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Indian Nations And International Law

Delia Opekokew

SASKATCHEWAN INDIAN      APRIL 1982      CONSTITUTION SPECIAL EDITION p42  
Indian aspirations for the proper safeguards of treaty or aboriginal rights including the right of self-determination have been disregarded by the new Canadian Constitution. Canada is, therefore, in breach of the paramount human right that vouchsafes to Indians their right to survive as an identifiable political, cultural, racial and economic unit of self-determination in international law. This fundamental human right is based on the principles of equality and nondiscrimination.

The Permanent Court of International Justice has stated that equality in law precludes discrimination of any kind to individual whereas equality of fact involves different treatment for special groups in order to attain a result which establishes an equilibrium between different situations. International principles accord the right of equality of fact to only certain communities of people who must have formerly constituted an independent nation with its own State or more or less independent tribal organization on the territory now controlled by a new State, and additionally this group must perceive itself as a unit empowered to act as one. In other words, this right does not accrue to immigrants who have voluntarily entrusted themselves to the new State.

International law recognizes the French Canadians as a national minority with a right to self-determination because they were included within the national border of the Canadian state against their will. Indian people were also an independent state prior to the creation of Canada and, furthermore, their aboriginal rights from time immemorial in Canada, as confirmed by treaties, places them in a stronger position as a people with the analogous right to self-determination.

The equality between a group such as indigenous peoples who meet the above two standards and the new majority, must be an effective, genuine equality, and the old community of people cannot be deprived of the institutions appropriate to their needs. Collective or community equality, based on the preservation and advancement of the group's cultural identity, would have to become manifest in two important areas: economic life and political life.

Canada (in the past) has recognized that there must exist equality between cultural groups as groups for the realization of the full "equal partnership" objective as to apply only to the two "founding" nations. Indians assert that the two founding nation's concept is racist and the Canadian confederation must be developed to include Indians as equal partners.

The November 5th accord signed by the nine provinces and the Government of Canada to agree to patriation without the consent of Quebec and the indigenous peoples is in serious breach of the basic human rights of Quebec and the indigenous peoples of Canada.

HUMAN RIGHTS AND THEIR APPLICATION TO INDIANS:

The Indians of Saskatchewan area people entitled to three fundamental human rights under modern international law: the right to physical existence, the right to self-determination, and the right to use their own natural resources.

(a) Right to Physical Existence

 The right to physical existence corresponds to the prohibition against genocide. The definition of genocide includes "causing serious bodily or mental harm to members of the group" and "inflicting conditions of life calculated to bring about its physical destruction in whole or in part", two means of genocide which have found expression in the Canada of today.
Because the European powers in the 18th and 19th Centuries confiscated the land of the Saskatchewan Indians and re-arranged their life style contrary to their needs and wishes, the majority of Indians in Saskatchewan today do not live on their aboriginal lands, nor are they able to pursue a traditional lifestyle fully as could be envisioned. Compared to the national population, Indians remain disadvantaged.
Perhaps in the long run the Indian population is better off uneducated, then educated in a non-Indian atmosphere. But the education of youth, the use of natural resources, the choice of an overall lifestyle is an Indian decision.

(b) The Right of Self-Determination

The right of self-determination is a right of a people under colonial and alien domination to choose the path of its own destiny. It is a peremptory norm of international law which possesses political, economic, racial and cultural aspects. Indian people have been left out of this principal because classical colonialism involved the "salt water" theory,

"according to which geographical separateness in the form of overseas colonies, regionally, and indeed continentally, distant from the metropolitan areas of Belgium, France, etc, was a necessary condition of colonialism and therefore of the existence of units of self-determination. "3


Indian Nations and International Law

Delia Opekokew

SASKATCHEWAN INDIAN      APRIL 1982      CONSTITUTION SPECIAL EDITION p43  

However, all people who suffer unwanted political domination may exercise their right to self-determination. Whether this domination occurs in traditional circumstances (trust territories) or in non-traditional circumstances (indigenous populations), the right still obtains.

(i) Political Aspects - People have the right to choose their own forms of government. This is perhaps the single most important element in the right of self-determination. The choice is not pre-determined and is wide-open, ranging from a modest regime of local autonomy, through forms of federal association, to full fledged separate international personality, i.e., statehood and independence. In other words, the principle of self-determination embraces the possibility of a -range of options. It is an ongoing right that remains as long as the people remain integral.

