PAPER SUBMITTED TO THE
WORKING GROUP ON
INDIGENOUS POPULATIONS
BY THE
COALITION OF FIRST NATIONS,
In Conjunction With the
INTERNATIONAL INDIAN TREATY COUNCIL
July 31, 1984
Geneva, Switzerland
The colonization of the Indian Nations and their territories
by the Anglo-Canadian settlers has resulted in the dispossession
of the Indigenous Indian Nations of their territories and their
domination by an alien society. The Indian Nations share a common
legacy with the Third World of dispossession and foreign control
of natural resources, colonization, underdevelopment and poverty.
The Indian Nations in Upper North America, like the Third World,
have been involved in a struggle to decolonize their relations
with the settler governments and to secure a fair share of the
lands that have been taken from them.
The issues have come into
focus in terms of Canadian independence negotiations with Britain
and legislative initiatives to finally disperse the Indian
Nations. Canada's constitutional and legislative initiatives are a
lesson to other states with unresolved Indigenous Peoples' issues
on how not to remove a colonial legacy of betrayal and bitterness.
There are many Indian Nations that are represented in the
Coalition of First Nations.
Each Nation, from the Micmac and
Mali'seet Nations on the East Coast to the Liluwat Nation on the
West Coast has a long history of oppression and resistance. Each
qualifies therefore as a 'people' as defined by the International
Court of Justice in the Greco-Bulgarian case, (197O).
The member citizens of our Indian Nations are "united by the identity of
race, religion, language and tradition in a sentiment of
solidarity, with a view to preserving their traditions,
maintaining their form of worship, insuring the instruction and
upbringing of their children in accordance with the spirit and
traditions of their race and rendering mutual assistance to each
other".
TRUSTEESHIP AND SELF-DETERMINATION
Aboriginal Rights as understood by our Indian People refer
to our rights to self-government and lands as being inherent,
derived from our people and supported by the land, not given to us
or taken by conquest.
Our treaties, where these were made, and
various British proclamations recognized our original nationhood
and sovereignty. Our grandfathers and elders who maintain the
sacred oral tradition of our Peoples have taught us that these
British treaties were guarantees that the colonial powers would
respect our sovereignty.
These aboriginal and treaty rights were in the Anglo-
Canadian colonial period after 1867 undermined by the unilateral
imposition of a debilitating trusteeship system on the Indian
Nations without their consent.
This colonial trusteeship system was incorporated by the
British Government into the 1867 Canadian 'Dominion' constitution.
As Canada emerged as a self-governing dominion, formed from the
English settlements and the conquered French colony of Quebec, the
Indian nationalities were reduced to the position of being an
internal colony of Canada.
Colonial trusteeship was defined as
public policy in the 1876 Indian Act, which dictated that the
Indian Nations would be placed under the direct supervision of a
central bureaucracy. The Indian Department's objectives: to
assimilate and disperse the Indian Nations and separate them from
their lands remain in 1984 as originally conceived.
Trusteeship inessence has meant the imposition of a structured program of
'direct rule' and coercive assimilation. Trusteeship is, however,
primarily a legal concept that serves as a justification for
federal legislation and authority to exercise dictatorial
authority over Indians and Indian lands, without consent or legal
restraint.
Termination of our distinct political status and absorption
of our territories remain Canadian objectives. These goals are
both specific and implicit in Canadian constitutional dealings and
legislation recently disclosed by the Canadian government an
Indian Status and local government.
In this dilemma, the Indian Nations in Upper North America
now seek confirmation and sanctions of their right to self-
determination in a future non-colonial framework of International
Law. The Working Group on Indigenous Populations must not permit
the continuation of any form of colonialism by supporting the
prevalent notions that self-determination is somehow limited to
non-contiguous territory and/or inapplicable to Indigenous enclave
populations.
The fact that colonialism -- the subordination of a
people to foreign and alien rule -- has been in the past seen as
'internal' by colonizing states does not make it more legitimate
or acceptable. Self-determination has been authoritatively defined
in the Helsinki Final Act as applicable to internal situations.
Article VIII states:
By virtue of the principle of equal rights and self-
determination of peoples, all peoples always have the
right, in full freedom, to determine, when and as they
wish, their internal and external political status,
without external interference, and to pursue as they
wish their political, economic, social and cultural
development. (emphasis ours)
Any initiative by Canada or any other country with Indige-
nous Peoples towards constitutional renovation or legislative
reform must take into account the existence of the right of those
Peoples to self-determination.
THE CANADA ACT OF 1982
Canada's new constitution, proclaimed into law in 1982
belongs to Canadian citizens, not the member citizens of the
Indian Nations.
