The Grand Council of the Crees

The Systematic Dispossession of Aboriginal Peoples in Canada

"RECITING THE SYMPTOMS, IGNORING THE CAUSE: THE SYSTEMATIC DISPOSSESSION OF ABORIGINAL PEOPLES IN CANADA" A RESPONSE TO THE GOVERNMENT OF CANADA?S THIRD PERIODIC REPORT ON THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS SUBMISSION OF THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) TO THE COMMITTEE ON ECONOMIC SOCIAL AND CULTURAL RIGHTS

Posted: 1998-11-16

NOVEMBER 1998

Synopsis

Canada is one of the largest and richest countries in the world. As a State Party to the International Covenant on Economic, Social and Cultural Rights, the government of Canada is obliged to the "maximum extent of its available resources to ensure the progressive realization" of the rights in this binding International Covenant.

The government of Canada has succeeded in raising the average standard of living in Canada to the highest level in the world. Not all persons in Canada, however, live in conditions consistent with Canada's average standard and its international renown for wealth and respect for human rights. Aboriginal peoples are "lost peoples" in Canada.

With few exceptions, Aboriginal peoples live in desperate poverty in inadequate housing without access to quality water and with levels of unemployment, disease, suicide and incarceration (to name a few of the relevant indicators) far above Canadian averages.

This submission to the Committee on Economic, Social and Cultural Rights explains that the reason for the crisis in social, economic and cultural conditions facing Aboriginal peoples in Canada today is the systematic and ongoing dispossession of Aboriginal peoples by the government of Canada. This dispossession has been achieved and maintained through ongoing government policy and action in breach of the fundamental human rights of Aboriginal peoples, the obligations of the government of Canada under the Covenant and the reputation of Canada as a leading nation in its respect for human rights.

The Third Periodic Response of the Government of Canada is, with respect to the social, economic and cultural problems facing Aboriginal peoples in Canada, totally unacceptable. In many important respects, the government of Canada's Response:

Contents

I. THE PURPOSE AND FOCUS OF THIS SUBMISSION TO THE COMMITTEE

II. WHO WE ARE

The James Bay Cree Nation
The Grand Council of the Crees

III. CANADA'S AVAILABLE RESOURCES

One of the largest and wealthiest countries in the world
Obscuring gross disparity: government spending on Aboriginal peoples

IV. CANADA'S THIRD PERIODIC REPORT and RESPONSES TO QUESTIONS

V. ARTICLE 1 -- DEPRIVATION OF OUR OWN MEANS OF SUBSISTENCE:

THE HISTORIC AND CONTINUED TAKING OF ABORIGINAL LANDS

The Continued Outright Taking of Our Lands
"Move Over Indian": Forced Relocations
The Treaty-Making Process as an Act of Dispossession
A History of Broken Treaties
An Inadequate Land Base
The Discriminatory Federal Policy of Extinguishment and "Conversion" of Aboriginal Rights to Land
The Federal Government's Comprehensive Claims Process
Expropriation under the Indian Act
Deliberate Economic Marginalization
Other Strategies of Exclusion Which Have Made Dispossession Possible

VI. THE RIGHT TO AN ADEQUATE STANDARD OF LIVING:
CANADA'S SQUALID SECRET -- THE CRISIS CONDITIONS
IN ABORIGINAL COMMUNITIES

Poverty in Aboriginal Communities
Aboriginal On-Reserve Housing
"Adequate" Water Supply in Aboriginal Communities
The Right to Adequate Food
Consequences of Inadequate Housing, Water and Sanitation, and Food Supplies
Article 12: Levels of Aboriginal Health

Infant and Child Mortality
Suicide: A Reflection of our Communal Trauma and a Crisis for our Youth
Rates of Disability
Other Health Indicators of our Poverty and Dispossession

Article 6: The Right to Gain a Living by Work of Our Own Choosing

Endemic Mass Unemployment

Government Spending is Actually Declining and is Not Meeting the Needs

I. THE PURPOSE AND FOCUS OF THIS SUBMISSION TO THE COMMITTEE

"...the situation of the native peoples [in Canada] remains the most pressing human rights issue facing Canadians."

