2. Legal Empowerment of the Poor: Global to Local An Indigenous Perspective Professor Jacqueline Romanow Aboriginal Governance Program University of Winnipeg

3. 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?

4. 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.)

5. 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

6. 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.

7. 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

8. 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

9. 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

10. 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.

11. 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).

12. 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

13. Indigenous Property Rights in International Law International Labour Organization (ILO) United Nations Organization of American States

14. 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

15. 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).

16. 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.

17. 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.

18. 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.