The Secwepemc treaty vote is a human rights violation

By Arthur Manuel

SECWEPEC TERRITORY – The upcoming northern Secwepemc vote on the Northern Secwepemc te Qelmucw (NStQ) treaty is a violation of our human and indigenous right to self-determination as the Secwepemc People under Article 1 of the International Covenant on Civil and Political Rights. The Secwepemc People collectively make up a “people” with standing and those rights at international law. One subgroup cannot cede those rights, yet the governments of Canada and British Columbia are trying to divide and rule our people.

Through the federal government’s comprehensive land claims policy and the British Columbia Treaty process the governments are forcing the Northern Secwepemc NStQ group to extinguish our collective Aboriginal Title to part of our territory by “modification” which is inconsistent with the UN has previously found to be in violation of international human rights law. All UN human rights bodies have said Canada must not extinguish Indigenous land rights in any settlement agreement. This is why Canada has resorted to a scheme to extinguish our Aboriginal Title under the modified or non-assertion land settlement agreements like the proposed NStQ modern agreement, currently in the agreement in principle form..

Aboriginal and Treaty territorial rights are a fundamental part of our human rights under the International Covenant on Civil and Political Rights. It is also very important to understand that Canada has colonized us by dispossessing us, making us dependent and oppressing us under Canada’s constitutional and legal systems. Even the current Supreme Court Justice Beverly McLachlin has admitted that Canada has attempted to commit “cultural genocide” against our peoples. It is this tragic colonial experience that entitles us to get protection under Article 1 of the International Covenant on Civil and Political Rights vis-à-vis Canada.

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The United Nations Human Rights Committee is responsible for ensuring that state governments that sign onto the International Covenant on Civil and Political Rights implement all the provisions in this human rights treaty. In this regard the United Nations Human Rights Committee meets with Canada on a periodic basis and reviews Canada’s Periodic Report and makes Observations and Recommendations to Canada.

The UN Human Rights Committee in 1999 at its Sixty-fifth session made the following concluding observations on Canada’s Fourth Periodic Report on Article 1 on self-determination and Aboriginal Peoples.

The UN Human Rights Committee notes the position that Aboriginal Peoples in Canada are entitled to self-determination but the Committee is not satisfied on how Canada as a state government is not explaining this concept and should devote more time making that analysis in their next periodic report.

7 The Committee, while taking note of the concept of self-determination as applied by Canada to the aboriginal peoples, regrets that no explanation was given by the delegation concerning the elements that make up that concept, and urges the State party to report adequately on implementation of article 1 of the Covenant in its next periodic report.
The United Nations Human Rights Committee noted that, the situation of the aboriginal peoples remains “the most pressing human rights issue facing Canadians” and it fully endorsed the Royal Commission on Aboriginal Peoples (RCAP) especially in regard Aboriginal Peoples need a “greater share of lands and resources” if aboriginal self government is to be successful.

It is crucial to see that the UN Human Rights Committee recognizes Indigenous Peoples in Canada, like all peoples must be able to freely dispose of our natural wealth and resources and that we may not be deprived of our means of subsistence under Article 1 paragraph 2. (See Above) Also it is significant that the UN Human Rights Committee told Canada in 1999 that any effort to extinguish inherent aboriginal rights must “be abandoned as incompatible with Article 1 of the Covenant”.

The United Nations does not accept the position that Canada abandoned the extinguishment of Aboriginal rights under the modified or non-assertion policies. After examining the modified and non-assertion models in 2006 the UN said that these alternatives may extinguish Aboriginal rights (constituting de facto extinguishment) in violation of our rights under Article 1. In paragraph 8 they state:

8 The Committee, while noting with interest Canada’s undertakings towards the establishment of alternative policies to extinguishment of inherent aboriginal rights in modern treaties, remains concerned that these alternatives may in practice amount to extinguishment of aboriginal rights (arts. 1 and 27).

