Thursday, November 1, 2012

Sharon Venne, Lawyer, Expert in International Law Linking Inherent Rights to Self-Determination and Treaty

I don't watch much TV. We haven't had satellite for ten years, and rabbit ears don't work in the valley -- I've tried -- but when I do get to watch TV, the commercials are my favorite. Some appeal to the heart. Some appeal to the funny bone. Some appeal to the intellect. (My sister and daughters get tired of explaining these ones to me.)

Guess I'm thinking about buy-in this morning. For those of us who have blindly benefited from the treaties, why should we buy-into implementing treaty rights when our side of implementation is already complete?  Guess I've bought in through the heart, or maybe I should say, through a broken heart: stories of residential school -- government sanctioned through the Indian Act  -- stories of residential school alone have convicted me to work toward treaty implementation.

"As we get older I hope we're getting wiser, too. And part of getting wise, I think, is becoming kinder, and if that's true, if we become kinder as we get older, then our people will get stronger," said Ovide Mercredi. As I'm getting older (and hopefully wiser and kinder) I'm learning that not everyone is motivated by the heart.

If you're one of those people who is motivated by intellect, law, and justice, you should read the following speech by Sharon Venne, lawyer, expert in international law, who spoke at the Chief's Forum on Treaty Implementation last March on the topic, "Linking Inherent Rights to Self-Determination and Treaty." (Sisters, daughters, and intellectual friends, don't forget I'll need your help getting my heart-led mind wrapped around these ideas.)

Linking Inherent Rights to Self-Determination and Treaty

Sharon Venne:  Lawyer, Expert in International Law

I will describe some of the ongoing international work and how it impacts First Nations domestically, particularly our work at the United Nations in Geneva, and Canada’s pushback.

Treaties with the British Crown were recognized in 1989 by the UN when they agreed to study Treaties between states and Indigenous peoples.  That meant that our Treaties are international Treaties. The UN does not study domestic issues under international law, so our Treaties are viewed as international agreements.  In the study, the UN was trying to determine how the UN could assist Indigenous peoples with the implementation of our Treaties.  The study started in 1989 and was completed in 1999 but the work is ongoing as the UN is still trying to determine how they can assist us in implementing the recommendations from the study.

In 1989, when we were lobbying for the Treaty study, Canada came into the Commission on Human Rights and told members privately, behind closed doors, that there was no need to have an international study on Treaties because Canada was initiating something called a Treaty Commissioner’s office.  They said that issues related to Treaty violation would be dealt with by a Treaty Commissioner so the UN need not concern themselves with Treaties.  I called back to Canada and asked a couple Chiefs if they knew anything about this. They didn’t and told me to carry on so we carried on.  Canada was trying to use the OTC to undermine the resolution at the UN.

If the Office of the Treaty Commissioner was really designed to assist First Nations in implementing Treaty, why don’t the reports of the Treaty Commission go to the United Nations?  If these reports were submitted to the UN for oversight and review, it would assist the Treaty Commissioner in implementing Treaties.  Instead, the Treaty Commissioners submit their reports to the Minister of Indian Affairs.  The Treaty Commissioner is supposed to be involved in public education of Treaty rights.  In the last provincial election, the Premier of Saskatchewan totally rejected resource revenue sharing.  If the Treaty Commissioner had been doing his job for the past 23 years, the concept of resource revenue sharing would have been a no-brainer because the Premier would have understood that the lands and resources were never given over to the Crown.  The public education process of the OTC is a failure and should be looked at critically.

I’m on a Board of Directors between the Indigenous Bar Association and the Federal Court.  We’re looking at how Elders’ testimony is treated in Canada’s courts.  The Treaty Elder’s book has been used against Elders in the courts in Alberta and in Saskatchewan.  Lawyers and judges have used that book against our Elders and our Treaty rights. It’s a real disservice to our Elders, who took the time and effort to talk about Treaty, to then have their words used against them in a court of law.  I ask you to think about what this Office of the Treaty Commissioner is designed to do because from 1989 onwards, it has been designed to stop work at the international level on Treaties.

In 1990, the Oka crisis was the result of an unfulfilled land claim.  The priests received land around Kanasatake from the French King.  How did the French King get title to the land to then give to the priests?  They sold the land to the town of Oka who then wanted to sell it to have a golf course built.  We were pushing at the UN level to examine how Quebec and Canada could have underlying title to our lands and resources.  A lot of people were interested in that issue.  Then Canada announced in Geneva that they were going to undertake a Royal Commission on Aboriginal Peoples (RCAP) to study this issue.  RCAP spent $68 million on a huge process and report.  They brought copies of the RCAP report to Geneva and handed it out to every government.  They never answered the question of how do they have underlying title but it derailed discussions at the UN level about underlying title of our lands and resources.

The Committee on the Elimination of Racial Discrimination (CERD) is the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties.
All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented.  The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”.
 