NO independent Indian nation has ever agreed to
submit to she colonizer's constitution, bills of rights, or any
other enactment of the Canadian Parliament. The Indian Nations in
Upper North America are not now nor have they ever been a part of
Canada as citizens or minority populations.
Determined to retain
our distinct political status, the Indian Nations are involved in
a campaign to replace colonial era systems and relationships with
mutually acceptable terms of coexistence and cooperation.
Our most reasonable and decent demands for a meaningfully
negotiated and just political settlement of the outstanding self-
government and land rights issues have not been heeded nor acted
on.
Canada's 1982 constitution was approved by the British
Parliament with no pre-independence agreement with the Indian
Nations on the future of the colonial trusteeship system.
Promises were made to certain native people that their rights
would be dealt with after Canadian independence. The Coalition of
First Nations was not deceived by these 'bogus' negotiations
because there are no serious negotiations.
The 1980 Fourth Russell Tribunal on the Rights of the
Indians of the Americas dealt with the right of the
Indian Nations in Upper North America to self-determina-
tion in the following terms: "As sovereign units of
governance, Native Nations possess the inherent right
of refusing any incorporation or of being authentically
represented as a self-governing unit where their terri-
tory has been included in an area claimed by a state
apparatus. In other words, a constitution and government
cannot be imposed on Indian people without authentic
participation and the right of refusal to be incorporated
involuntarily is a precondition".
While it is being noted that the established deadline for
the identification and definition of aboriginal and treaty rights
to be included in Canada's constitution has been extended by the
most recent Accord. We must point out that every lever of power in
these constitutional conferences remains entrenched in non-Indian
hands. In the final analysis, these conferences have been
deliberately emasculated and structured as a programmed failure.
BILL C - 52
The most recent legislative development in relation to
Indigenous Peoples was tabled last month in the Canadian Parlia-
ment, called Bill C-52, "An Act relating to self-government for
the Indian Nations", are simply a continuation of internal colo-
nialism. The government of Canada is representing Bill C-52 and
its successor as fulfilling a commitment to Indigenous Peoples'
right to self-government. This is the most gross mis-
representation of what this law actually sets out to do. Both
general and specific measures proposed in Bill C-52 violate the
rights of the Indian Nations to self-determination in many areas.
(a) Jurisdiction:
The Indian Nations have never agreed to the application of
British or Canadian colonial law to their territories and their
peoples.
The imposition of colonial rule began when Indian lands
were arbitrarily annexed by the British through the Royal
proclamation of 1763, the Rupert's Land Transfer of 1870 and other
British Acts.
Trusteeship was thereafter unilaterally decreed over
the inhabitants of these territories and they were considered to
be subjects of the colonizer. The Indian Nations in 1984 find
themselves limited to arguing their case for self-governing
authority within the context of a colonial legal system which is
not ours. Racist colonial era concepts and standards regarding
treaties and trusteeship continue to be applied and amplified in
political discussions on Indian self-government and legal
decisions.
A relevant context for negotiations on Indigenous
Peoples' self-determination needs to be established, based on
equal rights of peoples and self-determination. The Working Group
on Indigenous Peoples can assist in not only creating an
acceptable context, but can and ought to recommend how third party
involvement in negotiations can be accomplished.
Bill C-52 not only maintains the trusteeship internal colony
system but seeks to extend this and give the appearance of a grant
of local self-government. The essential nature of the existing
colonial relationship is not changed, but the bill attempts to
make it appear as though the Indian Nations have the freedom to
consent to Canadian jurisdiction. There is no choice, Indian
Peoples must either choose to live under the existing Indian Act
or under another new oppressive legal framework. In either case,
they must live under a colonial regime.
Once the revised legal regime is approved by Parliament, the
Indian Nations would be systematically coerced into an acceptance
of the model. The Indian Nations will be starved into submission
and cut off from development aid guaranteed by the treaties. The
existing Indian Act and the proposed bill violate the right to
self-government which must according to the Helsinki Final Act be
exercised "in full freedom" and "without external influence".
(b) Inherent Rights Vs. Delegated Authority:
The political standing of the Indian Nations was recognized
by the treaties between the British and the Indians, but these
political compacts as understood by the Indigenous Peoples did not
provide for the incorporation of our people or territory into the
Anglo-Canadian settler society. Bill C-52 provides for a new
scheme of 'approval' of local government charters by the Canadian
constitutional system. (Section 6) The bill must be viewed in the
context of the failure of the last two constitutional conferences.
It is deliberately designed to preempt and prejudge any negotiated
political settlement on Indian self-government and territorial
questions. Self-government and control of a resource base are
synonymous. It is clear that Canadians are not willing to
recognize Indian self-governing institutions and authorities in
its constitution as some natives on colonial advisory councils
have urged.
