Aboriginal Rights

Update, Walking With Our Sisters First Exhibit Opening October 2

Victoria Sweet

The Walking With Our Sisters Exhibit will open to the public on October 2, 2013 at the University of Alberta in Edmonton.

For anyone not familiar with this exhibit, it originated with Métis artist Christi Belcourt, who was looking for a way to raise awareness about the 600+ missing or murdered Indigenous women in Canada. Her original plan was to have 600 moccasin vamps (uppers) made to symbolically represent these women. She sent out requests to the community to see if anyone would be willing to donate vamps to this project. The response to her call has far exceeded her expectations. The final number of vamps that have been created and donated to the project is now 1,723. This overwhelming response is a testament to the impact violence against women has had on Indigenous communities, not only in Canada but in the United States and other places around the world.

A site has been created with information about the project, the schedule of exhibits, pictures of the donated vamps, media releases, and more. Link here.

Previous coverage here.

At this time, Canada has not yet positively responded to requests for an inquiry into the disappearances and unsolved murders of these women.

This project is about these women, paying respect to their lives and existence on this earth.  They are not forgotten.  They are sisters, mothers, daughters, cousins, aunties, grandmothers, friends and wives.  They have been cared for, they have been loved, and they are missing.

Press Release on Aboriginal Water Rights & Title

Kate Fort

Here. From the Union of BC Indian Chiefs.

Separate story here from APTN about a blockade by the Tahltan Nation in BC to protect headwaters.

Alta Outcome Document Released in Preparation for 2014 World Conference on Indigenous Peoples

Victoria Sweet

Indigenous peoples from around the world today issued a common position for the high-level plenary meeting of the United Nations General Assembly, also known as the World Conference on Indigenous Peoples, to be held at New York Headquarters from 22 to 23 September 2014.

The “Alta Outcome Document” is a set of recommendations adopted by the Global Indigenous Preparatory Conference in Alta, Norway.  Indigenous peoples from the seven regions of the world — Asia; Africa; North America; Central and South America and the Caribbean; Eastern Europe, Russian Federation, Central Asia and Transcaucasia; the Arctic; and the Pacific, as well as the Indigenous Women and Youth Caucuses — gathered in Alta at a global meeting organized by the Saami Parliament of Norway.

“This is a crucial step leading up to the World Conference,” said Paul Kanyinke Sena, Chair of the United Nations Permanent Forum on Indigenous Issues.  “By formulating a common position, indigenous peoples have given their voices added strength and relevance in the dialogues that will make up the World Conference.”

Link to press release here.

Link to a pdf copy of the document here.

 

Q&A with James Anaya on Implementing Prior Consent with Indigenous Peoples

Victoria Sweet3 Comments

Most of the questions relate to implementation of this standard in Latin America, but his answers to the final two questions were particularly interesting to me, and applicable to many nations that are being called on to implement the prior consent standard.

Q: Do you think the state would lose its sovereignty if an indigenous community has the last word on whether or not an investment project can be undertaken on their territory?

A: The state does not lose its sovereignty if it respects human rights or indigenous rights. It has to comply with these rules to respect those rights; the state cannot do whatever it wants.

I would say that the respect of these rights is a way of ensuring that this sovereignty is exercised. When the state respects human rights, it exercises its sovereignty, because it is acting in favour of its citizens and peoples.

Q: Nevertheless, there has been a loss of trust in governments. What can be done to ensure legitimate consultations and to open up dialogue?

A: The mistrust and prejudice need to be overcome. It is a matter of creating open processes where indigenous peoples can voice their opinions and influence decisions, and where there is the necessary will to seek consensus.

The problem is that sometimes there is a belief that consent is about saying yes or no, about who wins. Consent is linked to consultation; the purpose of consultation is to reach consent, to reach consensus. It is not a question of one side imposing its opinion on the other.

Alberta First Nations Band Win Right to Trial Over Oil Sands’ Effect on Treaty Rights

Victoria Sweet1 Comment

A small First Nations band in Alberta has racked up a big win against the energy industry, clearing the way for a trial over whether its treaty rights are being infringed upon as industrial development such as the oil sands expands.

The Beaver Lake Cree Nation argues the so-called cumulative effects of oil sands and other industries such as mining and forestry violated their treaty rights. The provincial and federal governments grant permits which allow for development. Beaver Lake Cree Nation launched a legal battle five years ago and now Edmonton and Ottawa have lost their attempt to have it tossed out.

Full article here.

MSU International Law Review Symposium on the Arctic

Matthew L.M. Fletcher1 Comment

Our own Victoria Sweet — the 2013-14 ILPC Fellow — has organized an amazing legal symposium — “Battle for the North: Is All Quiet on the Arctic Front?” She put together an amazing line-up of international scholars — and the leader of the US Coast Guard will unveil a new strategic approach to the Arctic at the conference.Polar Bear

Here is the symposium website. And here is the description:

This symposium will highlight the current concerns and questions surrounding the Arctic. The event will raise awareness of and encourage discussion about various topics such as: international security concerns; indigenous people in the Arctic region; environmental law; regulation, governance and management of Arctic lands and resources; exploration, exploitation, and transportation of oil, gas, and minerals; and the law of the sea.

