Commissioners: Dinah Shelton, Paulo Sergio Pinheiro, Jose de Jesus Orozco Henriquez, and Rodrigo Escobar Gil
Petitioners:
Indigenous Peoples Law and Policy Program – University of Arizona
State:
Canada

“Everything on this earth is connected. Everything is what sustains us. I know where in our territories to go for what we need. It is like knowing what store to go to: hardware, grocery, or pharmacy,” said Arbid Charlie, the witness for the Hul’qumi’num Treaty Group (HTG). Mr. Charlie addressed the Commissioners of the Inter American Commission on Human Rights (IACHR) on October 28, 2011 in the HTG’s hearing on the merits of its case following the Commission’s release of Report on Admissibility No. 105/09 on October 30, 2009. The report found the HTG’s petition admissible regarding the alleged rights violations of Article II (equality before the law), Article III (freedom of religion), Article XIII (right to culture) and Article XXIII (right to property) of the American Declaration of the Rights and Duties of Man. Commissioners Dinah Shelton (USA), Paulo Sergio Pinheiro (Brazil), Jose de Jesus Orozco Henriquez (Mexico) and Rodrigo Escobar Gil (Columbia) presided.

Robert A. Williams, professor for the Indigenous Peoples Law and Policy Program at the University of Arizona and legal counsel to the HTG, spoke to the Commissioners regarding HTG’s continuing struggle for recognition, demarcation and boundary establishment of Hul’qumi’num’s ancestral lands. Mr. Williams stated that although the Canadian government expropriated HTG lands in the 19th century, the Hul’qumi’num people continued to enjoy access and use of the lands until roughly 10 years ago when industrial deforestation and development of the land substantially increased. The resulting destruction of the land has inhibited the Hul’qumi’num peoples’ abilities to hunt, fish, gather and practice their spiritual and religious traditions on the land. Private ownership of the land has also increased the risk of trespass allegations against the Hul’qumi’num peoples. Mr. Charlie said, “We live in fear of signs . . . We live with the threat of being arrested. I try not to be afraid and go there to harvest plants. I have to. We need these plants for medicine and food.” Mr. Williams told the Commissioners that should Canada refuse to demarcate and establish boundaries indicating HTG ownership of their ancestral lands, the HTG requests alternatively that reparations be given, and that the State provide prior consultation and free and informed consent before making decisions that will result in further destruction of the land.

In response, Jane Arbour, the General Counsel for the Human Rights Section of the Canadian Department of Justice, spoke on behalf of the State of Canada. She argued that the HTG has not attempted to reach a settlement with the State through all available domestic remedies, namely the British Columbia Treaty Commission (BCTC) process or, alternatively, litigation. She stated that the first nations that have pursued litigation have a good record of success, though many of the supposed disappointments in the litigations result from the first nations’ inability to fully prove their ownership of the ancestral lands they claim. Ms. Arbour then stated that the HTG has made no attempt to prove its ownership of the ancestral lands in question, which must be the first step in any effective settlement negotiation. Finally, Ms. Arbour argued that HTG claims ownership of lands that other indigenous peoples also claim as their own ancestral lands, and therefore any settlement of HTG’s complaint will ultimately affect the claims of other Canadian first nations as well.

The Commissioners concluded the hearing with questions for both the State and the Petitioners. Commissioner Dinah Shelton wished to know whether the status of the domestic first nation treaties is of constitutional rank, or whether it can be changed by subsequent state or federal legislation. She further requested to know whether Canadian courts have reconsidered the idea of original acquisitions of indigenous lands similar to the way Australian courts did in Mabo v. Queensland. Both Commissioners Orozco Henriquez and Escobar Gil asked whether indigenous peoples’ property rights constitute a category of their own under Canadian law or whether those rights are considered some other form of private property. Mr. Williams and Ms. Arbour both expressed willingness to respond to the questions at length in writing. Commissioner Shelton offered to preside over friendly settlement negotiations between Canada and the HTG should the parties be amenable to it, to which Mr. Williams adamantly expressed willingness. The State did not respond to this offer in its brief response to the Commissioners, thought Ms. Arbour did state in her opening remarks that negotiations offer the best avenue for settlement of HTG’s complaints.

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