Canadian Human Rights Commission, Annual Report, 1994

...Aboriginal peoples have limited resources. Their lands and resources were taken from them by settler society and became the basis for the high standard of living enjoyed by other Canadians over the years. Only a small proportion of Canada's resource income has come back to Aboriginal people, most in the form of transfer payments such as social assistance. This has never been, and is not now, the choice of Aboriginal people. They want to free themselves from the destructive burden of welfare and dependency. But to do this they need to have back some of what was taken away. They need land and they need resources. (Emphasis added)

Report of the Royal Commission on Aboriginal Peoples (1996) Volume 2, p.5

Aboriginal peoples in Canada live in conditions of extraordinary poverty in a land of riches and wealth.

Our homes are substandard and overcrowded, our water often unsanitary and contaminated, our population and in particular our youth face staggering unemployment and rates of suicide, our levels of health, income and education fall far below that of the rest of the country. The lack in many of our communities of community infrastructure and services such as police forces, paved roads, health services, fire and ambulance services, or transportation services are hard to imagine or understand in a country as wealthy and developed as Canada.

In the words of the highest official Canadian federal human rights body, the Canadian Human Rights Commission, year after year:

...the situation of the aboriginal peoples is the single most important human rights issue confronting Canada today;

...we are dealing here with a severe problem of persistent and widespread human suffering which we have drawn attention to on numerous occasions;

...the plight of native Canadians is by far the most serious human rights problem in Canada and the failure to achieve a more global solution can only continue to tarnish Canada's reputation and accomplishments;

Canadian Human Rights Commission, Annual Report, 1991

Canadian Human Rights Commission, Annual Report, 1992

Canadian Human Rights Commission, Annual Report, 1993

If we were to list in detail each area in which Canada has systematically and consistently ignored, failed to fulfill or violated its obligations under the Covenant on Economic, Social and Cultural Rights in respect of our people and of Aboriginal peoples generally our report to the Committee would be hundreds of pages long.

Instead, this submission will focus on what we experience as one of the essential or core violations of our people's rights and the rights of all Aboriginal peoples in Canada under the Covenant. In our submission, the poverty, unemployment, poor health and general physical and spiritual decline of Aboriginal communities in Canada is primarily a result of Canada's deliberate, discriminatory and systemic policies over generations (and continuing to the present day) of dispossessing Aboriginal peoples of our traditional lands and of socially and economically marginalizing Aboriginal peoples.

Our submission in this regard finds support in the statements made by the Chief Commissioner of the Canadian Human Rights Commission and in the statistics and analysis of the historic Report of the Royal Commission on Aboriginal Peoples (1996). The mandate of this five year official federal commission of inquiry was to investigate the relationship between Aboriginal peoples in Canada, the Canadian government and Canadian society and to propose specific solutions to the political, economic, social and cultural problems which have plagued those relationships and which continue to confront Aboriginal peoples in such a discriminatory and debilitating way today.

Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), Volume I, p.2

One of the fundamental points recognized and addressed by the Royal Commission on Aboriginal Peoples is the relationship between poverty and underdevelopment in Aboriginal communities and the historical and systematic dispossession of Aboriginal peoples of our lands.

Accordingly, as quoted above, a most fundamental recommendation of the Royal Commission was that lands and resources be restored to Indigenous peoples across Canada.

In short, our submission in this report is that Canada's persistent and systematic policy of dispossession of Aboriginal peoples and of marginalizing Aboriginal peoples socially and economically -- whether it be through the treaty-making process, the failure to implement treaties, the insidious incursions onto Aboriginal lands through industrial development or the Indian Act -- constitutes a direct violation of the right to self-determination of Aboriginal peoples under Article I of the Covenant, as well as our Covenant right in Article 27 to take part in our cultural life.

