JUL 9TH SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST 2020 A.D.E.
Respectfully Published By : RALPH CHARLES GOODWIN : SIPO Ambassador-at-Large XXII
Private 1 250 709 1809 Mobile
By : Tl’ul’thut Robert Morales : Hul’qumi’num Treaty
Group
¥ Without question, the Doctrine’s
most important principle, its central animating idea, is the principle of
extinguishment. Williams
¥ This Doctrine of Extinguishment will
typically originate in a language of racism and religious and cultural
intolerance which regards indigenous peoples as savage, backwards, and
inferior, and therefore an obstacle to the progress and development of a
superior form of civilization, the non-indigenous nation-state. Williams
¥ Under this principle, the colonizing
State asserts the power to extinguish indigenous peoples’ property rights in
their traditional lands and their rights to self-determination in those lands.
Under the Doctrine, the State also has the power, in essence, to extinguish our
languages and religions, and even our existence by recognizing some, and not
recognizing other indigenous peoples as being indigenous. The State, under this
power of extinguishment, can even terminate that very act of recognition if it
so desires with impunity. Williams
¥ What has impacted and continues to
impact Indigenous nations and peoples is not so much the idea of “discovery,”
but the centuries of treating the domination and dehumanization of originally
free nations and peoples as legitimate.
¥ The Doctrine of Christian Discovery
and Domination refers to patterns of thought and dogma used to legitimize the
domination of originally free and independent nations and peoples. Williams
Foundation
for European nations policy of denial and beginning of international law
¥ In 1095, at the beginning of the
Crusades, Pope Urban II issued an edict-the Papal Bull Terra Nullius (meaning
empty land). It gave the kings and princes of Europe the right to "discover"
or claim land in non-Christian areas.
¥ The New World, on paper, was legally
"vacant"--terra nullius or vacuum domicilium in Latin.
¥ "We grant you [Kings of Spain
and Portugal] by these present documents, with our Apostolic Authority,
full and free permission to invade, search out, capture, and subjugate the
Saracens and pagans and any other unbelievers and enemies of Christ wherever
they may be, as well as their kingdoms, duchies, counties, principalities, and
other property [...] and to reduce their persons into perpetual slavery. ”
¥ This policy was extended in 1452
when Pope Nicholas V issued the bull Romanus Pontifex, declaring war against
all non-Christians throughout the world and authorizing the conquest of their
nations and territories.
¥ These edicts treated non-Christians
as uncivilized and subhuman, and therefore without rights to any land or
nation. Christian leaders claimed a God-given right to take control of all
lands and used this idea to justify war, colonization, and even slavery.
¥ This policy was extended in 1452
when Pope Nicholas V issued the bull Romanus Pontifex, declaring war against
all non-Christians throughout the world and authorizing the conquest of their
nations and territories.
¥ These edicts treated non-Christians
as uncivilized and subhuman, and therefore without rights to any land or
nation. Christian leaders claimed a God-given right to take control of all
lands and used this idea to justify war, colonization, and even slavery.
¥ Upon his return to Europe in 1493,
Pope Alexander VI issued the bull Inter Cetera, granting Spain the right to
conquer the lands that Columbus had already "discovered" and all
lands that it might come upon in the future.
¥ ** This decree also expressed the
Pope's wish to convert the natives of these lands to Catholicism in order to
strengthen the "Christian Empire."
¥ The Valladolid Controversy was
organized by King Charles V
(grandson of Ferdinand and Isabella) to give an answer to the question whether
the Native
Americans were capable of self-governance and capable of ownership of
property.
• The Controversy is set in the year
1550, a half-century into the Spanish conquest of the New World. In a monastery
in the Spanish city of Valladolid, three priests and a philosopher meet to
resolve a thorny issue: do the native of the Americas have souls, and should
they be treated with the same respect as Europeans?
¥ Sepúlveda on one side
¥ Las Casas and de Vitoria on other side
¥ Sepúlveda reasoned, the Indians were
a barbarian race whose natural, inferior condition entitled the Spaniards to
wage war on them. As Sepúlveda put it, “being slaves by nature, [the Indians],
uncivilized, barbarian and inhuman, refuse to accept the rule of those
civilized [the Spaniards] and with much more power than them.”
¥ Las Casas: Long before the Indians heard the
word "Spaniard", they had properly organized states, states wisely
ordered by excellent laws, religion and custom. They cultivated friendships, came
together in common fellowship, lived in populous cities. In fact, they were
governed by laws that surpass our own at many points.
¥ Francisco de Vitoria introduced the
topic of indigenous peoples‘ rights into the dialogue of international law in
his 1532 lecture, "On the Indians Lately Discovered."''
