Power Point-formatted handouts for a paper presented at Stó:Lô Nation Conference 2001: Bridging the Millennia, Bridging Cultural and Legal Traditions, April 5-7, 2001



Are Canada and BC Meeting International Standards Regarding the Rights of Indigenous Peoples?
Stó:Lô Nation and its Search for Justice

Ted Palys
 Simon Fraser University



The Post-War Period

      In the years following WWII, when the League of Nations was disbanded and the United Nations was formed, two very important documents (for our purposes) were created:

      The United Nations Charter; and

      The Universal Declaration of Human Rights


The UN Charter

      Article 1 states that one purpose of the UN is “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”

      However, for more than 50 years, Nation States coveted that guarantee for themselves, but did not extend it to the Indigenous peoples of the world.


The Universal Declaration of Human Rights

      Articulates individual rights that each of us has by virtue of our existence.

      Emerged from a process of drafting and consensus-building, but is not literally “law” unless a nation signs on and agrees to be bound to it.

      But the document also has taken on a life of its own that is independent of signatures.

      The Universal Declaration has now been around for 50 years, and even though there are nations that have not “signed on,” it has become the standard by which any nation’s commitment to human rights is judged.

      Why? Because it has moral authority, and because of constant use and reference, e.g., in court cases, other UN documents, etc.

      Canada is a signatory, but even if it were not, by this point it would be bound by it.

      A limitation of the Universal Declaration is that it deals only with individual rights vis-à-vis nation states, and does not deal with any collective rights individuals have as a member of a people.


The UN Working Group on Indigenous Populations

      The Working Group was formed in 1982. Its place in the UN hierarchy is illustrated below:


UN General Assembly

“Political” levels

Economic and Social Council (ECOSOC)

Commission on Human Rights

Sub-Commission on Prevention of Discrimination and Protection of Minorities

“Expert” levels

Working Group on Indigenous Populations


      The Working Group has five members, all of whom are non-Indigenous and seasoned “experts” with extensive UN credentials.

      The Working Group has had two main projects:

      Creating a UN Declaration on the Rights of Indigenous Peoples

      Study of “Treaties, Agreements and Other Constructive Arrangements”

      Revolutionary within the context of the UN system for two main reasons:

      Consultation and consent process meant that Indigenous peoples for the first time were treated as “subjects” rather than “objects” of international law.

      Open participation rules resulted in more than 700 delegations participating over the 8 years during which the declaration was developed.


The UN Declaration on the Rights of Indigenous Peoples

      After numerous drafts, a final Declaration was ratified by both Indigenous delegations and the Working Group in 1994, then sent through the UN approval process.

      Approved by SubCommission (experts); now at Commission (political) level.

      Whatever the outcome there, moral authority rests in the Working Group version.

      According to Working Group Chair Mme Daes and member Miguel Alfonso-Martinez, the objective now is for the Declaration to be used in a manner that, as happened with the Universal Declaration, will ingrain it as an international standard.

      First use that I know of in Canada was at the Supreme Court of Canada during arguments in Delgamuukw v The Queen.


So … How do Canada and BC Fare Against These Standards?


      I suggest two measures:

      the Treaty Process; and

      “Aboriginal justice” initiatives such as Stó:Lô Nation’s Qwi-qwelstom


The Treaty Process

      The federal and BC governments continue to require “extinguishment” and “surrender” of Aboriginal Rights as a prerequisite to finalizing a treaty. Any treaty will include a finite list that will define that FN’s rights forever.

      Different wording comes up, but the objective is always the same -- terminate Aboriginal Rights and lock Aboriginal Peoples into the year 2001.

      In contrast, Article 44 of the Declaration says:

“Nothing in this Declaration may be construed as diminishing or extinguishing existing or future rights Indigenous peoples may have or acquire.”

      For the Working Group, mutually beneficial and respectful treatment requires that Indigenous Peoples, like the rest of us, are granted an open-ended future.

      Most important is the affirmation of the equality of rights of Indigenous peoples, including, as peoples, their right to self-determination.

      For example, the preamble affirms that,

“Indigenous peoples have the right freely to determine their relationships with States in a spirit of coexistence, mutual benefit and full respect.”

      Extinguishment, in contrast, is for benefit of non-Indigenous peoples only.


Canada’s and BC’s approaches to Aboriginal Justice

      The federal Department of Justice, in particular, continues to try and impose the agenda for “Aboriginal justice,” to see themselves as the decision-makers as to which initiatives will be encouraged, approved.

      Community-based and driven initiatives such as Qwi-qwelstom face an uphill battle.

      In contrast, the Preamble to the Declaration states:

 “The Charter of the UN, the Int’l Covenant on Economic, Social and Cultural Rights and the Int’l Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,”


“Nothing in the Declaration may be used to deny any peoples their right of self-determination.”


In the interests of time, I won’t consider the Draft Declaration in detail, but I’ll invite you to consider the following articles, which clearly affirm the right of the Stó:Lô people to reaffirm and develop their own systems of justice, without interference from the Government of Canada and/or Province of British Columbia:


Article 3

“Indigenous 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.”


Article 4

“Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”


Article 26

“Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.”


Article 33

“Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.”



      Canada and BC have a long way to go before they live up to the standards affirmed in the Declaration.

      The BC Liberals, the government-in-waiting, are still arguing for options that were contained in the Trudeau-Chretien 1969 White Paper, and roundly rejected by Aboriginal peoples across the country.

      The Declaration provides a useful reference point for just how much BC’s First Nations are constantly being asked to give away, and the illegitimacy of those requests.