Further, since Aboriginal life, economy, culture, society, health and spirituality are intrinsically connected to each other and to our lands, government policies and practices of dispossession have fundamentally undermined Aboriginal societies and economies. These policies and practices have, therefore, resulted in violations of the rights of Aboriginal peoples to an adequate standard of living under Article 11, to the highest attainable standard of health under Article 12, to work under Article 6, to education under Article 13 and to take part in Aboriginal cultural life under Article 15.

Accordingly, this submission will lay the foundation for an expression of concern by the Committee that despite Canada's recognition of the "third-world" conditions faced by Aboriginal peoples in its Third Periodic Report and despite the findings and recommendations of the Royal Commission on Aboriginal Peoples released in 1997, Canada has failed to follow the recommendation of the Royal Commission on Aboriginal Peoples to recognise the importance of and initiate the process of meaningfully returning land and resources back into the hands of Aboriginal peoples in Canada.

As a result, this submission will also respectfully request that the Committee recommend that the government of Canada take all necessary, immediate and ongoing steps to restore an adequate quality and quantity of lands and natural resources to Aboriginal peoples in Canada to permit us to achieve, as peoples, a dignified, sustainable and equitable standard of social, economic and cultural development, and thereby begin the process of cultural and spiritual healing and of alleviating the conditions of poverty, deprivation and underdevelopment within our Aboriginal communities.

It is fully expected that the government of Canada will take the position that it has already taken steps to respond to our concerns. We will strongly disagree with this position. In its January 1998 response (after a two year delay) to the Report of the Royal Commission on Aboriginal peoples, the government of Canada has taken only limited and isolated steps, that coincide only in very small part with the recommendations of the Commission, and completely fail to address its most fundamental recommendations.

II. WHO WE ARE

The James Bay Cree Nation

The James Bay Cree Nation is an Indigenous people living to the east of James and Hudson Bay, in and around what is now the Province of Quebec, in Canada.

We comprise an organized society and distinct Nation which includes the nine Cree First Nation communities shown on the map on the following page organized into the Grand Council of the Crees/Cree Regional Authority which entity is referred to as the "Eastern James Bay Cree Nation". The Eastern James Bay Cree Nation is one of the Aboriginal Peoples in Canada within the meaning of section 35 of the Constitution Act of Canada, 1982.

We have lived in and around Eeyou Istchee, our traditional lands and waters, since time immemorial. Our people and society have been, and continue to be, sustained socially, economically and culturally by means of hunting, fishing, trapping and gathering in these traditional lands and waters. In addition, we are now also engaged in public service delivery (education, health services, local and regional government), and various enterprises with activities on these lands.

As is the case with all Indigenous peoples, our people the James Bay Crees have a profound relationship with our lands and waters. We share the land and waters with the animals, the birds, the fish and the trees and rocks.

Our rights in our land come from the Creator, from who we are, from our status as a people, from our relationship with our lands themselves. The Creator put us in Eeyou Istchee to govern, occupy, use, benefit from, enjoy and fairly share these lands and resources. We are not on our lands, or even in our lands; we are part of our lands and of all of the creatures and things of creation that we share them with.

Through the course of this century, we have suffered terrible encroachment and dispossession in our traditional lands. This has been in large part caused by settlement of newcomers, large-scale resource extraction and development, and non-Aboriginal hunters coming to our lands. It has also occurred as a result of Federal and Provincial governments that refuse to implement the regulatory and policy protections afforded to the Crees in 1975 which will be discussed in greater detail below.

Our society has as a result been radically transformed by external forces, mostly not of our choosing. Overall we have been terribly damaged by the transitions that we have been forced to undergo. We have not been harmed, however, by all of these changes. In some ways, we have managed to survive and even benefit from some of these changes. For example, we have finally been recognized as having the right to manage a number of services (for example health care and education) for our people that were previously provided by the governments in a manner which was not only substandard but which involved human rights abuses. Other residents in Canada had always taken their involvement and control in the provision of these services for granted.