In some cases, national identity most often has a racial and/or ethnic focus. In fact only a separate Indian politic will insure a state of equality, i.e., equality in fact, the corollary to the principle of racial non-discrimination.

(ii) Social Aspects - The social aspect of self-determination lies in the right to choose the social system under which a people is to live, in accordance with its free will and with due respect for its traditions and special characteristics. The elimination of malnutrition, poverty, illiteracy and inadequate housing is one of the goals to which states should aspire.

Spiritual expression is one aspect of social freedom and development that cannot be overlooked. Perhaps legislation similar to the American Indian Religious Freedom Act would be helpful to the Canadian indigenous people. This act guarantees the Native American the right to practice his own traditional religion and to implement measures by which sacred sites and objects will be preserved or restored.

(iii) Cultural Aspects - A people has the right to struggle to preserve its heritage, values and cultural identity from being destroyed, and one means of perpetuating one's culture is through education. If need be, special education may be required to meet the requisite standard of equality in fact.

(c) Economic Aspects and the Rights to Use Natural Resources The economic aspect of the right of self-determination is the right to use one's natural resources. The underlying concept here is that the area of colonialism, economic as well as political, has come to an end. One people must not enrich itself while impoverishing and polluting the resources belonging to another. Indian peoples' rights to the different aspects of self-determination has two other sources: treaties and aboriginal rights.

INDIAN TREATIES AND ABORIGINAL RIGHTS IN THE INTERNATIONAL FORUM:

The view of the treaties in the international law sense stems from the Crown dealing' with the Indians as separate entities having territorial rights which could only be ceded by their full consent. It is the status of the Indian at the time of the conclusion of treaties that is relevant to their status. The treaties mark consensual entry into a relationship of protection. This protection is analogous to the trust relationships some nations have entered into with more powerful nations, but which relationship is only a stepping stone to the eventual full development of the nation being protected. Because of Indian understanding of this relationship at the time, no written clause was included protecting their Indian governments. They were repeatedly promised that their tribal autonomy would be respected and that they would suffer no direct or indirect compulsion to alter their traditional ways of life. Included in both oral and written promises were guarantees to respect their homelands and resources, culture, the right to education, and right to social protection. Canada still argues that treaties were not intended to have international effect but the emerging doctrine of intertemporal laws applies. The core of this doctrine is based on the fact that when the legal system by virtue of which rights have been validly created disappears, these rights can no longer be claimed. Therefore the doctrine of discovery, an obsolete concept employed by a colonial power to justify mistreatment of the Indians is no longer applicable in light of the new legal principle of self-determination. The treaties must now be reviewed as having been negotiated by free, sovereign parties.

In addition to treaty rights, aboriginal rights obtain. Aboriginal rights encompass both the right to property and to self-government. These rights ensure to Indian peoples by virtue of their occupation upon certain lands from time immemorial and by virtue of their traditional political independence. The inhabitants were there prior to any colonial power. The idea that people had fundamental rights to their land by possession can be traced to Vitoria through European colonial practices.

INTERNATIONAL MONITORING AND ENFORCEMENT:

It is often argued that a State is not bound by an International document that it has not ratified. However, there is a good authority in modern international law that certain basic rights generate obligations erga omnes. This means that they have become a part of customary international law and are therefore unabridgeable; accountability for these obligations not depending on treaty ratification. This principle is somewhat akin to the distinction in domestic law between the common law and statutory rights. Therefore, although Canada has ratified nearly all the international instruments on human rights, her accountability does not depend on this official act.

In addition to having erga omnes, human rights are considered jus cogens i.e. a "peremptary norm of general international law." More specifically, jus cogens is a...
"norm accepted ... by the international community of states ... as a norm from which no derogation is permitted and can be modified only by a subsequent norm."9

A principle of international. law assumes this quality when it is so fundamental to the well-being of a people that no subsequent relinquishment has any legal effect. The right of a people to physical existence, to self-determination and to use natural resources are examples of jus cogens i.e. they are unabridgeable.


Indian Nations And International Law

Delia Opekokew

SASKATCHEWAN INDIAN      APRIL 1982      CONSTITUTION SPECIAL EDITION p44  

Nevertheless, there exists a strong tension between the right of self-determination and the preservation of a state's stability. An essential consequence of recognition of the right of peoples under colonial and alien domination is the rejection and condemnation of colonialism in all its forms and manifestations. Therefore colonialism has come to be characterized as a crime under customary international law. The right to self-determination implies the right of peoples to struggle by every means available to them, including both peaceful and forceful measures. An act of secession is not included in such a political struggle.