Central to Vitoria's philosophy, was that "certain basic rights inhere in
men as men . ..by reason of their humanity.' Vitoria's views on Indian rights were
subsequently embraced by the papacy and the Spanish Crown.
¥ In Sublimis Deus, Paul III
unequivocally declares the indigenous
peoples of the Americas to be rational beings with souls. Its principles
eventually became the official position of Charles V,
Holy Roman Emperor and King
of Spain, although it was often ignored by the colonists and conquistadores themselves
Extinguishment
by Judicial decisions and political positions :
Johnson v. Mcintosh : Leading To domestic policy of denial
¥ In Chief Justice Marshall's words:
[T]he character and religion of [the New World's] inhabitants afforded an
apology for considering them as a people over whom the superior genius of
Europe might claim an ascendancy. To leave them in possession of their country
was to leave the country a wilderness. [A]griculturalists, merchants, and
manufacturers, have a right, on abstract principles, to expel hunters from
[their] territory .... [E]xcuse, if not justification, [could be found]
in the character and habits of the people whose rights ha[d] been wrested from
them. The potentates of the Old World ... made ample compensation to the
inhabitants of the new, by bestowing upon them civilization and Christianity.
....
¥ Importantly, the recognition of
Indian ownership led Vitoria to conclude that Europeans could not acquire title
to Indian lands by mere "discovery," since the Doctrine of Discovery
only applied to lands that belonged to "nobody":
¥ Yet in Johnson, Marshall
disregarded the principles announced by Vitoria, and applied the Doctrine of
Discovery as if the Indians were "nobody," under Vitoria's thesis.
¥ By denying the Indians' ownership
rights in their lands and reducing their status from "true owners" to
"occupants," Marshall disregarded accepted principles of the Law of
Nations.
¥ Marshall further deviated from the
Law of Nations in his treatment of title by conquest and the obligations of
successive sovereigns to the conquered. ' Marshall recognized that under the
general rule, the conquered should be incorporated into the conqueror's society
and "the rights of the conquered to property should remain unimpaired ..
,
¥ The real conquest was on paper, on
maps and in laws. What those maps showed and those laws said was that Indians
had been "conquered" merely by being "discovered." As put
by Supreme Court Chief Justice John Marshall in the case of Johnson v.
McIntosh,2 "[h]owever extravagant the pretention of converting the
discovery of an inhabited country into conquest may appear, if the principle
has been asserted in the first instance ... if a country has been
acquired and held under it; .. .it becomes the law of the land, and cannot be
questioned."
Canada courts adopt Johnson beginning with St
Catherine’s Milling
According
to the Chancellor, Indians at the time of discovery were nomadic "heathens
and barbarians" who lacked "any proprietary title to the soil . .
. . In support of this view, Boyd cited a 1675 legal opinion in
which eminent English lawyers declared that the discovery of barbarian lands
gave the discovering nation the "Right of Soyle & Govermt of
place. . . ." Boyd then asserted that in Johnson v. McIntosh,
Chief Justice Marshall "has concisely stated the same law of the
mother country, which the United States inherited, and applied with such
modifications as were necessitated by the change of government to their
dealings with the Indians."
St Catherine Milling- Judicial Committee of the Privy
Council
¥ Lord Watson, on behalf of the
Council, rejected the notion that the Ojibway had been "the owners in fee
simple of the territory which they surrendered" and instead held that the
Crown "has all along had a present proprietary estate in the land, upon
which the Indian title was a mere burden."
Rather than constituting an ownership right, "the tenure of the
Indians was a personal and usufructuary right, dependent upon the good
will of the Sovereign.”
¥ R. v. Syliboy (1929) : 1 D.L.R. 307 (Canada)
¥
“…But
the Indians were never regarded as an independent power. A civilized nation
first discovering a country of uncivilized people or savages held such country
as its own until such time as by treaty it was transferred to some other
civilized nation. The savages’ rights of sovereignty, even of ownership, were
not recognized. Nova Scotia had passed to Great Britain not by gift or purchase
or even by conquest of the Indians but by treaty with France, which had
acquired it by priority of discovery and ancient possession, and the Indians
passed with it….”
