An international NGO in consultative status with the United Nations
The UN Human Rights Council
IHRAAM interventions to the UN
Human Rights Council’s 19th
session addressed issues on:
Agenda item 3:
Indigenous Nations in Canada Face
Systemically Enforced Non-development

Agenda Item 9:
Discriminatory Incarceration Severely
Impacts the African American National
Minority

IHRAAM interventions to the UN
Human Rights Council’s 18th
session addressed issues on:

Agenda item 3:
Canadian First Nations Disproportionate
Placement in Foster Care: Three Times the
Level of Residential School Placements at
Their Peak

Agenda Item 4:
Has R2P Become Right to Pillage?

Agenda Item 9:
The African American National Minority
Remains Significantly Less Well Off Than
White Americans With Trends Downward
Despite High Visibility of Black Individuals
IHRAAM participates in the HRC's
UNIVERSAL PERIODIC REVIEW
scrutinizing state behavior in
relation to their legal human
rights obligations as signatories
to the international human rights
treaties.
Inter-American Commission
on Human Rights (IACHR)
The UN Permanent Forum
on Indigenous Issues (PFII)
PERMANENT FORUM ON INDIGENOUS ISSUES

May, 2013


Agenda Item 6 - Study on the links between indigenous rights, truth
commissions and other  truth-seeking mechanisms on the American continent
(UN DOC. E/C.19/2013/13)

Canada's Truth and Reconciliation Commission NOT the model
for global adherence

Indigenous Peoples’ experience with Canada’s Truth and Reconciliation
Commission demonstrates why the Declaration on the Rights of
Indigenous Peoples so urgently requires that a mechanism be set in
place which provides Indigenous Peoples as such with access to
juridical recourse in relation to disputes with states, similar to the
manner in which states (but presently only states) are able to seek
recourse against other states through the International Court of Justice.

For several generations, Canada sought to assimilate Indigenous
children into the culture of the Canadian settler population by means of
its Indian Residential Schools (IRS). By forcibly seizing their children
from the Indigenous Peoples and handing them over to non-indigenous
institutions for their education, thereby depriving indigenous children of
their traditional languages, cultures, histories and spirituality, and
enforcing upon them an alien industrial Christian worldview, Canada
sought to erase all traces of the indigenous holders of inherent and pre-
existent sovereignty and rights, and thereby to gain access to territories,
resources and jurisdiction which it was unwilling or unable to achieve by
any other manner.  

This policy was enacted to such ill effect and was so blatantly contrary
to the Genocide Convention, which defined as genocide “those acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group as such,” and, most specifically germane to
Canada’s case,  (e) “Forcibly transferring children of the group to
another group,”  that the IRS was eventually abandoned in the 1980s,
over three decades after the Genocide Convention.  Canada’s first
apology for some of the impacts of IRS came in 1997, nearly another
decade later, and a second more specific apology was issued in 2008. In
the same year the Indian Residential Schools Survivors Settlement
Agreement (IRSSSA) was operationalized. It established a Truth and
Reconciliation Commission (TRC) to document the testimonies of
survivors.  

The IRSSSA and TRC as launched by the Canadian government,
however, was a process which sought to extinguish Indigenous Nations’
right to reparations without acknowledging the full dimension of the
crimes (genocide, crimes against humanity, forced assimilation)
committed against them.  Instead it offered individual claimants
compensation for personal injuries and abuse, establishing a ceiling limit
for payments, and requiring a written “opt-out” procedure for those who
spurned such paltry acknowledgements of the vastness of the damages
visited not only upon themselves but upon their nations.  Many who
accepted the compensation payments were not informed of their legal
rights by the state-funded counsel which uniformly advised them to do
so.

The TRC only addressed the personal injuries of individuals (including
de-culturization, sexual abuse and even sterilization, mental and
emotional humiliation, and torture).  It ignored the larger issue of Canada’
s attempted genocide of Indigenous nations through  policies of child
seizure and forced assimilation, which effectively attacked and sought to
destroy the very existential bases of these nations themselves:  the inter-
generational transmission of their unique histories, cultures, languages,
and traditional and spiritual beliefs.  

Most human rights experts agree that Truth and Reconciliation is not an
appropriate remedy for people who have been the victims of genocide
with respect to their genocidal perpetrators. Just as it would have been
unthinkable to ask the Jews to enter into a Truth and Reconciliation
process with their Nazi genocidaires, similarly a TRC falls far short of the
mark in addressing the genocidal actions perpetrated against
indigenous peoples by Canada.  Where in the case of the Jews, the
Nuremberg Tribunal was established to address that genocidal crime,
and as a result of it, Reparations are still being paid to Jews today both
individually and to Israel as presumed parens patriae, similarly this
precedent should be applied in the case of Canada, making redress due
not just by compensation to individuals but by reparations to the
Indigenous Nations themselves, who more directly than in the case of
the German Jews and the new state of Israel, are the parens patriae to
whom such are owed.

