UN Human Rights Committee condemns Canadian government inaction on Lubicon land claim

By Richard Milligan

December 2005/January 2006

ON OCTOBER 17, representatives of the Lubicon Cree delivered a formal complaint to the United Nations Human Rights Committee in Geneva. The delegation sought the UN’s help to pressure the Canadian government on two demands: to return in good faith to land claim negotiations, and to cease its support for the systematic destruction of Lubicon land through illegal resource extraction for narrow corporate interests. Reiterating a similar ruling handed down15 years ago, on November 2 the Human Rights Committee reported concern that “land claim negotiations between the Government of Canada and the Lubicon Lake Band are at an impasse” even as abuses of the Lubicon’s rights continue. The Committee insists that the government must return to negotiations and further stipulates that the government “consult with the Band before granting licenses for economic exploitation of the disputed land.”

The 500-member band is situated near Lubicon Lake, in a resource rich region of northern Alberta roughly 100 km east of Peace River. Negotiations between the British Crown and indigenous groups in the region led to the creation of Treaty 8 in 1899. The Lubicon Cree, however, were not party to these negotiations, nor to the agreement that legally formalized the exchange of aboriginal lands for the establishment of reserves and other benefits. As such, the Lubicon have never ceded the aboriginal title to their traditional lands.

This has not, however, prevented the province of Alberta from granting usufructory rights to corporations who have harvested as much as $13 billion from Lubicon land in oil and gas resources alone. Logging and mining on unceded Lubicon land without their consent have decimated vital hunting and trapping grounds, seriously damaging the ecosystem upon which they depend. Ultimately, these infringements have disrupted a way of life, repeating and rehashing the practices of genocide that have transformed this continent over the last 500 years. The recent delegation to the UN claimed that as a result of the government’s (in)action, the band’s annual harvest of moose has decreased from 200 to 19, annual incomes from trapping have dropped from $5,000 to $400, and the previously self-sufficient community has been reduced to a state of poverty in which 95 percent of community members are on social assistance and many lack access to adequate housing or running water.

As early as 1939, the federal government acknowledged the failure to negotiate with the Lubicon and the need to establish legal agreements and a reserve on Lubicon territory. To this date, despite numerous gestures and promises from Ottawa, the government has yet to rectify the situation.

THE LUBICON CREE FIRST ARGUED their case before the United Nations Human Rights Committee more than 15 years ago. In 1990 the Committee reprimanded Canada for abuses of the Lubicon, citing “historical inequities… and certain more recent developments [that] threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue.” Article 27 of the International Covenant on Civil and Political Rights ensures the right of minorities “to enjoy their own culture, to profess and practice their own religion, [and] to use their own language.”

This ruling urged the government to quickly rectify the situation in the strongest language the committee could wield, according to international Aboriginal treaties lawyer Sharon Venne. The government, however, said the ruling was “deliberately vague,” and, heedless of the UNs recommendations, the provincial and federal governments have continued to facilitate economic development of the disputed territory in violation of the human rights of the Lubicon Cree.

The 1990 report also stated that the Human Rights Committee was “not persuaded’ that the “road of litigation would have represented an effective method of saving or restoring the traditional or cultural livelihood of the Lubicon Lake Band,” thus confirming the legitimacy of measures undertaken by the band to retain rights of self-determination and control of their lands through direct negotiations with companies operating in their territory and through direct actions. These direct measures began after Alberta passed retroactive legislation in the 1970s which commissioned the dismissal of the Lubicon’s (long-postponed) land claim case in a provincial court. The legislation was designed specifically as an end-run around the Lubicon’s recourse through litigation.

The underhanded move allowed enough time for the completion of an all-weather road into Lubicon territory, and by 1983 there were over 400 oil wells operating within 25 kilometers of the community. A few years later, when Alberta sold the timber rights to the Lubicon’s traditional land to transnational paper products company Daishowa in 1988, the band didn’t just wait around for the legal system to protect the trees. Lubicon leaders appealed to the company and when the machines came anyway, they were sabotaged. No one was injured, but 13 members of the Lubicon Lake community were imprisoned. The legal system had left the community with no alternative but to take direct action to preserve their way of life. When actual bodies got in the way of economic interests, the government quickly moved to confine them.