Our people are only now in a position to subject the broad application and impacts of Canadian policies and practices towards us as an Indigenous people to meaningful examination. In the context of the present periodic review of Canada's compliance with the International Covenant on Social, Economic and Cultural Rights, our people wish to present a first analysis that we feel is highly overdue regarding our social, economic and cultural human rights. Canada's debate in this regard has tended to be with the United Nations but has been closed within Canada to meaningful input from the Indigenous peoples. Our rights as Indigineous peoples are recognized and affirmed in the Canadian Constitution; we are entitled to participate fully in this international dialogue because it concerns us.

The Grand Council of the Crees

The Grand Council of the Crees is the representative body which for the past 27 years has acted on behalf of and represented the James Bay Cree People in all matters relating to the status, rights and interests of the James Bay Cree Nation.

The Grand Council has worked extensively within national and international fora to safeguard and advance the Aboriginal, Treaty and other constitutional and human rights of the James Bay Crees and Aboriginal Peoples in general.

In particular, the Grand Council has been very involved for more than fifteen years in the work of the United Nations Working Group on Indigenous Populations and has made submissions to the United Nations Commission on Human Rights, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities and the Committee on the Elimination of Racial Discrimination, for the purpose of advancing and protecting the rights of Aboriginal Peoples in Canada and throughout the world. The Grand Council has had NGO consultative status with the UN Economic and Social Council since 1987.

Internationally, the Grand Council has been invited as an expert on the rights of Aboriginal peoples and the right of self-determination to several international meetings and seminars including the United Nations Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States held in Geneva and the Global Consultation on the Realization of the Right to Development as a Human Right. The Grand Council has also been consulted by the Organization of American States on the drafting of an OAS legal instrument on Indigenous rights and in the preparation of a response to the present Draft of the Inter-American Declaration on the Rights of Indigenous Peoples.

In Canada, the Grand Council advocates in whatever ways are possible for improvement in the social and economic conditions of our people and of Indigenous peoples generally, and for the advancement of all of the human rights of our Nation and of Indigenous peoples in general. The Grand Council has liaised with numerous organizations, entities and individuals in this work; for example we have made special efforts to work with the Canadian Human Rights Commission to educate the Commission about the conditions of Aboriginal Peoples in Canada. (We have done so in spite of the fact that the government of Canada has by law constrained the Commission from subjecting legislation affecting Indians to human rights scrutiny.) Likewise, we have liaised with elected officials in the Parliament of Canada to raise their understanding about the conditions facing our people and the violations of our human rights that these conditions entail.

In this submission, while we refer to statistics concerning conditions faced by Aboriginal peoples across Canada, we speak only for the James Bay Cree Nation and, with their permission, for the Pimicikamak Cree Nation in the Province of Manitoba, Canada.

III. CANADA'S AVAILABLE RESOURCES

One of the largest and wealthiest countries in the world

In reviewing the compliance of State Parties with the International Covenant on Economic, Social and Cultural Rights, the Committee has set out in its General Comment No. 3 that State Parties are obliged to undertake measures, "to the full use of the maximum available resources" for the progressive realization of the rights enshrined in the Covenant.

Committee on Economic, Social and Cultural Rights: Report on the 5th Session of the Committee: General Comment No. 3, p.85
International Covenant on Economic, Social and Cultural Rights, Article 2

Canada is the world's second largest country, after Russia. The total area is 9,970,610 sq km
(3,849,674 sq mi).

The population of Canada is 30,337,334 (1997 estimate). Indigenous peoples now make up less than 4 percent of the population. Some 77 percent of all Canadians are urban dwellers, and approximately three-quarters of them inhabit a narrow belt along the United States border. Resultingly, Indigenous peoples constitute the majority of the residents over the greater part of Canada's sparsely populated land mass.

Nevertheless, lands officially set aside for Aboriginal peoples make up less than one-half a percent of the Canadian land mass. Moreover, much of this tiny portion of land is marginal, non-arable or devoid of resources.

