Transcript Legal Empowerment of the Poor: Global to Local

Legal Empowerment of the
Poor: Global to Local
An Indigenous Perspective
Professor Jacqueline Romanow
Aboriginal Governance Program
University of Winnipeg
Legal Empowerment of the Poor
• What does this mean for indigenous peoples?
• What do indigenous peoples need from this UN
report?
• 4 Pillars: Justice, Property, Labour and Business
• Key issue: Property Rights
• International Legal Framework for indigenous
rights to property
• What is needed?
Indigenous Global Context
• 300-500 million indigenous people in the world
• embody & nurture 80% of the worlds cultural and
biological diversity
• occupy 20% world’s surface
• live in nearly all countries of the world
• Indigenous peoples have historically been the poorest
and most excluded social sectors across the Americas.
• They have faced serious discrimination in terms of their
basic rights to their ancestral property, languages,
cultures and forms of governance,
• also in terms of access to basic social services
(education, health and nutrition, water and sanitation,
housing, etc.)
Indigenous Diversity
• from hunter-gatherers to subsistence farmers to
industrial developers to legal scholars…
• in some countries , like Bolivia or Guatemala, they form
a majority of the population. In other countries, like
Canada or Mexico – minority status
• tend to be concerned with preserving land, protecting
language and promoting culture
• Some want to preserve traditional ways of life, while
others want greater participation in dominant state
structures
• Common plight: struggle for self-determination
• One thing in common: injustice – conquest and
colonialization
Indigenous Peoples in Canada
• In 2006 Stats Can data reports Aboriginal
population of 1,172,785.
• 53% are Registered Indians,
• 30% are Métis,
• 11% are Non-status Indians and
• 4% are Inuit.
• Overall the Aboriginal identity population
represents 4% of the Canadian
population.
Indigenous Poverty and Exclusion
in Canada: UN Report
• Poverty affects 60 per cent of aboriginal children.
• The annual income of aboriginal people is "significantly lower"
than other Canadians.
• Unemployment is very high among aboriginals.
• 20 per cent of aboriginal people have inadequate water and sewer
systems.
• Aboriginals make up 4.4 per cent of the Canadian population but
account for 17 per cent of the people in prison.
• Cases of tuberculosis are six times higher than the rest of Canada.
• Life expectancy among the Inuit is 10 years lower than the rest of
Canada.
• Diabetes rates at 3x national average
• Suicide 5-8 x the national rate
Indigenous Issues
• Internationally, indigenous people are the
poorest, most marginalized , most
discriminated against populations.
–
–
–
–
–
–
Genocide
Assimilation
Displacement
Marginalized
Denied real citizenship and human rights
Denied property and resources
What do Indigenous People Want?
– The right to exist, to thrive, to continue into
the future as Indigenous Peoples
– How can we ensure that?
– Human Rights/Indigenous Rights
– Self determination
– Self-sufficiency
– Secure property rights: traditional territories and
resources
– Cultural/language rights
Why Property Rights
• According to the Report: Secure and accessible property rights
provide a sense of identity, dignity and belonging (34)
• Vulnerable groups suffer most from a lack of property rights.
Indigenous peoples are frequently victims of property
discrimination; collectively held indigenous lands have often been
declared public or unoccupied lands (36)
• while property rights are recognized as important for all, it is widely
accepted that property rights are an essential human right for
indigenous peoples.
• Because of their special relationship with land, and the need for
physical space to pursue their unique cultures and societies, land
rights are essential for indigenous survival.
• Denying indigenous peoples rights to their traditional lands can
have genocidal consequences.
Special relationship to land
“…these rights are not merely real estate issues,
and shall not be conceived according to the
classical civil law approach to “ownership.”
Rather indigenous land rights encompass a
broader and different concept that relates to
their collective right to survival as an organized
people, with control of their habitat as a
condition necessary for the reproduction of
their culture and for their development, or as
indigenous experts prefer, for carrying ahead
their “life plans” (planes de vida) and their political
and social institutions” (Osvaldo Kreimer 2004).
Are Indigenous Property Rights an
Issue in Canada?
• Yes! Land Rights
– Six Nations: Kanehstanton/Caledonia
– Pimicikamak Cree and Manitoba Hydro
– Lubicon Cree and Oil Development
– Mikisew Cree: Duty to Consult vs. Consent
– Unresolved Land Claims across Canada
Natural Resource Rights
– Marshal decision: SCC acknowledges
Aboriginal rights then limits them
Indigenous Property Rights
in International Law
• International Labour Organization (ILO)
• United Nations
• Organization of American States
Interlational Labour Organization
(ILO)
• ILO Convention 169 Indigenous and Tribal
Peoples Convention (1989)
• Replaced C 107 (1957) which was first
international convention on rights specifically
for indigenous peoples (assimilationist,
patriarchal)
• Property and resources: Articles 13, 14 and 15
• Rights to traditional lands and resources
• Resource sharing and consultation
• Signed by 20 Nations world wide including Peru,
Ecuador and Mexico
UN Declaration on the Rights of
Indigenous Peoples (2007)
• Historic document
• Not legally binding per se, but becomes a part
of customary law for its signatories
• 144 countries supported the Declaration
• 4 votes against (Australia, Canada, New Zealand
and the United States)
• 11 abstentions (Azerbaijan, Bangladesh, Bhutan,
Burundi, Colombia, Georgia, Kenya, Nigeria,
Russian Federation, Samoa and Ukraine).
UN Declaration on the Rights of Indigenous
Peoples (2007) and Property Rights
Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive
spiritual relationship with their traditionally owned or otherwise occupied and used
lands, territories, waters and coastal seas and other resources and to uphold their
responsibilities to future generations in this regard.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order to obtain
their free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.
Canada’s position
• ILO C169: has not signed
• UN Declaratio Indigenous Rights: has not
signed
– Of the 35 States in the Americas, only Canada and
the United States voted against.
• OAS Draft Declaration: walked out of
negotiations, refusal to participate
• Canada is refusing to subject itself to a growing
body of customary law in support of
international indigenous rights.
Legally Empowering Indigenous
Peoples in Canada
• Under Canadian law: indigenous peoples have
suffered; in some cases their territorial rights are
denied, others limited.
• International law: shows new promise in terms
of customary law
• Ex. Universal Declaration Human Rights
• We need to get our governments to recognize
international law in this area, recognize the
human rights of indigenous peoples
• Role of civil society, NGOs, students, other
political parties, activists etc.