Indigenous sovereignty
Why necessary?
On what grounds?
Why have nation-states resisted them?
How can this be achieved?
Is there a role for international organizations?
never relinquished sovereignty
treaties were made in good faith by aboriginals. not so by settlers
Provisions in Indian act and system of governance and cultural assimilation have led to abuse, addiction, poverty, mental illness, etc.
Royal Proclamation of 1763, treaties, and Constitution act/charter? (green book pg 12 diagram)
4 methods in green book (pg 15-19)
self interest. land
UNDRIP??
rhetoric of new nation-to-nation approach. will see if ingenuous
inherent right to sovereignty from exercising absolute sovereignty before.
inherent rights and persisten human rights violations (course text 227)
not binding. But can put pressure??
Amnesty international?
pressure to be a norm entrepreneur in international stage. Setting high expectations
includes right to self-determinaiton and self-governance, determination of membership. Recognition of treaties institutions and intellectual property (text 227)
Canada a signatory in November 2010, but PM Harper said does nto change Canadian laws. Text 227.)
courts have been mixed. Land claims are arduous processes, media skews story when protest. Need honest effort from PM.
different from terra nullis thoughts prior. pg 228 text
different perceptions of ownership.
concept ofmare nullis that prevents Indigenous peoples from enjoying sea rights on which they are dependant. text 228.
normalization of settlers' control over environment 9text 228)
martinez cobo report state that indignous are non-dominant sectors of society seeking to preserve their identity. pg 228
even this definition has its detractors.
nvention 169 of International Labor Organization (ILO) text 229
Canada uses term Aboriginal vs indigenous peoples so it can control who bbelongs. Indigenous peoples have internationla protection to seceed and form a new nation.text 230
land dispossession led to vulnerable state. Solutions to created problems have been controlled by dominant cultures norms and practices rather than their own needs and desires. Text 230.
subjective vs objective terms of self-identification (pg 230 text) flexibility needed.
past practices have controlled who is indigenous and made it hard to identify and decreased the number of people who could identify (pg 230 text)
Controlled by Indian Act 1876. took away self-determination. Racist and sexist policies. Based on colonial gender bias assumptions (pg 231)
by opening up self-identification, they feel it will open it up to people who do not need protection and increase the number (pg 231 text)
limiting in that it comes from a state perspective (pg 232 text). limited within the sovereignty of the state
Canadian government called it an "aspirational" document (text 233). has only been symbolic gesture but no concrete changes.
protection of indigenous people and their rights occurs at the natinal level (text 233)
policy or rights (courts) (text 233). Canadian governemtn has favoured policy over rights since 1970s (234).
Recognition of the inherent right of self-government foundational to negotiation of land claims via section 35 of Constitution act 1982
detailed quote on purpose of lan claims on pg 234
SCC has played significant role in establishing tests for Aboriginal rights claims, but also set out provisions where the federal government can overrule them.
after land claim settled, given limited self-governance of "marriage, membership, service delivery, internal elections, taxation, and the functioning of indigenous governments" (pg 234 text). operates within the Canadian legal and political framework.
limitations to this method are: land claims have become similar to real estate transactions, "usufruct rights for giving up land. other commitments made by goernments have not been met so far. not negotiated on a nation-to-nation basis, but tripartite (including province), and government delegating negotiation to industry when impact possible. pg 234 text
rights have been reduced to delegation of power to control services. operating within Constitution Act means provincial and federal laws still apply. Paramouncy of federal and provincial laws in conflict. pg 235 text
The Mayagna (Sumo) had legal standards recognizing the rights of people to property based on customary land use and occupancy. able to use to remedy past injustices in Nicaragua. pg 235
IACHR - Nicaragua case with Mayagna pg 235-236?. proof of traditional land use and occupancy was found to be sufficient to recognize property.