Bill C-52 does not recognize the inherent rights of the
Indian Peoples but only describes a form of local administration
which has a statutory basis.
It is a well-established and
uncontroversial principle of International Law that the laws of
local inhabitants continue to have the force of law until they are
specifically altered by the dominant power after conquest.
Existing Canadian policy is based on the precept that the
Indigenous Peoples were totally uncivilized, had no Indigenous
polity and therefore Indian laws were not recognized.
This colonist policy is strictly enforced and Indian laws rigorously
suppressed so as to transform the 'native' into a carbon copy of
the colonizer.
Existing Canadian policy on Indian Governments (called band
councils under the Indian Act) is that these are mere extensions
of the Federal Government. This unilaterally imposed legal and
political status is elaborated in Bill C-52 wherein a 'legal
entity' would be created and supervised by both Federal and
Provincial legislatures. Bill C-52 is designed to create an avenue
for terminating 'the' external political status of Indian Nations
as a trade-off for delegated municipal-type powers and authority
which can be rescinded at the pleasure of Canada.
(c) Colonial Rule:
Implicit in colonial relations between settler and
Indigenous people is the belief that the Indigenous Peoples must
be taught how to best administer their affairs, according to non-
Indigenous criteria.
Bill C-52 prescribes standards for the
respect of individual rights and accountability of Chiefs and
Councils to members of Indian communities. These matters are
essentially matters internal to the government of the Indian
Nations over which no foreign and alien power can rule.
If this principle is not respected there is no real self-government.
The Indian Nations have been vigilant in preserving their internal
autonomy despite 100 years of federal legislation designed to
overturn Indian governments. The Indian Nations have maintained
their internal structural integrity through an unceasing respect
for the rights.of communities, families and individuals.
AsPeoples in International Law possessing self-determination, the
Indian Nations do not disagree with the proposition that they are
bound by International human rights, norms or standards.
The interpretation of these norms and standards must be left to the
Indian Nations, not to Canada.
We realize that a great deal of the
developments of Human Rights deals with individual rights but our
rights as a people are collective. We realize this concept causes
& great deal of difficulty with most members associated with the
United Nations. Thus to give individual rights over collective
rights is a death knoll to our community.
The question of accountability must be seen in a larger
perspective. The Canadian Parliament is not elected by the Indian
Peoples and does not represent them. Under trusteeship, with the
program of coercive assimilation, the limited reserve land base
has been greatly diminished. The taking of Indian Lands by
whatever means is considered an act of state that the courts will
not review.
Bill C-52 provides for the continued control of Indian
lands by the Federal Government. Such control is now used to
disperse reservation lands. In addition, Chiefs and Councils are
unable to get an accounting of their trust funds, derived from the
sale of reservation lands. Under the doctrine of Crown immunity,
the Government, Minister of Indian Affairs of the Indian
Department bureaucracy cannot be held accountable for their
actions as regards Indian resources in the courts. Annexation and
the destruction of the reserves are unquestionably violations of
the rights of the Indian Nations to permanent sovereignty over
their natural resources, as provided for in General Assembly
Resolution 1803.
In addition, the denial of the "right to an
effective remedy" for violations of fundamental rights is contrary
to Article 8 of the Universal Declaration of Human Rights. (G.A.
Res. 217 A III).
For these reasons, we would urge the Working Group to
consider a recommendation to the Sub-Commission that the extension
of the principles of the U.N. Trusteeship System cover Indigenous
enclaves. The standards and obligations enunciated in the U.N.
Charter on non-self-governing and trust territories, Chapter 11,
Article 73 must apply to self-determining Indigenous People,
especially the provisions regarding accountability to the
international community. Only when there is some accountability of
states will there be some protection of Indigenous Peoples' rights
and territories against further annexations and encroachments.
Conclusion
The Indigenous nationalities in Upper North America are
'Peoples' possessing a right to self-determination. This right
exists whether or not the country of Canada chooses to recognize
and respect it. The Coalition of First Nations believes in and is
acting on their rights to self-government and sovereignty. This
means that the process of decolonization can be accomplished
through dialogue and mutual respect, or through unproductive
conflicts in response to unilateralism. It is clear that contrary
to its claims before this forum and in others, Canadian public
policy on trusteeship internal colonization has not been altered.
Unilaterally initiated constitutional renovation and/or
legislation is not an acceptable substitute for the achievement of
self-determination by negotiation and agreement. The continuation
of colonial era legal formulations as the basis for negotiations
is unacceptable. Adequate provisions for the respect of basic
principles, and the self-determination of peoples in an
enforceable international framework remains a prerequisite to
peaceful decolonization.
Source: THE FOURTHWORLD DOCUMENTATION PROJECT
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