Canada did not pay “reparations” -- as the Permanent Forum has termed
the payments under the Indian Residential Schools Survivors’
Settlement Agreement -- to the Indigenous Peoples for the crimes
against their nations exacted in the Indian Residential Schools. Canada
paid compensation to individuals. That is, they paid compensation only
to those individuals who were still alive in 2005 – not to the orphans,
widows, parents and extended families of those who died either in the
schools or because of the trauma experienced in the schools which
directly caused their later deaths in substance abuse related accidents,
suicide and murder.

Nor has Canada ceased its ongoing policy of forced assimilation,
pursued next through the widespread and continuing removal of
children from their families and communities and their placement with
non-native families; through the present day BC Treaty Process seeking
to extinguish Indigenous land and sovereignty rights; the Aboriginal
Horizontal Framework which aims to municipalize Indigenous rights;
and even more recently through legislation now being swiftly pushed
through Parliament by the Harper government to the same effect:  the
denial of the right of self-determination of Indigenous Peoples.

Indigenous Peoples have cases against Canada which should be
resolved in an international setting.  But who can hear the case of
complaints by Indigenous Peoples against states?  Seeking such a
hearing, IHRAAM  submitted a petition to the Inter-American Commission
on Human Rights (IACHR), seeking its ruling on an individual Líl’wat
mother’s right not to have her children seized by Canada when the Líl’
wat have no treaty with Canada, and therefore Canada has no
jurisdiction over them.  IHRAAM argued that because it was impossible
to raise in Canadian courts the jurisdictional issue of whether Canada
had lawful jurisdiction over Líl’wat families and children, and the right to
make the policy, laws and enforcement resulting therefrom, Ms.
Edmonds could not get a fair trial in Canadian courts. Not only could the
jurisdiction issue not be raised due to the legal principle of Nemo Potest
Esse Simul Actor et Judex, but also the inability to do so had been
empirically proved over a history of actual attempts to raise it.The IACHR
has supported this Petition by asking Canada to respond four times to
the initial Petition and subsequent IHRAAM Observations on Canada’s
responses, and Canada has complied.  However Canada has since failed
to make a fifth response to the most recent IHRAAM Observation, as
requested by the IACHR. Canada has been claiming that the IACHR
cannot hear the case.  At this point in time IHRAAM has not heard further
from the IACHR; the case has neither been admitted by the IACHR nor
denied admission.  While the IACHR has elected to send a representative
to visit Canada, this does not remove from the table this pressing
question which we must reiterate:  who can hear complaints by
Indigenous Peoples against states?  

Indigenous Peoples have the right to self-determination. This right is
guaranteed to Peoples by Article 1 of the International Covenant on Civil
and Political Rights. The Indigenous are Peoples. Article 1 does not
restrict this right only to some - it does not say: All Peoples except
Indigenous Peoples have a right of self-determination. The efforts of
state governments to impose this exemption clearly violate one of the
most basic principles of international law: that of non-discrimination.

But the Human Rights Committee, mandated under the International
Covenant on Civil and Political Rights to address grievances submitted
“by individuals” via its Optional Protocol, is now widely understood to
have effectively washed its hands of grievances related to Article 1 of the
ICCPR.  Further, it is not possible to raise this issue under the Genocide
Convention as there is no monitoring body for same, and TO DATE
indigenous nations cannot approach the International Court of Justice,
the mechanism which addresses state vs. state disputes, though the
Genocide Convention states in Article 9 that “Disputes between the
Contracting Parties relating to the interpretation, application or fulfilment
of the present Convention, including those relating to the responsibility
of a State for genocide or any of the other acts enumerated in Article 3,
shall be submitted to the International Court of Justice at the request of
any of the parties to the dispute.”  Must indigenous peoples await the
unlikely event that perpetrator states will themselves bring the issue to
the ICJ, since Indigenous Peoples presently have no access?  Should
the ICJ be pressed to broaden its mandate to include them?

Alternatively, IHRAAM proposes that a fast-tracked process be
undertaken to create a binding Convention to implement the DRIP within
five (5) years, one which must be created in full partnership with
indigenous experts. The resultant Convention on the Rights of
Indigenous Peoples should mandate the existence of a Committee set
up to monitor State Parties’ compliance. An Optional Protocol attached
thereto should provide for the Committee (CCRIP) to receive Complaints
against States by Indigenous Peoples and Individuals.
IHRAAM interventions to the
UN Permanent Forum on
Indigenous Issues,

May, 2012

REPORT:  IHRAAM at the 12th
Session of the UN Permanent
Forum on Indigenous Issues,
New York City, 2013

Agenda Item 3 - Doctrine of Discovery:
The extent of violence against indigenous
women and girls

Agenda Item 6 -
Rights of indigenous peoples to
food and food sovereignty

May 2011

Lil'wat attendance at PFII as
IHRAAM Representatives