In the United States, where Aboriginal peoples are a much smaller percentage of the total population, the comparable figure is three percent. The maps on the opposite page chart the Aboriginal land base in Canada as compared to the Aboriginal land base in the United States.

Canada is a "G7 country", namely one of the group of seven leading industrial economies in the world. The Canadian Gross Domestic Product in 1997 was approximately $800 billion, making Canada one of the wealthiest countries in the world, especially given its vast, resource-rich land- and water-mass and comparatively low population. This socio-economic fact has been confirmed by the United Nation Development Programme, which for the last six years has placed Canada at the very top of its global human development index. Canada's per capita GDP is second only to that of the United States among G7 countries:

1992 CGDP: Real GDP per capita (current international prices)

Country Data Value Percentage
USA 23220.0 100.0
Canada 20970.0 90.3
Germany, West 20197.0 87.0
Japan 19920.0 85.8
France 18232.0 78.5
Italy 16724.0 72.0
United Kingdom 16302.0 70.2


University of Toronto Website, Penn World Tables
http://datacentre.chass.utoronto.ca/pwt/

Canada has been first on the United Nations list for the highest quality of life in the world for the past six years. In contrast, according to a federal Department of Indian Affairs study, aboriginal peoples living "on-reserve" in or near their traditional lands ranked approximately 63rd on the UNDP scale.

Canada, Department of Indian Affairs, "Measuring the well-Being of First Nation Peoples" (undated, ~ October 1998).

Erin Anderssen, "Canada's Squalid Secret" life on Native Reserves" Globe & Mail (12 October 1998) A1

Obscuring gross disparity: government spending on Aboriginal peoples

Unfortunately, the financial statistics provided (to this Committee and to the Canadian public) by the government of Canada with respect to expenditures on Aboriginal peoples are presented in a deliberately confusing or obscure manner.

Financial experts consulted by the Grand Council of the Crees have indicated that it is extremely difficult or impossible to derive comparative data concerning per capita expenditures on Aboriginal people versus non-Aboriginal Canadians from the expenditure figures provided by the government of Canada.

Certain critically important observations can be made concerning the approximately CAN$6 billion that the Canadian government claims to spend on Aboriginal peoples in Canada each year. This sum appears to include:

- compensation payments to individual Aboriginal peoples in settlement of claims lands that have been taken from them or damaged in some way;- social welfare payments made necessary by mass Aboriginal poverty and unemployment;

- federal transfer payments to far-north territories in which half or more of the population is non-Aboriginal.

In addition, it is not possible to determine in respect of what population this sum is spent. These approaches serve to inflate apparent federal spending on Aboriginal peoples.

For the reasons outlined above, actual spending by the government of Canada on Aboriginal peoples in Canada is actually likely significantly less than CAN $6 billion per year. When calculated per capita, this sum is both discriminatorily low and grossly inadequate, in light of the extraordinary need and the existence of available resources in Canada.

On the basis of the data provided by the federal government, it appears that government per-capita spending on Aboriginal peoples is generally much lower than on non-Aboriginal Canadians, or at the very best in some cases approximately the same.

It would appear that per capita government expenditures in respect of Aboriginal peoples in Canada is as low as CAN$7,000, in comparison to spending of over $10,000 on all Canadians, and over $20,000 to residents of the Northwest Territories.

For example, the Cree Nation of Cross Lake, Manitoba appears to be receiving less than CAN$7,000 per person from the Canadian government in respect of education, health, social services, community infrastructure, shelter, social assistance, training and other basic social needs.

QUESTION 1: Will the government of Canada provide this Committee forthwith with accurate, appropriately formulated, accessible and fully comparable financial expenditure data concerning Aboriginal peoples in Canada? In particular, such data must permit analysis of per-capita expenditures by all paying levels of government in respect of (a) on-reserve Aboriginal peoples, (b) off-reserve Aboriginal people, (c) all other Canadian residents, and (d) residents of northern territories where non-Aboriginal people also live, such as the Northwest Territories or the Yukon.

