Justice on Horizon for Original Peoples of Canada?

After centuries of Indigenous resistance, a breakthrough in obtaining justice for Indigenous peoples may be edging closer. A human rights organ of the Organization of American States — The Inter-American Commission on Human Rights (IACHR) — has adopted as a case the petition brought by a Lil’wat mother, Loni Edmonds, against Canada.

The seeking of legal redress for/by Original Peoples for the genocide, dispossession, and assorted injustices wreaked upon them has proven up to now, for the greatest part, of little or no avail. Given that the Original Peoples are struggling within the system set up and enforced by the genocidaires/dispossessors that is unsurprising. There is something both legally and morally amiss in forcing the dispossessed to seek remedy for their grievances in the courts set up by the dispossessor, under the laws of the dispossessor, to be ruled upon by the dispossessor.1 Canada is unexceptional among other European diasporic nation states in its creation: using extreme colonialist violence against the Indigenous nations who date their habitation to time immemorial or “since the world began.”2,3

Given its malevolent founding, it is no surprise that Canada did its utmost to remain outside the purview of the 2007 United Nations Declaration on the Rights of Indigenous Peoples which affirms the right of self-determination of Indigenous peoples, including the right to traditional territory and resources, and the right of Indigenous peoples to oversee their own education in their own languages.4 Canada (which has a history of disregarding its laws and treaties was likeliest convinced that it could continue its willful defiance of Indigenous rights indefinitely) would eventually sign the declaration and join the international community in 2012.

Some, however, have made the case that the Declaration on the Rights of Indigenous Peoples has legal implications.5

There have been sanguine legal rulings, such as Calder v. British Columbia, Haida Nation v. British Columbia, R. v. Sparrow, Delagamuukw v. British Columbia6; these court rulings came against the backdrop of legal documents such as the Royal Proclamation of 1763, which provides for “Indians” to live unmolested on the Hunting Grounds (lands to the west of the Great Lakes).

Among non-Indigenous persons, lawyer Bruce Clark has been at the forefront of trying to bring justice to First Nations. He is clear on what is required to attain justice: “Legal justice requires that the rights usurped be restored, and that reasonable compensation be made for past transgressions. Territory should be restored where it has been illegally taken away. And the existing aboriginal right to govern upon that territory should be respected.”7 It seems a no-brainer in a state which claims to triumph the rule of law.

However, justice for First Nations has been blocked by a legal Catch 22.8 Kerry Coast identified this Catch 22 whereby Original Peoples are given the burden: “… proof of ‘exclusive and continuing occupation’ is a Supreme Court of Canada standard for the finding of aboriginal title to a place, and since the people have been confined to Indian Reserves and criminalized for practicing their traditional economies and ways of life outside of those small boundaries, aboriginal title has become prohibitively difficult to prove.”9

Clark asks, “By what legitimate right did Europeans declare the continent theirs?” This goes unanswered and hence the tactic is to smear those who dare raise the question.10

While Indigenous title is constitutionally recognized in Canada Act, and dubious treaties have been entered into (and broken by Canadian authorities), the situation has been judicially bleak for First Nations. Author Kerry Coast explains that Canadian authorities are pursuing a process of “extinguishment,” i.e., trying to get First Nations to cede Indigenous title. Since the First Nations are the dispossessed, any compromise would in essence be non enim est aliquid (granting something for nothing) — hardly a fair or just deal and definitely not quid pro quo.

“Ultimately it is the genocidal acts which enable the modern practices of denial and extinguishment to continue—while the denial and extinguishment lead to genocidal results.”11

Recently, an outside body has agreed to hear the petition of the Lil’wat Nation member; it is a case that can have far-reaching ramifications for Canada, which has stultified the aspirations of First Nations to seek legal redress in a neutral legal venue.

The International Human Rights Association of American of Minorities (IHRAAM) issued a press release on 25 January, which partially reads:

The Inter-American Commission on Human Rights (IACHR), the regional human rights organ of the Organization of American States, today advised IHRAAM that its Petition 879-07 against Canada on behalf of Lil’wat mother, Loni Edmonds, has been admitted. The Petition contests the seizure of Ms. Edmonds’ six children by the BC Ministry of Child and Family Development (MCFD), and their placement in foster care.

The Petition was originally submitted in 2007 by international legal specialist Dr. Y. N. Kly, Chair of IHRAAM, an international NGO in consultative status with the United Nations, at the instigation of Lil’wat elder, James Louie. The Petition addresses not only individual human rights issues germane to the human rights of mother, Loni Edmonds, and her children, but also links them to issues raised by Canada/BC’s imposition of jurisdiction over Lil’wat families when the Lil’wat have no treaty with Canada.