UNHRC. Omniyak v Canada 1990. Lubicon LAke Band. argued that band members' right to hunt, trap and fish in traditional lands was founded in Indian Act and Treaty 8. 236. UNHCR found that it Canada had violated the rights of the Lubicon, but left to Canada to resolve.
rights approach is lengthy and expensive (have to borrow money to fight cases) pg 237 text. also the court rulings are binding, but the state gets to set its response. converting property definitions, have argued against aboriginals from logging in land beause it is not traditional land use. Stiffle growth and self-determinaiton
sign onto UNDRIP after 4 decades of debate, and coninue to ignore role in reversing the social, positical and economic disparities created by colonization (pg 237 text)
From being here before the arrival of Europeans (Erasmus and Sanders kit 109)
had made treaties as nation-to-nation (Erasmus and Sanders kit 110). Agreements were broken. trusted their word.
treaties were made in good faith, but European interpretation of the agreement was different and altered the intent of the agreement. "fee simple" concept of land for example(Erasmus and Sanders kit 110)
treaties allowing settlement by not giving up the right to use their traditional lands. or government. protect own culture and traditions. keep traditions. hunt, fish, trap and engage with others as they choose (Erasmus and Sanders kit 110)
Royal proclamation also talked about in Erasmus and Sanders kit 111. the policy set forth on negotiation of land posessed by First Nations unless ceded to the Crown. First major legal link between First NAtions and the British Crown.
First NAtions became protected states of the British while being recognized as sovereign nations. Weaker power does not mean the surrender right to self-governance by associating with a stronger power (Erasmus and Sanders kit 111.
Treaties never gave up sovereignty. Have been treated like private law contracts, but SCC R. v Simon found that First NAtions' treaties are unique and share some of the features of international treaties. Were seen as among sovereign nations in 18th and 19th century, why not now? (Erasmus and Sanders kit 111.
BNA Acti of 1867 created internal self-government of settler nation, but First NAtions were never a part of Confederation. Just lumped in as a responsibility of the federal government. . Subsection 91(24) agents of the Crown(Erasmus and Sanders kit 111.
Treaties made after BNA act made through coersion or imposition. no agrement to give up sovereignty. (Erasmus and Sanders kit 111.
Indian Act implemmented in 1876 but no imput from FN. no selection of politicians who legislated the act because they did not have the vote federally until 1960s.
despicable, colonizing, racist situation. under conrol of 'Indian agents'. not legally in charge of a single thing that happened in their land (Erasmus and Sanders kit 112
self-government to this day ihas to go to a department official for approval. Burocrats. No responsible government; can deny changes without reason(Erasmus and Sanders kit 112
continued degradation of the environment by private interests over contested land claims to this day (Erasmus and Sanders kit 112.. not same respect reverence for environment and relationship. need self-government to protect and self-determination
current practice rather than correct behaviour is to offer money for "fee simple" property rights. try to extinguish historic claims through this process. (Erasmus and Sanders kit 112.
Want to sit down and negotiate mutually agreeable terms. sufficient land and resources for everybody in the country. Confederation lends to division of powers. (Erasmus and Sanders kit 113
ocial disruption from extraction of resources and degradation of your environment without any economic benefit, say, or recourse (Erasmus and Sanders kit 113.
Measurements of wellness and health are abject in indigenous community (Schouls kit 115). Living standard no where near that of the non-Indigenous population. Overrepresented in prisons.
attempts to assimilate are a colossal failure (Schouls kit 115). Indian Act and department of Indiginous and Northern Affairs are still insufficient..
want to express their communal ideals in their own way. need to express those differences through self-governemnt (Schouls kit 115
restricted by non-Aboriginal Canadians wanting everybody under one law with same rights. (Schouls kit 115
non-Aboriginals have benefited tremendously from assimilation policies, seizure of Aboriginal land and government defaults on solemn treaties. False beliefs that they just benefitted from hard work. Headwinds/tailwinds falacy? (Schouls kit 116)
Royal proclamation also in (Schouls kit 116. process of treaties for land transfer were not upheld despite Proclamation never revoked.
attitude from settlers of superiority and more advanced as a society. did not recognize differences does not mean inferiority. also Christian gospel was unknown to them so they must be godless/evil. missionary improvement of lives. Justified their actions through "improve" the land and "enlighten" the people (Schouls kit 116.
injustices in the name of providing modern and superior culture. Distortion of reality still reflected today. (Schouls kit 116.
act of confederation divided sovereignty between federal and provincial governments. No constitutionally guaranteed powers for Aboriginal nations. Section 91 (24) of BNA act mand Indians the sole responsibility of Parliament. denied indipendent political power recognized in the Royal Proclamation treaty process (Schouls kit 117
BNA Act provided legal framework for the practice of domination over aboriginal peoples (Schouls kit 117. constitutionalize their actions. led to goals of cultural and religious conversion.