It is has often been the view within the Canadian body politic that the government of Canada is respecting the human rights of Aboriginal peoples living within Canada since Aboriginal peoples within Canada are somehow "not as badly off" as Indigenous peoples living in other parts of the world.

The Covenant on Economic, Social and Cultural Rights, however, requires the government of Canada to fulfill its obligations in respect of Aboriginal peoples to the same standard as that of the rest of the population of Canada and to the maximum of available resources in Canad.

IV. CANADA'S THIRD PERIODIC REPORT and RESPONSES TO QUESTIONS

As we have pointed out on numerous occasions, aboriginal rates of unemployment, disease, suicide, incarceration and abuse...far exceed national averages. The significance of this data goes far beyond such traditional questions as how to provide the essentials for communities living on reserves to raise the much larger and tougher issues of how genuine improvements can be realized across a whole range of aboriginal situations and what kinds of fiscal and economic interdependence they imply.

Canadian Human Rights Commission, Annual Report, 1993

The statement of the Canadian Human Rights Commission above has indicated that a systemic response to the social, economic and cultural conditions facing Aboriginal peoples in Canada is required if the most pressing human rights issue in Canada for the last ten years is to be resolved.

In its third periodic report (of October 1997) concerning its compliance with the International Covenant on Social, Economic and Cultural Rights, the government of Canada does not deny and in part documents the "third-world" conditions of poverty, rampant unemployment, poor health, inadequate housing and lack of infrastructure affecting Aboriginal communities and peoples in Canada.

The government of Canada, however, does not present to the Committee the root cause of the systemic poverty, unemployment and disrepair of Aboriginal communities: which is the ongoing social and economic marginalization and the continued dispossession and alienation of Aboriginal peoples from an adequate land base and access to and control over the necessary resources to achieve a meaningful and dignified standard of living.

Instead, for example, the Government of Canada states in its Report that "the lower income among the Aboriginal population may be accounted for by a higher level of unemployment...and lower levels of education" (Statistical Annex, para. 7.3.2) and suggests ingenuously that the

"...high incidence of poor housing conditions in Aboriginal communities is strongly related to a number of locational, socio-demographic, health and economic factors. For example, Aboriginal households tend to be larger than non-Aboriginal households and are more likely to be made up of children and young adults, especially young spouses and lone parents. Aboriginal peoples are also more likely to be living in extended-family or multigenerational arrangements"."

Background Report to Third Periodic Report of Canada; Article 11: Housing, prepared by the Canadian Mortgage and Housing Corporation at p.19

It is submitted that such statements by the government of Canada to "explain" the statistics of mass poverty and poor housing in Aboriginal communities are specious and circular. We do not choose to live under conditions of overcrowding; we are forced to because there is inadequate housing in our communities. Further, we are unable to address this situation ourselves because of the (in most if not all cases) underdeveloped and dependant nature of our societies and economies.

Similarly, surely it is also unacceptable to respond to statistics documenting mass poverty in Aboriginal communities by stating that this is as a result of low levels of Aboriginal education and employment!

It is submitted that the central question for the Committee to address -- the question that the government of Canada conspicuously fails to discuss in its report -- is the systemic cause of the high unemployment, mass poverty, poor education, grossly inadequate infrastructure, poor health and inadequate housing (to list but a few issues) in Aboriginal communities and how best to systemically remedy these conditions.

In its response to the Committee's question on the intentions of the government of Canada with respect to the recommendations of the Royal Commission on Aboriginal Peoples regarding self-determination, self-governance and affording adequate lands and resources to Aboriginal peoples in Canada, the government of Canada responds -- in our view falsely -- that it:

"has had policies in place for many years that are congruent with, or accommodate, many of the recommendations of the Royal Commission on Aboriginal Peoples". (Emphasis added)

If this were the case, there would surely have been no reason for there to have been a five-year federal Commission to inquire into the relationship between the government and Aboriginal peoples in Canada. Nor would the Report of the Commission have been so fundamentally critical of the attitudes, policies and actions of the government of Canada in both the distant and very recent past.

