«Human Rights Council Twenty-seventh session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and ...»
General Assembly Distr.: General
4 July 2014
Human Rights Council
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the rights of indigenous
peoples, James Anaya
The situation of indigenous peoples in Canada* Summary In the present report, the Special Rapporteur on the rights of indigenous peoples examines the human rights situation of indigenous peoples in Canada on the basis of research and information gathered from various sources, including during a visit to Canada from 7 to 15 October 2013. The visit was a follow-up to the 2004 visit to and report on Canada by the previous Special Rapporteur (E/CN.4/2005/88/Add.3). During his visit, the Special Rapporteur met with government officials at the federal level, and at the provincial level in six provinces.
The relationship of Canada with the indigenous peoples within its borders is governed by a well-developed legal framework and a number of policy initiatives that in many respects are protective of indigenous peoples’ rights. But despite positive steps, daunting challenges remain. The numerous initiatives that have been taken at the federal and provincial/territorial levels to address the problems faced by indigenous peoples have been insufficient. The well-being gap between aboriginal and non-aboriginal people in Canada has not narrowed over the past several years; treaty and aboriginal claims remain persistently unresolved; indigenous women and girls remain vulnerable to abuse; and overall there appear to be high levels of distrust among indigenous peoples towards the government at both the federal and provincial levels.
* The summary of the present report is circulated in all official languages. The report itself, which is annexed to the summary, is circulated in the language of submission only.
GE.14-07508 (E) ∗1407508∗ A/HRC/27/52/Add.2 Indigenous peoples’ concerns merit higher priority at all levels and within all branches of government, and across all departments. Concerted measures, based on mutual understanding and real partnership with aboriginal peoples, through their own representative institutions, are vital to establishing long-term solutions. To that end, it is necessary for Canada to arrive at a common understanding with indigenous peoples of objectives and goals that are based on full respect for their constitutional, treaty and internationally recognized rights.
A/HRC/27/52/Add.2 I. Introduction
1. In the present report, the Special Rapporteur on the rights of indigenous peoples examines the human rights situation of indigenous peoples in Canada on the basis of research and information gathered from various sources, including during a visit to Canada from 7 to 15 October 2013. The visit was a follow-up to the 2004 visit to and report on Canada by the previous Special Rapporteur (E/CN.4/2005/88/Add.3). During his visit, the Special Rapporteur met with government officials at the federal level and at the provincial level in six provinces. The Special Rapporteur would like to express his appreciation for the support of the Government of Canada and of the indigenous individuals, nations and organizations that provided indispensable assistance in the planning and coordination of the visit.
II. Background and context
2. Over 1.4 million of Canada’s overall population of approximately 32.9 million (4.3 per cent) are indigenous, or in the terminology commonly used in Canada, aboriginal.
Around half of these are registered or “status” Indians (First Nations), 30 per cent are Métis, 15 per cent are unregistered First Nations, and 4 per cent are Inuit.1 There are currently 617 First Nations or Indian bands in Canada representing more than 50 cultural groups and living in about 1,000 communities and elsewhere across the country. Canada’s indigenous population is younger and faster-growing than the rest of the Canadian population.
3. The history of indigenous peoples’ relationship with Europeans and Canada has positive aspects, such as early political and military alliances and policies of coexistence, the Royal Proclamation of 1763 and the related policy of the British Crown of seeking formal permission and treaty relationships with indigenous peoples before permitting settlement in their territories. There are approximately 70 recognized pre-1975 treaties that form the basis of the relationship between 364 First Nations, representing over 600,000 First Nations people, and Canada. In addition, 24 modern treaties are currently in effect.
4. However, there have also been notable episodes and patterns of devastating human rights violations, including the banning of expressions of indigenous culture and religious ceremonies; exclusion from voting, jury duty, and access to lawyers and Canadian courts for any grievances relating to land; the imposition, at times forcibly, of governance institutions; and policies of forced assimilation through the removal of children from indigenous communities and “enfranchisement” that stripped indigenous people of their aboriginal identity and membership. Most of those policies were executed through the Indian Act, a statute with nineteenth century origins. A rigidly paternalistic law at its inception, it continues to structure important aspects of Canada’s relationship with First Nations today, although efforts at reform have slowly taken place.
5. A particularly distressing part of the history of human rights violations was the residential school era (1874-1970s, with some schools operating until 1996), during which indigenous children were forced from their homes into institutions, the explicit purpose of which was to destroy their family and community bonds, their languages, their cultures and even their names. Thousands of indigenous children did not survive the experience and Aboriginal Affairs and Northern Development Canada, “Aboriginal demographics from the 2011 National Household Survey” (numbers are rounded), available from www.aadncaandc.gc.ca/eng/1370438978311/1370439050610.
some of them are buried in unidentified graves. Generations of those who survived grew up estranged from their cultures and languages, with debilitating effects on the maintenance of their indigenous identity. That estrangement was heightened during the “sixties scoop”, when indigenous children were fostered and adopted into non-aboriginal homes, including outside Canada. The residential school period continues to cast a long shadow of despair on indigenous communities, and many of the dire social and economic problems faced by aboriginal peoples are linked to that experience.