The UN Human Rights Committee specifically ask Canada to re-examine its policy and practices.

“The State party should re-examine its policy and practices to ensure they do not result in extinguishment of inherent aboriginal rights.

We need to tell the Prime Minister that we agree with the UN Human Rights Committee and that we want to meet with his government in order to address this violation of our right to self-determination as Secwepemc people. The Prime Minister has said he wanted to build a new relationship but that relationship must be based on recognition and implementation of our international human rights as Indigenous Peoples. It must address the observations and recommendations of all the human rights bodies that have been monitoring Canada.

The real problem with these kinds of United Nations human rights observations and recommendations is that we do not know how to follow up on them inside Canada. We allow the government to continue with their extinguishment agenda. In the case of the Southern Secwepemc we are not negotiating and are basically left at the sideline. We need to put forward these United Nations human rights observations and recommendations in our dealings with Canada. We should be asking Canada to meet with us to discuss our right to self-determination within a new comprehensive land claims policy that does not extinguish or threaten our Aboriginal Title. If Canada does not want to meet with us we should raise that with the next human rights body as an official complaint.

In fact I am going to make a United Nations Early Warning and Urgent Action Procedure on the NStQ, Agreement in Principle vote because the consequence will extinguish our Aboriginal Secwepemc Title in the NStQ treaty area. This extinguishment will violate our right to self-determination as guaranteed under Article 1 in the International Covenant on Civil and Political Rights.

It is important to know that when our group does this, the federal government will be furious and threaten to cut off our funds. Fortunately, I do not get government funds so I am not worried. We need to do this ourselves and we need to pay the price. We have to assert our rights as they have been laid out in decisions of the United Nations Human Rights Committee on self-determination and Aboriginal rights. Indigenous Peoples have to become more aware of the other United Nations human rights treaties and monitoring bodies because we need to use those institutions to create fundamental change in Canada’s human rights policies regarding us as Indigenous Peoples.

We have won constitutionally with the recognition and affirmation of our Aboriginal and Treaty Rights. We won in the courts with Delgamuukw, Haida, Tsilhqot’in and other cases. We won before the World Trade Organization (WTO) and North American Free Trade Agreement (NAFTA) on establishing that by refusing to recognize our proprietary rights on the ground, Canada was taking for itself an illegal international trade subsidy. We won internationally when the United Nations 143 state governments voted YES to the UN Declaration on the Rights on Indigenous Peoples and Canada voted NO and won again when Canada was forced to reverse its decision. We need to keep the pressure up on Canada and make them recognize our right to self-determination on the ground.

I make the following four recommendations on what we can do to respond to the NStQ treaty vote on the Agreement in Principle. We need to do this now because we need the international community to be aware of the issues before the actually final treaty vote is taken. We need to do this to protect our rights as the Secwepemc nation.

Recommendations

1. The Secwepemc people need to specifically meet with the Prime Minister Justin Trudeau about the violation of our right to self-determination by way of the proposed Northern Secwepemc Agreement in Principle aiming at the extinguishment of our collectively held Secwepemc Title. We need to make the point that the federal government has to recognize of our right to self-determination under Article 1 of the International Covenant on Civil and Political Rights and according to Article 3 of the UN Declaration on the Rights of Indigenous Peoples.

2. This requires establishing a land rights policy and model that will not extinguish Aboriginal Title and rights and that will decolonize the relationship between Canada and Indigenous Peoples in line with the Truth and Reconciliation Commission Calls to Action and international human rights standards.

3. The Secwepemc nation must work with Canada to specifically map out the elements of self-determination between Indigenous Peoples and Canada.

4. The Secwepemc need to initiate an Early Warning and Urgent Action (EWUA) Procedure with the Committee on the Elimination of All Forms of Racial Discrimination at their next session of CERD on April 25 – May 13, 2016 like the EWUA submitted in 2009 .

Yours truly,
Arthur Manuel