The government’s strategies should not be construed as crimes committed against a passive and disempowered community by some cruel and ruthless villain, but rather as a demonstration of how institutions of state power collude with those of capital to repeatedly and quietly disable successful attempts of Canadian citizens to protect their own internationally guaranteed rights.

The Lubicon’s next move was in Ontario in the early 1990s. Following the failure of the band’s negotiations with Daishowa to halt timber harvesting until the land claim was settled, the Toronto-based “Friends of the Lubicon” launched a very successful media campaign, which included protests and boycotts. The Friends approached roughly 50 companies in Ontario asking them to join a boycott of Daishowa’s products. All of the companies joined the boycott, with the Friends only having to resort to picketing the stores of two. The list of well-known companies who switched suppliers of paper products, resulting in as much as $5 million in lost sales for Daishowa, includes Pizza Pizza, the Liquor Control Board of Ontario, Cultures, Country Style Donuts, Mr. Submarine, Bootlegger, A&W, Kentucky Fried Chicken, Woolworth’s, Roots, Club Monaco, Movenpeck Restaurants and Holt Renfrew.

But the Lubicon’s impressively successful move to appeal to Canadian citizens and businesses for the protection of Lubicon lands and way of life was not tolerated for long. In 1995, Daishowa Inc. brought a SLAPP (strategic lawsuit against public participation) lawsuit against the Friends of the Lubicon in an attempt to silence the effective boycott campaign through intimidation and costly litigation.

In the Ontario Court decision, Judge J.C. McPherson acknowledged the seriousness of the Lubicon’s plight, calling it “tragic, desperate and intolerable.” Despite this recognition, and his further statement that the Friends’ campaign could serve as a model for democratic action, Justice McPherson ruled to silence the group on the grounds that using the term “genocide” in its boycott efforts constituted “an enormous injustice” against Daishowa. The ruling, which was upheld on appeal, also affirmed the power of the state legal apparatus to condemn “secondary picketing” and boycott campaigns, thus prohibiting the Friends from making use of strategically important spaces outside consumer outlets, relegating them to less visible “primary pickets” outside Daishowa offices.

Indigenous rights activist and scholar Ward Churchill challenges Justice McPherson’s narrow interpretation of the word “genocide.” In an article published in Other Voices, he argues that the judge’s assertion that “the plain and ordinary meaning of the word ‘genocide’ is the intentional killing of a group of people” is consistent with the US and Canadian governments’ attempts to deny and evade the historical breadth of the term. The historically accurate definition, as coined by Raphael Lemkin in 1944, includes practices that lead to “a disintegration of political and social institutions � of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, [and] dignity.” When the judicial wing of the state acknowledges, with one hand, the destructive consequences of government actions, and, with the other, cracks down on the use of language that accurately describes that behaviour, all Canadian citizens are reduced by the exploitative, negligent, and callous actions of the government towards aboriginal people.

Churchill’s article goes on to quote Lubicon spokesman Kevin Thomas, who argued that “halting genocide in one place helps lay the groundwork for halting it in all places. But, for this to happen, it’s essential that people be made aware of what genocide actually is”. [B]usiness-as-usual pretty much depends on an ability to perpetrate genocide more or less continuously, without it being recognized as such and, as a result, without it encountering significant opposition from average citizens.”

AROUND THE WORLD, CANADA is recognized as a leading proponent of human rights. Canadians are proud of their government’s international role in the pursuit of social justice and human dignity. But a duplicity that undermines this role arises when self-flattering and high-minded rhetoric coincides with flagrant human rights abuses at home. As long as the government remains unwilling to resolve this dispute with the Lubicon Cree and, further, refuses even to negotiate in good faith, Canada’s attempts to be a force for positive change on the international stage begin to sound like the very “empty rhetoric” that Paul Martin recently criticized before the UN.

If this second condemnation from the United Nations Human Rights Committee is not enough to force the government to resolve the Lubicon’s land claim and to adequately compensate them for resources already stolen from their land, the rest of Canada should once again stand in solidarity with the band. Taking responsibility for those abuses that occur within our borders and in our name ought to be the first, best stand we take for human rights around the world.

Richard Milligan is pursuing a Masters in English Literature at the University of Saskatchewan.

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