Canada’s Defense in Mikmaq Tribal Society v. Canada UN Human Rights Committee (1980)
“International,
American and Canadian law do not recognize treaties with North American Native
People as international documents confirming the existence of these tribal
societies as independent and sovereign states. These treaties are merely
considered to be nothing more than contracts between a sovereign and a group of
its subjects”
¥ CALDER
: [T]hat on discovery or on conquest the aborigines of newly-found lands were
conceded to be the rightful occupants of the soil, with a legal as well as a
just claim to retain possession of it and to use it according to their own
discretion, but their rights to complete sovereignty as independent nations
were necessarily diminished and their power to dispose of the soil on their own
will to whomsoever they pleased was denied by the original fundamental
principle that discovery or conquest gave exclusive title to those who made it
¥ SPARROW SCC : It
is worth recalling that while British policy towards the native population was based
on respect for their right to occupy their traditional lands, a proposition to
which the Royal Proclamation of 1763 bears witness, there was from the outset
never any doubt that sovereignty and legislative power, and indeed the
underlying title, to such lands vested in the Crown; see Johnson v. M'Intosh
¥ DELGAMUUKW SCC : This
review of the general principles underlying the issue of aboriginal title to
land brings us to the specific requirements for title set out in Delgamuukw. To
establish title, claimants must prove "exclusive" pre-sovereignty
"occupation" of the land by their forebears: per Lamer C.J., at para.
143.
¥ Canadian
courts have applied Marshall’s “discovery” theory in support of the Crown’s
ultimate title to the land but have neglected Marshall’s finding that
aboriginal peoples retained a form of internal sovereignty.
¥ TSILHQOT’IN Decision BCCA 2011 : The
basic concepts underlying claims of Aboriginal title and Aboriginal rights are
straightforward. First Nations occupied the land that became Canada long before
the arrival of Europeans. As the trial judge noted at para. 592, “Aboriginal
nations were not recognized as nation states by the European nations colonizing
North America”. European explorers considered that by virtue of the “principle
of discovery” they were at liberty to claim territory in North America on
behalf of their sovereigns (see Guerin v. The Queen, [1984] 2 S.C.R. 335 at
378). While it is difficult to rationalize that view from a modern perspective,
the history is clear. As was said in Sparrow at 1103:
¥ [W]hile
British policy towards the native population was based on respect for their
right to occupy their traditional lands, … there was from the outset never any
doubt that sovereignty and legislative power, and indeed the underlying title,
to such lands vested in the Crown. [Citations omitted.]
¥ There
is a need to search out a practical compromise that can protect the aboriginal
traditions without unnecessarily interfering with Crown sovereignty and the
well being of all Canadians. As I see it, an overly-broad recognition of
Aboriginal title is not conducive to these goals.
JOSEPH TRUTCH circa
June 1870
The 19th
Century Colonial Era
“I think they
are the ugliest and laziest creatures I ever saw, and we should, as soon think of being afraid of our dogs as
of them.”
Letter from
Joseph Trutch to his wife Charlotte Trutch, expressing his views on the Indians
of the Oregon Territory, 23 June
1850 (Trutch Papers)
“The Indians
really have no right to the lands they claim, nor are they of any actual value
or utility to them; I cannot see why they should either retain these lands to
the prejudice of the general interests of the Colony, or be allowed to make a
market of them either to Government or to individuals.”
At the G20 conference 2009, Stephen Harper claims Canada has
“no history of colonialism”
¥ MABO : The idea that
land which is in regular occupation may be terra nullius is unacceptable, in
law as well as in fact. Even the proposition that land which is not in regular
occupation may be terra nullius is one that demands scrutiny; there may be good
reason why occupation is irregular.
¥ The
theory that the indigenous inhabitants of a "settled" colony had no
proprietary interest in the land thus depended on a discriminatory denigration
of indigenous inhabitants, their social organization and customs. As the basis
of the theory is false in fact and unacceptable in our society, there is a
choice of legal principle to be made …
¥ The
fiction by which the rights and interests of indigenous inhabitants in land
were treated as non existent was justified by a policy which has no place in
the contemporary law of this country. The expectations of the international
community accord in this respect with the contemporary values of the Australian
people.
¥ Canada’s
Original Position on the UN Declaration
¥
¥ "...Canada's
position has remained consistent and principled. We have stated publicly that
we have significant concerns with respect to the wording of the current text,
including the provisions on lands, territories and resources; free, prior and
informed consent when used as a veto; self-government without recognition of
the importance of negotiations; intellectual property; military issues; and the
need to achieve an appropriate balance between the rights and obligations of
indigenous peoples, member States and third parties.”
¥ Statement
by Ambassador McNee to the General Assembly on the Declaration on the Rights of
Indigenous Peoples, 13 September 2007.
INDIGENOUS
HUMAN RIGHTS ERA
¥ Based
on recognition
¥ Reisman
opines that the original phase of "[d]ecolonization was really a demand
for law and human rights;,, in short, it was a call for universal emancipation
of the colonized.