Papers will be published in the Michigan State International Law Review.

Agenda:

Thursday, February 21, 2013
5:00 p.m. Check In: Kellogg Hotel & Conference Center, Big Ten C
5:30 p.m. Reception
6:00 p.m. Dinner
7:00 p.m. Opening Remarks
Victoria Sweet, Executive Editor, Michigan State International Law Review

Bruce W. Bean, Professor and Michigan State International Law Review Faculty Advisor, Michigan State University College of Law, International Law Review Faculty Advisor
7:15 p.m. Keynote
Lawson Brigham, “The New Maritime Arctic: Global Connections and Complex Challenges”
7:45 p.m. The Impacts of Climate Change
Moderator: Jennifer Carter-Johnson, Assistant Professor, Michigan State University College of Law
Sumudu Atapattu, “Climate Change, Indigenous Peoples and the Arctic: The Changing Horizon of International Law”
Avi Brisman, “Climate Change and the Future of the Arctic: Cultural and Environmental Considerations”
8:30 p.m. Closing Remarks
Friday, February 22, 2013
8:00 a.m. Breakfast and Registration: MSU College of Law Castle Boardroom
8:45 a.m. Opening Remarks
Dean Joan W. Howarth, Dean, Michigan State University College of Law
9:00 a.m. Keynote
Rear Admiral Frederick J. Kenney Jr., “The U.S. Coast Guard and the Challenge of the Arctic”
9:35 a.m. Arctic Governance
Moderator: Michael Lawrence, Associate Dean, Michigan State University College of Law
Waliul Hasanat, “Reforming the Arctic Council against Increasing Climate Change Challenges in the North”
Tanja Joona, “ILO Convention 69 and the Governance of Indigenous Nordic Lands”
Tony Penikett & Adam Goldenberg, “Devolution & Democracy – Equal Citizenship in Canada’s North”
Danielle Sibener Pensley, “Subsistence as Resistance: Implications of Environmental Ethics for Property Law”
10:45 a.m. Coffee Break
11:05 a.m. Shipping & The Law of the Sea
Moderator: Beverly Moran, Visiting Professor, Michigan State University College of Law, (visiting from Vanderbilt University College of Law)
Erik Franckx, “The Northern Sea Route Shipping Season 2012: A First Assessment”
Donald R. Rothwell, “International Law and Arctic Shipping”
Ingvild Jakobsen, “The Adequacy of the Law of the Sea and International Environmental Law to the Arctic Ocean”
12:05 a.m. Lunch
12:40 p.m. Keynote
Timo Koivurova, “Final Battle over the ‘Final’ Hydrocarbon Province – the Arctic”
1:15 p.m Indigenous Peoples’ Resources and Lands
Moderator: Wenona Singel, Associate Professor, Michigan State University College of Law
Dorothee Cambou, “Control over Resources: A Prerequisite for the Realization of the Arctic Indigenous Right to Self-Determination”
Tim Heleniak, “The Migration of Arctic Populations”
Susann Funderud Skogvang, “Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas: Examples from Sami Areas in Norway”
Rutherford Hubbard, “Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development”
2:25 p.m. Coffee Break
2:45 p.m. Natural Resources
Moderator: Noga Morag-Levine, Professor, Michigan State University College of Law
Andrew van Wagner, “A Heating Competition for Unclaimed Resources”
Vladimir Gladyshev, “Delimitation Issues: Cutting up the Arctic Pie”
Nikolas Sellheim, “The Neglected Tradition? – The Crafting of the EU Seal Products Ban and Commercial Sealing”
Betsy Baker, “Governance of the Marine Arctic for Resource Development”
3:55 p.m. Coffee Break
4:15 p.m. Arctic Security
Moderator: John Reifenberg, Professor, Michigan State University College of Law
Adele Buckley, “Arctic Nuclear-Weapon-Free Treaty Ratification by Non-Nuclear Weapons States Models Cooperation and Presses Nuclear Weapon States to New Strategy”
Natalia Loukacheva, “Polar Law, Arctic Security and Geo-Political Trends”
Zhixiong Huang, “Governance of the Arctic: The Role of China”
5:15 p.m. Closing Remarks

Brookings Institute Recent Scholarship on Arctic Indigenous People, Internal Displacement, and Climate Change

Victoria Sweet

From the Brookings Institute site:

“For thousands of years, Arctic peoples have migrated in response to changing environmental conditions. But today climate change is putting unprecedented pressure on those indigenous communities. Temperatures are rising much faster in the Arctic than in the rest of the world, raising questions about the extent to which significant numbers of indigenous people will move away from their traditional habitats and whether they will be able to maintain their cultures and livelihoods. For the 400,000 indigenous people in the Arctic these are not only questions of adaptation but also of culture and survival.”

The issue of internal displacement also lead to questions of governmental and administrative responsibilities. If an Indigenous community is displaced because of rising waters, will the government set aside new lands? Where would they be? Would current subsistence and cultural needs also be considered? Some serious concerns for communities in Alaska as well as Indigenous communities around the world.

