Tuesday, February 16, 2010

Inter-American Commission on Human Rights to consider indigenous land rights in BC

I’ve just recently caught up with an interesting decision from the Inter-American Commission on Human Rights (IACHR) that was delivered towards the end of last year and which relates to the British Columbia Treaty process.  The case was brought by the Hul’qumi’num Treaty Group who represent six First Nations in treaty negotiations with the provincial government of British Columbia and the federal government of Canada. The IACHR has not yet dealt with the substantive issues raised by the Hul’qumi’num Treaty Group.  This decision only deals with the question of the admissibility of the case, simply determining that the IACHR will hear the case.  But this, in itself, is an important step and the reasoning of the IACHR is significant.

The IACHR is an autonomous branch of the Organization of American States and receives cases (in the form of ‘petitions’) that allege violations of human rights that are protected in the American Declaration of the Rights and Duties of Man or the American Convention on Human Rights.  Canada is a member of the Organization of American States and, having ratified the Charter of the Organization, is subject to the jurisdiction of the IACHR.

The Hul’qumi’num Treaty Group allege that Canada is in breach of its human rights obligations, primarily, under various articles of the American Declaration of the Rights and Duties of Man.  Those articles are:  Article XXIII (right to property); Article XIII (right to culture), and Article II (equality before the law).  The petition alleges that the rights of the Hul’qumi’num Treaty Group have been breached because of “the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for [the Hul’qumi’num Treaty Group] ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the [Hul’qumi’num Treaty Group] consider sacred”. 

As noted above, the IACHR has yet to consider the substance of those allegations.  But its decision to admit this case is significant, in particular, because of the IACHR’s approach to the question of whether all domestic remedies have been exhausted. As is common with other international bodies, the IACHR will not admit cases if there issues can be reasonably addressed by the domestic courts or through some other process in place within the country’s own legal system.  In this case, the Canadian government argued that the Hul’qumi’num Treaty Group had not yet explored all possible avenues to address there concerns within the Canadian legal system.  Therefore, these issues could not yet be considered by an international body such as the IACHR.  However, the IACHR disagreed.
The Canadian government argued that the Hul’qumi’num Treaty Group’s ongoing engagement with the British Columbia Treaty process was the ideal process for addressing their claims in relation to territorial rights.  But the IACHR note that this process has not allowed negotiations on the subject of restitution or compensation for lands now in private ownership, and such lands make up 85% of the Hul’qumi’num Treaty Group’s traditional territory.  The Hul’qumi’num Treaty Group have been involved in the treaty negotiation process since 1994 and their central claims have not yet been resolved.  The IACHR, therefore, found that this process was demonstrably not an effective mechanism for protecting the rights at issue in this case.

The Canadian government also pointed to a range of proceedings that the Hul’qumi’num Treaty Group could pursue through the courts, including actions to obtain recognition of aboriginal title, actions under the provisions of the Canadian Charter of Rights and Freedoms, applications for judicial review, and petitions under heritage legislation demanding that the Crown fulfill its obligations to conduct prior consultation with indigenous peoples.  To support this argument, the Canadian government points to judgments from the Canadian courts which have recognized the existence of aboriginal title and the right to consultation. However, the IACHR notes that the experience of other indigenous groups has shown that none of those judgments has resulted in a specific order mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands.

Consequently, the IACHR found that there were no domestic remedies that provided the Hul’qumi’num Treaty Group with any reasonable expectation of successfully being able to protect the rights in question.  The IACHR will therefore proceed to consider the substance of the case.  The Hul’qumi’num Treaty Group is hoping for a decision on the substantive issues sometime this year.  That decision could have significant implications for the treaty process and I am sure that many people involved in the process will be awaiting the outcome with interest.