III. Legal, institutional and policy framework
6. Canada’s relationship with the indigenous peoples within its borders is governed by a well-developed legal framework that in many respects is protective of indigenous peoples’ rights. Building upon the protections in the British Crown’s Royal Proclamation of 1763, Canada’s 1982 Constitution was one of the first in the world to enshrine indigenous peoples’ rights, recognizing and affirming the aboriginal and treaty rights of the Indian, Inuit and Métis people of Canada.2 Those provisions protect aboriginal title arising from historical occupation, treaty rights and culturally important activities.
7. Since 1982, Canada’s courts have developed a significant body of jurisprudence concerning aboriginal and treaty rights. In 1997, the seminal case of Delgamuukw v. British Columbia established aboriginal title as a proprietary right to land, grounded in occupation at the time of British assertion of sovereignty, which may only be infringed for public purposes with fair compensation and consultation,3 although in neither that nor any subsequent case has a declaration of aboriginal title been granted. Numerous cases have affirmed aboriginal rights to fish,, to hunt and to access lands for cultural and economic purposes. Furthermore, since the Haida Nation v. British Columbia case in 2004,4 federal and provincial governments have been subject to a formal duty to consult indigenous peoples and accommodate their interests whenever their asserted or established aboriginal or treaty rights may be affected by government conduct. Further jurisprudence confirms that treaties reached cannot be unilaterally abrogated and must be interpreted in accordance with the understanding of the indigenous parties.5
8. The general statute governing registered Indians/First Nations is the Indian Act, which regulates most aspects of aboriginal life and governance on Indian reserves. There are numerous complementary statutes regulating specific subject areas and claims processes, as well as others that give effect to modern treaties and self-government agreements.
9. Notably, Canada recognizes that the inherent right of self-government is an existing aboriginal right under the Constitution which includes the right of indigenous peoples to govern themselves in matters that are internal to their communities or integral to their unique cultures, identities, traditions, languages and institutions, and in respect to their special relationship with their land and their resources. This right of self-government includes jurisdiction over the definition of governance structures, First Nation membership, family matters, education, health and property rights, among other subjects; however, in order to exercise this jurisdiction, agreements must be negotiated with the federal Government. Concerns related to this are discussed in section IV.C below.
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 35.
Delgamuukw v. British Columbia, 1997 CanLII 302 (Supreme Court of Canada).
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Supreme Court of Canada).
See R. v. Sioui, 1990 CanLII 103 (Supreme Court of Canada).
10. Constitutionally, the federal Government is responsible for the State’s relationship with indigenous peoples, through Parliament’s jurisdiction over “Indians and lands reserved for Indians”,6 which as of April 2014 includes Métis.7 Administratively, the management of the relationship with indigenous peoples at the federal level is the responsibility of the Minister of Aboriginal Affairs and Northern Development Canada (AANDC). Most provinces also have ministries or departments of aboriginal affairs, which are heavily involved in issues concerning social and economic policy and natural resource use, over which the provinces have jurisdiction.
11. In relation to its commitments internationally to protect the rights of indigenous individuals and peoples, Canada is a party to the major United Nations human rights treaties and, in 2010, reversing its previous position, it endorsed the United Nations Declaration on the Rights of Indigenous Peoples.
12. In 2008, Canada made a historic apology to former students of some Indian residential schools, in which it expressed a commitment to healing and reconciliation with indigenous peoples, and to forging a new relationship in which the Government and indigenous peoples could move forward in partnership. Some action has been taken in this regard, including the ongoing implementation of the Indian Residential Schools Settlement Agreement, which was negotiated and agreed upon by former students, the churches that ran the schools, the Assembly of First Nations, other aboriginal organizations and the Government of Canada. A cornerstone of the Settlement Agreement was the creation of the Truth and Reconciliation Commission to witness the experiences of government residential school survivors, create a complete, accessible and permanent historical record of the Indian residential school system and legacy, and promote public awareness of it. The operating period of the Commission was recently extended for one year.
IV. Principal human rights concerns
13. Canada undoubtedly has in place, at both the federal and provincial levels, numerous laws, policies and programmes aimed at addressing indigenous peoples’ concerns. Many of them can be pointed to as good practices, at least in their conception, such as Canada’s policy of negotiating modern treaties with aboriginal peoples and addressing their historical claims. A full exposition of those laws, policies and programmes is beyond the scope of the present report. Rather, the Special Rapporteur’s principal aim here is to highlight the ongoing human rights concerns of indigenous peoples for which improvements are required in existing government laws and policies.
14. It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada, which have reached crisis proportions in many respects. Moreover, the relationship between the federal Government and indigenous peoples is strained, perhaps even more so than when the previous Special Rapporteur visited Canada in 2004, despite certain positive developments since then and the shared goal of improving conditions for indigenous peoples.
A. Social and economic conditions
15. The most jarring manifestation of those human rights problems is the distressing socioeconomic conditions of indigenous peoples in a highly developed country. Although in 2004 the previous Special Rapporteur recommended that Canada intensify its measures to close the human development indicator gap between indigenous and non-indigenous Canadians in health care, housing, education, welfare and social services,8 there has been no reduction in that gap in the intervening period in relation to registered Indians/First Nations, although socioeconomic conditions for Métis and non-status Indians have improved, according to government data.9 The statistics are striking. Of the bottom 100 Canadian communities on the Community Well-Being Index, 96 are First Nations and only one First Nation community is in the top 100.10