Here is the link to the articles:

http://www.brookings.edu/events/2013/01/30-arctic-displacement-climate-change

Arctic Law Symposium, Michigan State University College of Law

Victoria Sweet

The Michigan State International Law Review’s upcoming symposium “Battle for the North: Is All Quiet on the Arctic Front?” has received international attention in the Arctic Law Thematic Network Newsletter. What is the Arctic Law Thematic Network?

From the Arctic Law Thematic Network site:
From 2013, Arctic Law Thematic Network (ALTN) publishes a Newsletter with latest news from the Network partners – information on publications, conferences, master and doctoral programmes, new projects, as well as news and analyses of interest for the members of the Network.

To see the newsletter see: http://www.arcticcentre.org/InEnglish/RESEARCH/The_Northern_Institute_for_Environmental_and_Minority_Law/University_of_the_Arctic_Thematic_Network_on_Arctic_Law/Newsletter_-_ALTN.iw3

For information on the symposium or to register see: http://www.law.msu.edu/battle-north/

Treaty Rights are Not Policy Matters, Guest Post by Carrie Garrow

Kate Fort3 Comments

Responding to this article, Prof. Garrow has some thoughts about the role of the Governor General (the Crown’s representative) in Canada regarding treaties. The article implies that the First Nations insistence on working with the Governor General is a misunderstanding of how the Canadian government operates today. In actuality, there are very real legal reasons for this request:

Treaty Rights Are Not Policy Matters

Prime Minister Harper’s insistence on excluding Governor-General David Johnston from talks with the First Nations leaders illustrates Canada’s degradation of First Nations’ treaty rights to a ‘policy matter.’ What Harper fails to understand is that First Nations entered into treaties with Great Britain.  Moreover, Canada refuses to acknowledge many of these treaties signed by Great Britain and the First Nations, claiming they have not been implemented or sanctioned by Canadian legislation.  Thus a representative of the signing country, Great Britain, is imperative at any discussion regarding treaty rights.  Harper cannot claim Canada is not bound by the treaties and then also claim the sovereign bound by the treaties, Great Britain, cannot attend the meetings.  Furthermore, Canada endorsed the United Nations Declarations on the Rights of Indigenous Peoples, which states that Indigenous peoples have the right to recognition and enforcement of treaties.  Yet Harper repeatedly refuses to put forth a mechanism to allow Canada to recognize First Nation treaty rights.  Instead he continually attempts to relegate treaties rights to the status of ‘policy matters.’  Given that First Nations predated the formation of Canada, have inherent sovereignty as recognized in treaties, and are now incorporated into the Canadian Constitution, they are above and beyond simple policy matters.  If Canada decides not to honor its legal obligations by implementing First Nations’ treaty rights, then First Nations have no option but to demand a meeting with Great Britain and Canada, to hold Canada accountable.  Unfortunately, Harper and the Canadian government do not understand the legal foundation of First Nations and as a result, First Nations’ sovereignty and Chief Spence’s life hangs in the balance.

Ontario Appeals Court Refuses to Extradite Aboriginal Drug Couriers to US because of Harsh Sentences and Prisoner Abuses

Matthew L.M. Fletcher

Here is the opinion in :

AG Canada v Leonard & Gionet

The court’s summary:

L and M were Aboriginal Canadians whose extradition was sought by the United States of America to stand trial on drug charges. Their aboriginality and the systemic factors identified by the Supreme Court of Canada in R. v. Gladue would not be considered in U.S. sentencing proceedings. Land M could both be prosecuted in Canada for the conduct that gave rise to the U.S. charges. L entered the United States with approximately 46,000 ecstasy pills. He was 18 years old at the time of the offence and had no criminal record. If convicted, he would probably receive a sentence of between 15 years, 8 months’ to 19 years, 7 months’ imprisonment with no prospect of release until 85 per cent of the sentence had been served. The U.S. prisons to which he would likely be assigned if convicted lacked culturally appropriate programs for Aboriginal inmates. If tried and convicted in Canada, L would likely receive a conditional or relatively short prison sentence. M was allegedly involved in importing oxycodone into the United States from Canada. If convicted in the United States, he faced a sentence of between six and ten years. He submitted that, in Canada, the sentencing range was three to five years and that consideration of his Aboriginal status and the Gladue principles could yield a lower sentence. L and M were committed forextradition. In considering whether to surrender them, the Minister of Justice found that their Aboriginal status and the Gladue principles were not relevant to an analysis under s. 6 of the Canadian Charter of Rights and Freedoms. He found that the Gladue factors were relevant in assessing the applicants’ claims that surrender would violate their rights under s. 7 of the Charter, but concluded that surrendering them would not shock the conscience. He also found that surrender would not be ”unjust or oppressive” under s. 44(1)(a) of the Extradition Act, S.C. 1999, c. 18. He ordered their surrender. The applicants applied for judicial review of that decision. L also appealed his committal order. [The court granted the application]