The Report on Admissibility submitted to IHRAAM dated January 23, 2014 sets forth the Commission’s view that domestic remedy has been exhausted—a primary requirement for access to international tribunals—despite Canada’s arguments to the contrary.

For elucidation on the case, I posed questions to IHRAAM, to which IHRAAM Chair Mrs. Diane Kly replied:

Kim Petersen: “… the Commission’s view that domestic remedy has been exhausted—a primary requirement for access to international tribunals—despite Canada’s arguments to the contrary.” Is it the Lil’wat Nation’s position that a Canadian court should have any jurisdiction over First Nations?

Diana Kly: The Lil’wat Petition challenges Canada’s right to exercise jurisdiction over the Lil’wat, including specifically in the area of child and family law, insofar as the Lil’wat have no treaty with Canada.

KP: What does this taking up of the Lil’wat case by the Inter-American Commission on Human Rights signal for the Truth and Reconciliation Commission which “hopes to guide and inspire Aboriginal peoples and Canadians in a process of reconciliation and renewed relationships that are based on mutual understanding and respect.”

DK: While the Truth and Reconciliation Commission may have sought to compensate individual persons for abuses suffered during attendance at residential schools, it does not address the damage done to indigenous nations as a whole, as it relates to their existence and collective continuance into the future as such. Large numbers of native people can no longer speak their languages; traditional governance structures have been repressed and supplanted by Band Councils. The governmental effort to extinguish land and sovereignty rights continues. Where are the reparations for the damages conducive to the disappearance of the nations themselves, which includes the impact of this on all those past and future members beyond the residential school attendees themselves? If the intent of the Truth and Reconciliation Commission was to undo the wrongs of the residential schools which concerned not just physical and sexual abuse but forced assimilation, why does the government continue to create conditions which lead to the breakup of indigenous nations, such as promotion of fee simple land title? While reparations is not an issue addressed by the present Lil’wat Petition (now Case), the cited contextual factors have been presented.

KP: Pertaining to “consequences could be highly significant for all indigenous nations within Canadian territory. The admission alone draws attention to an avenue of international legal recourse long sought by indigenous peoples seeking redress for their grievances against states that cannot be resolved in domestic courts.”

What is it that the Lil’wat Nation considers to be “Canadian territory”?

What might be the “grievances against states that cannot be resolved in domestic courts”?

DK: The Lil’wat people assert that their territory is not Canadian territory and has never been ceded. It is not possible to resolve grievances in Canadian courts that concern the legitimacy of those courts presiding over grievances where their own exercise of jurisdiction is at issue. Courts cannot simultaneously be an actor in a case, and a judge over it. This is the legal principle of Nemo Potest Esse Simul Actor et Judex.

*****

There is a collision between two aphorisms. If indeed justice does finally arrive for First Nations, is it better late than never? Or does the legal maxim apply: justice delayed is justice denied? First Nations throughout the western hemisphere have been waiting an awfully long time.

  1. I addressed this conundrum in “Canadian Settler Injustice against First Nations,” Dissident Voice, 23 November 2004. []
  2. See Arthur J. Ray, I Have Lived Here Since the World Began: An Illustrated History of Canada’s Native People, Toronto: Key Porter Books, 2005. []
  3. Kanienkehaka elder Kahentinetha Horn declared a moral imperative, “No nation has a right to denationalize another nation.” Mohawk Nation News. []
  4. “It is no coincidence that the Canadian government so adamantly opposes the adoption of the Draft Declaration of the Rights of Indigenous Peoples,” says Adelard Blackman, special emissary for Buffalo River Dene Nation in Northern Saskatchewan. “They believe that it will present a threat because of the power that it will give to Indigenous Peoples, especially in the area of free, prior and informed consent as it applies to lands, territories and resources.” See Kim Petersen,
    UN-Justice in Canada,” The Dominion, 29 September 2006. []
  5. See Kim Petersen, “Indigenous Rights and the Mayan Victory in Belize,” The Dominion, 23 January 2008. []
  6. See Kerry Coast, The Colonial Present: The Rule of Ignorance and the Role of Law in British Columbia (Clarity Press and International Human Rights Association of American Minorities, 2013). []
  7. Bruce Clark, Native Liberty, Crown Sovereignty: The Elusive Aboriginal Right of Self-Government in Canada (Montreal: McGill-Queen’s University Press, 1990: 204). []
  8. Bruce Clark, Justice in Paradise (Montreal: McGill-Queen’s University Press, 1999: 168. []
  9. Kerry Coast, op. cit., p. 215. See review of Coast’s book. []
  10. See Kim Petersen, “Corporate Media Poisons the Well,” Dissident Voice, 27 June 2012. []
  11. Kerry Coast, op. cit., p. 32. []

Kim Petersen is co-editor of Dissident Voice. He can be reached at: kim@dissidentvoice.org. Read other articles by Kim.