 However, the express acceptance of the principles of national unity and territorial integrity of states implies non-recognition of secession. Nevertheless, if national unity and territorial integrity are mere legal fictions employed to veil real domination, no secession obtains, only a free act of self-determination.

States in general under a positive mandate to help people achieve their full development. Humanitarian intervention has long been recognized. For example, the United Nations has paid special attention to the activities of various national liberation movements in a number of resolutions passed in the 1970's. Many of these movements from Africa have been invited to participate as observers in the works of the General Assembly and other United Nations bodies. This invitation has the effect of recognizing these movements as the authentic representatives of a subject people and of according them special status.

The continued concern of the UN General Assembly with the rights of peoples to self-determination can be seen in the continuing support it has given to the self-determination of the United Nations dated 23 November 1979, entitled, "Importance of the Universal Realization to the Right of Peoples to Self-Determination and of the Speedy Granting of Independence to Colonial Countries and Peoples for the Effective Guarantees and Observance of Human Rights", the General Assembly by a vote of 105-20-16 reaffirmed the legitimacy
of the struggle of peoples for independence and liberation from colonial domination. In provision number 4 of this resolution the General Assembly set forth the following condemnation:

Strongly condemns all partial agreements and separate treaties which constitute a flagrant violation of the rights of the Palestinian people, the principles of the Charter of the UN and the resolutions adopted in various international forums on the Palestinian issue, and which prevent the realization of the Palestinian peoples' aspiration to return to their homeland, to achieve self-determination and to exercise full sovereignty over their territories.

This resolution embodied the General Assembly's concern with the lack of recognition given to the PLO in the Camp David Peace Negotiations. By analogy to the Canadian situation by failing to include the direct participation of Canadian Indians in the Constitution drafting process the proposed Canadian Constitution can be viewed as a "separate agreement" undermining a peoples (the Canadian Indians) right to self-determination. Canada voted against the above quoted resolution. However, the resolution embodies a sensitivity on the part of the General Assembly toward peoples' self-determination struggles and a condemnation of negotiations between member states to the UN which do not heed the right to self-determination of peoples.

Indians are not accorded the status of a liberation movement at the United, Nations, and the Economic and Social Council's Commission on Human Rights has passed a resolution at its recent 38th session held between February 1 to March 12, 1982 recommending that the Economic and Social Council establish a Working Group on Indigenous Populations to review developments on the human rights and fundamental freedoms of indigenous peoples and further, to give special attention to the evolution of standards concerning the plight of indigenous populations.

The way indigenous people perceive land ownership and self-determination was mentioned among the elements which differentiate them from ethnic, linguistic and religious minority groups. Minority rights protection does not include the, right to self-determination nor the right to land ownership. Self-determination, it was stressed, was an important matter for indigenous populations.

Because classical international law has restricted the application of the right of self-determination to non-self-governing territories which are geographically separate, indigenous populations are caught in limbo and are in a gap between the International law definitions of a "peoples" and a "minority". The United Nations political decision to develop a Working Group on Indigenous populations should assist. More importantly, Indian peoples perception of themselves as a liberation group leading to their recognition for observer status at the United Nations will develop. Their right to self-determination is the fundamental aspiration.

No court has fully dealt with the treaties as international in nature although the English Court of Appeal in the Indian Association of Alberta on January 27, 1982 touched on it. It may be opened to Canadian Indians to pursue the matter through an international tribunal.

On July 30, 1981 pursuant to the Protocol of the International Covenant of Civil and Political Rights to which Canada is, a signatory, the Human Rights Committee to publicly entered its decision in favor of the legitimacy of an individual Indian's human rights complaint against the Canadian Government in re the Matter of Sandra Lovelace.

Regardless of the merits of this decision, the procedure through which the complaint was lodged can be used by an individual Saskatchewan Indian on behalf of other Saskatchewan Indians to assert a violation of the right of self-determination of Indian people in the Canadian Constitution.

Indian people are ultimately responsible for preserving and protecting their rights. Their self-determination as a cohesive group with the right to determine their government, to enjoy their spiritual and material heritage within the Canadian Confederation is the key to their survival.