Indian Act and new department of Indian Affairs led to benign neglect coupled with social control and assimilation. (Schouls kit 117.
universality of concept of liberal democracy (individuality, equality, and freedom) don't transcribe to native thought. Individual come before the group? Aboriginal rights rely on the existence of groups in this sense. group rights for membership in the Aboriginal group. (Schouls kit 117.) at the heart of Aboriginal claims lies the iwas that the identity and well-being of Aboriginal individuals and nations are inextricably bound together. group righs are essential to their existence as a people
policy reflecting the primacy of the individual and supremacy of European thinking . assumed that aboriginals would choose that life as well. (Schouls kit 118). Founding principle behind residential schools. give them "equal opportunity". also behind the reserve system (designed to remove Indians to make way for European settlement and prepare Indians through economic training to join the mainstream agricultural and industrial Canadian economy.
Behind "Gradual Civilization of the Indian Tribes" Act of 1857. made Indians and Indian lands wards of the state. Outlawing of traditions sutch as potlatch (1884) sundance (1885) criminal offences...
Trudeau White Paper (1969) recognized government policies were flawed. created indigenous dependancy on government. paternalistic administration and distinct legal status denied liberty and equality. equal participation in mainstream society. dismantle Indian status provisions. (Schouls kit 117.)
led to uprising against. negative reaction. official Aboriginal respose "Citizens Plus" rejected the white paper. holding up treaty agreements would have prevented the situation that has occured. governemnt contributed to the conditions (Schouls kit 118). refuse to accept liberal individualism. assimilation is "cultural suicide"
Constitution Act 1982 - Section 35 "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. (Schouls kit 119
Build upon Constitution Section 35 (Schouls kit 119
4 Constitutional Conferences between 1983 and 1987 could not resolve. Aboriginal leaders argue "existing" meansinherent right to self-government. Government argues that only the rights determined and accorded by the historic treaty process
Liberalism is not a possible meeding ground for all cultures but is a particular way of life (Schouls kit 121). liberal values are given priveleged, unquestioned status in the making of laws ans policies, and discriminate against other visions for life. undemocratic.
further patronizing theour the Department of Indian affairs or piecemeal attempts at extinguishig Aboriginal rights theough cash settlements neither solve the dilemma noe serve the cause of justice (Schouls kit 121.
treaties have not been made for huge swathes of Canadian territory. Canadina courts deciding against indigenous people St Catherine's Milling and Lumber Co. v. R.) legal right to occupy land but did not legally own them.(Land and Townshend pg 124) Compare to secret tribunals of freetrade agreements
by 1927 illegal to pursue land claims unil 1951 (Land and Townshend pg 124)
Canada finally deal with land claims after 1973 Calder case about Nisga's land rights (Land and Townshend pg 124).
Current land claims process is broken, inefficient, etc. put onus on Aboriginals to prove their historic use of the land. rather than the "claim" being from lands that the aboriginal people never surrendered (Land and Townshend pg 124-125) System forces them to spend millions of dollars and decades negotiating a settlement.
problem with the land claim system is the conflict of interest. ruling on own self.(Land and Townshend pg 125). power imbalance. selling off disputed lands during negotiation.
Canada has formed ICC (Indian Claims Comission ) but ignored its suggestions (Land and Townshend pg 127.)
Because of the conflicts of interest highlighted in the current land claims process and all of its inefficiencies, needs to be placed in a body independent from the federal governemnt. Independent tribunal at minimumnation-to-nation model (Land and Townshend pg 127).
RCAP goes one step further. historiic treaties may be invalid because there was not consensus on what they were signing. should presume Aboriginal title continues and renegotiate to lead to independent and self-reliant First NAtions (Land and Townshend pg 127)
inconvenient. See as doing a favour that will cost economy. Jobs, tax revenue, etc. still concerned about our capitalistic construction of the world over indigenous rights and reparations. Approval of pipelines. (find article to support this.