In February at the meeting of Committee on the Elimination of Racism Discrimination (CERD), one of the members of the Committee asked Canada – how do you have underlying title to lands and resources and what percentage of the money do you give to First Nation people?  No answer.  This is a very pressing legal question that relates directly to Treaty implementation and relates directly to the work that goes on in Geneva.

Implementation of Treaty has been actively discussed at the UN over a number of years and Canada has used every trick in the book to try to deflect and derail the discussions.  For example, what is the core principle of Treaty implementation?  These are Treaties of Peace and Friendship with no evidence to support land surrenders.  So how did lands and resources become part of Canada?  Shouldn’t it be the priority of Treaty people to deal with the core question of underlying title and revenue sharing?  All the other issues – housing, education, health – become non-issues if you have access to you own resources and wealth from your lands.  Subsidiary issues like housing, health, education, women’s rights, and children’s rights are rights that technically, under international law, do not flow to Nations and peoples.

Under the charter of the UN it says it is dedicated to the promotion and protection of Nations’ and peoples’ rights to self-determination.  Self-determination means that people have the right to freely determine their own political status and future decisions over their lands and resources.  We fought in the UN for years to have that right enshrined in Article 3 of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).  That article was drafted by Indigenous peoples.  We fought for it and got it into UNDRIP.  The USA and Canada lobbied against it so drafters removed it.  Indigenous peoples refused to be involved anymore.  Why would we spend our time there?  We told them, “You guys go ahead, draft the declaration and do whatever you’re going to do but don’t involve us because this is not our declaration anymore.  It’s your state declaration and we’re not going to be involved.”  There was a big kerfuffle in the UN.  Even the High Commissioner of Human Rights, Mary Robinson, who was the former president of Ireland, came to our meeting and said that Indigenous peoples have to come to the meeting.  We told them that we were not going since they removed Article 3, which was our right to self-determination – “We’re not going and we’re having our own meeting.  Good luck to you.”  They went into overdrive.  They didn’t know what to do because they were doing to us what they’ve always done for 500 years – deny that we have rights in our territories.
 
Daniel Turk was the representative from Eastern Europe; now he’s the president of Slovenia.  He came to our meeting and said they would put Article 3 back into the Declaration the way we wrote it.  We said, “No, it’s not good enough now because you can take it out in the future.  We want your assurance that Article 3 will not be removed while the Declaration is going through the process of the UN system.”  He couldn’t give us that assurance.  A day and a half later he came back and said they will guarantee that Article 3 will stay in the Declaration and will not be removed.  We stood our ground.  That is an example of the work at the UN that helps you on the ground because Treaty and Treaty rights are now recognized by the United Nations.

The idea of free, prior and informed consent comes with the right to self-determination.  Canada is trying to downplay that by saying they already have a legal duty to consult and accommodate.  However, that’s not a Treaty right of peoples.  Consultation and accommodation is not an internationally recognized right.  You should always demand free, prior and informed consent.

Beware of the incremental implementation of the Treaty through various pieces of legislation.  Control of our lands and resources is a collective right.  What Canada is trying to do is individualize your collective rights.  In 1976, Canada was talking about human rights legislation with the focus on individual rights.  Noel Starblanket was president of the National Indian Brotherhood and told government that human rights legislation could not apply to Treaty rights because they are collective rights and not individual rights.  A clause was inserted in legislation that said this law does not apply to Indians and lands reserved for Indians.  That clause was there until 5 years ago when the AFN, trying to be buddy-buddy with government, agreed to amend the human rights legislation.  Now an individual right applies within our collective territory.

Canada used AFN to get that agreement which undermines our Treaty rights.  Our Chiefs did not know that.  Now they’re imposing legislation based on individual rights and that’s how Treaty rights get broken down.  Now they’re talking about individualizing matrimonial property on-reserve.  Up until this law, provincial laws dealing with property did not apply on reserves.  Now they’re going to use our own people to bring those laws onto our reserved lands.

People don’t talk about reserved lands anymore, they talk about reserves.  Under Treaty we said that we would share our lands to the depth of a plough, but that we reserved certain lands for ourselves.  Look at where people have lost their lands and what happens to them.  Take a look at what happened to the Maori in New Zealand.  They lost most of their lands when the collective right of use was individualized to fee simple ownership.  They couldn’t pay their taxes so they lost most of their lands.  Someone spoke of the Treaty of Waitangi Tribunal as a possible model for Canada but the Tribunal can only make recommendations.  Make sure to do a critical analysis of what is going on there because I do not believe that is a path for Treaty implementation.