The Case of
Awas Tingni vs. Nicaragua Decision of
the Inter-American Court
•
Nicaragua violated the right to an effective
remedy (articles 25, together with articles 1 and 2) by failing to ensure
enjoyment of the indigenous land rights that are affirmed in the Nicaraguan
Constitution and Laws.
•
Nicaragua violated the right to
property (article 21) by granting concessions to exploit the resources on Awas
Tingni traditional lands and by not titling and demarcating those lands in
favor of the community. The right to property includes the collective right of
indigenous peoples to the enjoyment of their traditional lands and natural
resources.
“…For
indigenous communities, relations to the land are not merely a matter of
possession and production but a material and spiritual element which they must
fully enjoy, even to preserve their cultural legacy and transmit it to future
generations.”
The
Case of Dann vs. the United States Decision
of the Inter-American Commission
“Where property and user rights of
indigenous peoples arise from rights existing prior to the creation of a state,
[indigenous peoples have the right to] recognition by that state of the
permanent and inalienable title of indigenous peoples relative thereto and to
have such title changed only by mutual consent between the state and respective
indigenous peoples when they have full knowledge and appreciation of the nature
or attributes of such property. This also implies the right to fair
compensation in the event that such property and user rights are irrevocably
lost.”
The Case of
the Maya Indigenous Communities of the Toledo District vs. Belize : The
Obligations of the State under Article XXIII
131. Accompanying the existence of the Maya
people’s communal right to property under Article XXIII is a correspondent
obligation on the State to recognize and guarantee the enjoyment of this right.
In this regard, the Commission shares the view of the Inter-American Court of
Human Rights that this obligation necessarily requires the State to effectively
delimit and demarcate the territory to which the Maya people’s property right
extends and to take the appropriate measures to protect the right of the Maya
people in their territory, including official recognition of that right. In the
Commission’s view, this necessarily includes engaging in effective and informed
consultations with the Maya people concerning the boundaries of their
territory, and that the traditional land use practices and customary land
tenure system be taken into account in this process.
Case of the
Saramaka People v. Suriname November 28, 2007
•
105. The Court observes that although
so-called judge-made law may certainly be a means for the recognition of the
rights of individuals, particularly under common-law legal systems, the
availability of such a procedure does not, in and of itself, comply with the
State’s obligation to give legal effect to the rights recognized in the
American Convention. That is, the mere
possibility of recognition of rights through a certain judicial process is no
substitute for the actual recognition of such rights. In any case, the right of
the members of the Saramaka people in particular, or members of indigenous and
tribal communities in general, to collectively own their territory has not, as
of yet, been recognized by any domestic court in Suriname.
•
105. The Court observes that although
so-called judge-made law may certainly be a means for the recognition of the
rights of individuals, particularly under common-law legal systems, the
availability of such a procedure does not, in and of itself, comply with the
State’s obligation to give legal effect to the rights recognized in the
American Convention. That is, the mere
possibility of recognition of rights through a certain judicial process is no
substitute for the actual recognition of such rights. In any case, the right of
the members of the Saramaka people in particular, or members of indigenous and
tribal communities in general, to collectively own their territory has not, as
of yet, been recognized by any domestic court in Suriname.
Case of the
Sawhoyamaxa Indigenous Community v. Paraguay
•
The following conclusions are drawn
from the foregoing: 1) traditional possession of their lands by indigenous
people has equivalent effects to those of a state-granted full property title;
•
2) traditional possession entitles
indigenous people to demand official recognition and registration of property
title;
•
3) the members of indigenous peoples
who have unwillingly left their traditional lands, or lost possession thereof,
maintain property rights thereto, even though they lack legal title, unless the
lands have been lawfully transferred to third parties in good faith; and … 4)
the members of indigenous peoples who have unwillingly lost possession of their
lands, when those lands have been lawfully transferred to innocent third
parties, are entitled to restitution thereof or to obtain other lands of equal
extension and quality. Consequently, possession is not a requisite conditioning
the existence of indigenous land restitution rights.
International Human Rights in Protection of Indigenous Peoples Rights
International Human Rights in Protection of Indigenous Peoples Rights
Hul’qumi’num
Nations Petition to IACHR : Hul’qumi’num
Treaty Group v. Canada
•
The State’s unequivocal position is
that private land is not on the table in the BCTC process. BC held a
referendum, which BC says is still their position and mandate, stating that
private lands are not included in the BCTC process. Canada has clearly said that
compensation is not on the table in their Comprehensive Claims policy.
