aboriginal peoples, which are key to the promotion and implementation of the right of self-determination.
Finally, KAIROS notes that the federal budget for specific claims has not been increased, despite the fact that First Nations continue to argue that the current budget will not cover the current backlog of over 550 outstanding claims.
:: Question for Canada:
- How does limiting the tribunal's authority to resolve claims protect and promote the rights of Aboriginal peoples to access and use their traditional lands and resources?
:: KAIROS calls on the Canadian government to:
- Remove the $7 million cap on settlements referred to the tribunal;
- Allow the tribunal to consider land as compensation;
- Increase the specific claims budget to insure the expedient resolution of claims; and
- Use Recommendation 2.4.2 of the Royal Commission on Aboriginal Peoples as the basis for revising Bill C-60: Federal, provincial and territorial governments, through negotiations, provide Aboriginal nations with lands that are sufficient in size and quality to foster Aboriginal economic self-reliance and cultural and political autonomy.
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Canada's Comprehensive Land Claims Policy |
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The federal government has so far refused to change its Comprehensive Land Claims Policy, which, as noted previously, covers Aboriginal land claims not covered by treaty. The policy requires Aboriginal peoples to relinquish their rights or title to significant shares of their traditional lands as a condition of settlement. This is referred to as extinguishment. However, Aboriginal peoples do not agree that ownership should be relinquished in order to receive compensation for sharing their territories with others. Often, the land base that remains with the Aboriginal community is insufficient to allow Aboriginal peoples to promote their right to development and self-determination and for this reason many communities refuse to participate in the federal comprehensive claims negotiation process.
In 1999, the UN Human Rights Committee asked that the federal practice of extinguishing inherent Aboriginal rights be abandoned because it violated Article 1 of the International Covenant on Civil and Political Rights. Article 1 requires that all peoples " … must be able to freely dispose of their natural resources and wealth and … may not be deprived of their own means of subsistence." Extinguishment also violates several significant principles of Canadian law and the Constitution (section 35) which recognize and affirm the treaty and inherent rights of Aboriginal peoples, including the right of self-determination.
Despite the UN Human Rights Committee's request, Canada seems to be moving towards broadening the scope of extinguishment. For their part, Aboriginal peoples continue to seek a process where Aboriginal title and rights to land are acknowledged, and where resource revenue sharing is a consequence of negotiating treaties with governments.
:: Questions for Canada:
- Why does Canada continue to implement a policy that is in violation of Article 1 of the International Covenant on Civil and Political Rights?
- Why does Canada continue to delay the resolution of land rights issues in Canada by adhering to a policy that prevents Aboriginal peoples from being able to implement their rights to self-determination?
:: KAIROS calls on the Canadian government to:
Use Recommendation 2.2.6 of the Royal Commission on Aboriginal Peoples as the basis for a new comprehensive claims policy: The federal government establish a process for making new treaties to replace the existing comprehensive claims policy, based on the following principles:
- The blanket extinguishment of Aboriginal land rights is not an option.
- Recognition of rights of governance is an integral component of new treaty relationships.
- The treaty-making process is available to all Aboriginal nations, including Indian, Inuit and Métis nations.
- Treaty nations that are parties to peace and friendship treaties that did not purport to address land and resource issues have access to the treaty-making process to complete their treaty relationship with the Crown.
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Bill C-61 |
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Bill C-61, or the First Nations Governance Act, seeks to amend those parts of the Indian Act that deal with governance issues. In defining both 'governance' and the 'tools for effective governance' - such as the financial accountability of First Nations, the operational accountability of chiefs and councils to community members, and elections (leadership selection and voting rights),- the legislation contradicts the very notion of autonomy implied in the term self-determination.
Once passed, the legislation will apply to all First Nations: there is no mechanism by which they may appeal or consider, approve or reject it. Opposition to the bill from Aboriginal peoples has been fierce and widespread.
Many Aboriginal peoples view the bill as proof that the federal government has no intention of abandoning its current aboriginal policy. They point out that the bill ignores the priorities of First Nations - as confirmed by a federal government survey - including poverty, health, education, unemployment, treaty implementation and Aboriginal rights.
For their part, Aboriginal leaders claim the bill is misleading and dangerous because it: (1) does not deal with the First Nations' vision of governance; (2) does not respect the right of self-determination that is recognized in the Treaties, in section 35 of Canada's Constitution Act, and in international law; and (3) weakens the nation-to-nation relationship between the government and First Nations.
:: Question for Canada:
Considering that Bill C-61 is essentially an administrative measure designed to monitor activities on First Nations' reserves, how does it promote and implement First Nations' right to self-determination as outlined in Recommendation 2.3.2 of the Royal Commission on Aboriginal Peoples?
:: KAIROS calls on the Canadian government to:
- Abandon Bill C-61 and work with Aboriginal peoples, nation to nation, to address issues of governance, as well as other priorities identified by Aboriginal peoples, including land rights and treaty implementation, poverty, education and employment.
- Base future First Nations governance discussions on Recommendation 2.3.2 of the Royal Commission on Aboriginal Peoples: All governments in Canada recognize that Aboriginal peoples are nations vested with the right of self-determination.
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