Lord Denning is a jurist from England.  When we went to court in England in 1980, people said we couldn’t go to court in England over our Treaty rights.  We had a war chest from Alberta put together from the people.  They put their money in there.  We went to 5 different law firms and they said there’s no way you can go to court in England because they said that these Treaties were not made with the British Crown, they were made with Canada.  The Elders didn’t believe this.  They sent us to England and we went to court.  Lord Denning said the Treaties were originally made with the Crown in right of Great Britain.  He said we have the authority as Treaty peoples to return if we don’t work out a deal with Canada.  We do not have a deal with Canada.  We could take our case to the British court.

The way the Commonwealth legal history works was that when a country like Canada was emerging from under the skirts of Great Britain, there was supposed to be an imperial conference in London to include the new emerging state of Canada, the Treaty peoples and Great Britain.  We would sit together and decide what was going to happen with these Treaties.  But Trudeau and Chretien didn’t want that to happen because they were trying to impress on the people of Canada that passage of this law in England was just housekeeping.  It wasn’t that significant so they said, “Don’t worry we’ll have these constitutional conferences.”  We had them but the problem was they invited all the non-Treaty peoples to the table.  The provinces came, along with people that did not make Treaty, and they had no authority to talk about Treaty.  That’s where the Prairie Treaty Nations Alliance came from because the Treaty peoples did not go.  So there’s still unfinished business with the state of Canada.  Canada does not have jurisdiction over the Treaties.  Canada wants to have control but Lord Denning said Parliament cannot change the Treaty relationship.

We have to tell people in Ottawa, you have no authority to change my Treaties.  People are going over there and making all kinds of statements saying we’ll amend this, we’ll change that.  When you do that you’re participating in their legislative and policy process and that is what they are trying to get you to do.  We should be going there and saying we have a Treaty right and you cannot interfere with this Treaty right and that’s it.  We’re not talking about your legislation because the whole thing doesn’t apply because we have a Treaty right.  You have to stand on that.  You have to be consistent and you have to be persistent.

I want to talk about the difference between nations and states and the difference between peoples and minorities. Canada is trying to change you into a minority.  When you talk about minorities, you’re not talking about a number of people.  You’re talking about a legal classification in international law.  Peoples have a right to land, resources, their own governance structures and their own legal systems.  These are rights of peoples.  Under international law, the rights of minorities are to wear your traditional outfit, say tānisi, and go to a powwow.  There are no land rights, resource rights and no governance rights in minorities.  Canada is trying to legally make you into minorities because minorities do not have Treaties.

That’s what Trudeau was talking about in 1969 – no people have Treaties with other people in the state – that’s because he was referring to us as a minority.  They have been busy since 1969 to create the climate so they can say there are no Treaty peoples left in this place called Canada and that everybody is a Canadian under the Canadian legal system.  Every time a Chief or anybody gets up and says we want to have equal rights as the white people, you are agreeing to give up your international status and become a citizen like all other citizens in Canada.  Giving up international status for Canadian citizenship is the objective of the 1969 White Paper.

In the White Paper it says there should be no differentiation between the delivery of services for one sector of society as opposed to another sector of the society.  In 1969, the only people that had access to universal health care were Treaty peoples.  The Canada Health Act did not exist at that time and now they have turned it around saying healthcare can only be delivered by the provinces.  They’re moving us in that direction.  They’re doing the same thing in education.  So you look at what’s going on with Treaty rights, Canada is busy incorporating you into the state.

You have to stop making resolutions because when Canada and AFN put the Canada Action Plan together, the AFN was questioned as to where they got their mandate to implement this Canada Action Plan.  They said it came from cumulative resolutions passed over a number of years by different Chiefs Assemblies.  From a Treaty position, where did the idea of a National Chief come from?  There was never a National Chief on Turtle Island as far as I know.  When you give someone that title, National Chief, what are you saying about your Treaties?  What message are you giving internationally about your Treaties?  Think about that.  Think about the Office of the Treaty Commissioner in Saskatchewan, a province which didn’t come into existence until 1905.  How can you have a Treaty Commissioner in Saskatchewan?  Shouldn’t it be a Treaty Commissioner for Treaty 4, or Treaty 5, Treaty 6, Treaty 8 or Treaty 10?

If you think incremental implementation of Treaties is too big, start by thinking about your territories and your responsibilities to your territories because that’s what made the Treaties.  The number one thing about Treaty implementation is lands and resources.  What is your strategy for taking your lands and resources and territories back so you benefit from them?  When you benefit from them you can provide the services for your people.  We are all responsible for implementing the Treaty.  You have to have a plan and stick with the plan.  We can go to the International Court of Justice if we have to.  We have a lot of room to manoeuvre and a lot of support at the international stage.





page 36-39 , excerpt from
Chiefs' Forum on Treaty Implementation

Dakota Dunes Casino and Conference Center
March 29 & 30, 2012

shared as public document with permission from
Dan Bellegarde, Executive Director, Treaty Governance Office

CD of Chiefs' Forum on treaty Implementation available for $5.00
or free transcript is available
by contacting Dan Bellegarde at Dan.Bellegarde@fsin.com

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