•
The result of these two positions is
that these lands are not on the table, either for return or fair compensation,
except on the so called “willing seller willing buyer” basis.
•
ADMISSABILITY
RULING : In this ruling, the IACHR found that “by failing to
resolve the HTG claims with regard to their ancestral lands, the BCTC process
has demonstrated that it is not an effective mechanism to protect the right [to
property] alleged by the alleged victims”. Indeed, examining the government’s
position that if a First Nation does not wish to accept its terms negotiating,
that it can litigate, the IACHR noted that “there is no due process of law to
protect the property rights of the HTG to its ancestral lands”
•
The IACHR observed that “the legal
proceedings mentioned above [the Canadian court cases on aboriginal title] do
not seem to provide any reasonable expectations of success, because Canadian
jurisprudence has not obligated the State to set boundaries, demarcate, and
record title deeds to lands of indigenous peoples, and, therefore, in the case
of HTG, those remedies would not be effective under recognized general
principles of international law.”
The
20th Century Indigenous Human Rights Era
UN Committee on the Elimination of Racial Discrimination General Recommendation No. 23 on Indigenous Peoples
(1997)
UN Committee on the Elimination of Racial Discrimination General Recommendation No. 23 on Indigenous Peoples
(1997)
“In
many regions of the world indigenous peoples have been, and are still being,
discriminated against and deprived of their human rights and fundamental
freedoms … they have lost their land and resources to colonists, commercial
companies and State enterprises. Consequently, the preservation of their
culture and their historical identity has been and still is jeopardized.”
The
20th Century Indigenous Human Rights Era
: UN HUMAN RIGHTS COMMITTEE : Comments
on Canada (1999)
“The
Human Rights Committee recommended that Canada reform its laws and internal
policies to guarantee the full enjoyment of rights over land and resources for
the indigenous people of Canada.
Additionally, the Committee recommended that Canada abandon “the
practice of extinguishing inherent aboriginal rights … as incompatible with
article 1 of the Covenant. “
The
21st Century Indigenous Rights Era : UN Committee
on Economic, Social and Cultural Rights : Concluding Observations: Canada
(May 22, 2006), at para. 16.
“The
Committee, while noting that the State party has withdrawn, since 1998, the
requirement for an express reference to extinguishment of Aboriginal rights and
titles either in a comprehensive claim agreement or in the settlement
legislation ratifying the agreement, remains concerned that the new approaches,
namely the “modified rights model” and the “non-assertion model”, do not differ
much from the extinguishment and surrender approach.”
UNITED
NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE
Article
27
States shall establish and implement, in
conjunction with indigenous peoples concerned, a fair, independent, impartial,
open and transparent process, giving due recognition to indigenous peoples’
laws, traditions, customs and land tenure systems, to recognize and adjudicate
the rights of indigenous peoples pertaining to their lands, territories and resources,
including those which were traditionally owned or otherwise occupied or used.
Indigenous peoples shall have the right to participate in this process.
Article
28
Indigenous
peoples have the right to redress, by means that can include restitution or,
when this is not possible, of a just, fair and equitable compensation, for the
lands, territories and resources which they have traditionally owned or
otherwise occupied or used, and which have been confiscated, taken, occupied,
used or damaged without their free, prior and informed consent.
Report
of the UN Special Rapporteur on the situation of the human rights and
fundamental freedoms of indigenous peoples, S. James Anaya (2008)
“Accordingly,
the Declaration does not attempt to bestow indigenous peoples with a set of
special or new human rights, but rather provides a contextualized elaboration
of general human rights principles and rights as they relate to the specific
historical, cultural and social circumstances of indigenous peoples. …From this
perspective, the standards of the Declaration connect to existing State
obligations under other human rights instruments.”
Indigenous
Human Rights Under International Law
¥ International
system
¥ United
Nations
¥ General
Human Rights
¥ Declaration
on the Rights of Indigenous Rights
¥ Organization
of American States
¥ OAS
Charter
¥ American
Declaration on the Rights and Duties of Man
Sources Of International Law
¥ Hard
law – binding on States:
¥ Treaties/covenants/conventions
– countries must take steps to
sign/ratify
¥ Customary
international law – applies to all countries
¥ Soft
law – not directly binding on their own:
¥ General
assembly resolutions
¥ Declarations
¥ Reports/comments
of UN committees
¥ Full
and effective implementation of the Declaration will extinguish the ability of
governments to extinguish us- Williams
JUL 9TH SINCE TIME BEGAN : salus populi suprema est lex - the right of the people is the supreme law : IN TRUTH WE TRUST 2020 A.D.E.