The policies that the federal government has actually had in place and pursued for many years are its ongoing and discriminatory policies of dispossession, extinguishment and colonization.

The government of Canada also states in its response to the Committee's question that "the comprehensive claims policy addresses the use and management of renewable resources and provides for negotiating economic benefits". This statement is deliberately misleading and is an appalling misrepresentation of both the Report of the Royal Commission on Aboriginal Peoples and of the facts.

The Report of the Royal Commission on Aboriginal Peoples was resoundingly critical of the government's comprehensive claims process. The process does not meaningfully return management of renewable resources nor economic benefit to Aboriginal peoples nor does it respect inherent Aboriginal title and rights to the land. The process does exactly the opposite and, as will be discussed in greater detail below, is "congruent" only with the government's policies of dispossession.

V. ARTICLE 1 DEPRIVATION OF OUR OWN MEANS OF SUBSISTENCE: THE HISTORIC AND CONTINUED TAKING OF ABORIGINAL LANDS

Regardless of the approach to colonialism practised...the impact on Indigenous populations was profound. Perhaps the most appropriate term to describe that impact is "displacement". Aboriginal peoples were displaced physically -- they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools -- which undermined their ability to pass on traditional values to their children...they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions....Paradoxically, however, the negotiation of treaties continued, but side by side with legislated dispossession, through the Indian Act. Aboriginal peoples lost control and management of their own lands and resources, and their traditional customs and forms of organization were interfered with in the interest of remaking Aboriginal people in the image of newcomers.

The Report of the Royal Commission on Aboriginal Peoples (1996), volume 1, chapter 6, pp. 139-140

The Grand Council assumes that the Committee is aware of the history of dispossession of North American Aboriginal Peoples from our lands by European governments and settlers.

The colonial history of European settlement and of the economic, social, political and cultural dispossession of Aboriginal peoples in the 1700 and 1800s is quite succinctly summarized by the Report of the Royal Commission on Aboriginal Peoples (1996), as quoted at the top of this section.

The Committee may not be aware, however, that this process of dispossession continues to the present day and that the above quote accurately describes the activities of the Government of Canada over the last four decades.

The continued dispossession of Aboriginal peoples until the present day has been well-documented and recognized by the Royal Commission on Aboriginal Peoples:
...Aboriginal peoples have had great difficulty maintaining their lands and livelihoods in the face of massive encroachment. This encroachment is not ancient history. In addition to the devastating impact of settlement and development on traditional land-use areas, the actual reserve or community land base of Aboriginal people has shrunk by almost two-thirds since Confederation, and on-reserve resources have largely vanished. The history of these losses includes the abject failure by the Indian affairs department's stewardship of reserves and other aboriginal assets. As a result, Aboriginal people have been impoverished, deprived of the tools necessary for self-sufficiency and self-reliance. (Emphasis added)

The Royal Commission on Aboriginal Peoples (1996), Volume 2, p.425

Even the government of Canada, in its recent belated response to the report of the Royal Commission on Aboriginal Peoples, admitted in general terms to its responsibility for the dispossession and consequent dependency and impoverishment of Aboriginal peoples:
Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride. Attitudes of racial and cultural superiority led to a suppression of Aboriginal culture and values. As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of Aboriginal people and by some provisions of the Indian Act. We must acknowledge that the result of these actions was the erosion of the political, economic and social systems of Aboriginal people and nations. (Emphasis added)

Statement of the Honourable Jane Stewart, Minister of Indian Affairs and Northern Development on the occasion of the unveiling of Gathering Strength -- Canada's Aboriginal Plan of Action (7 January 1998) (www.inac.gc.ca/info/speeches/jan98/action.html)

In contexts other than reporting to this Committee, therefore, the government of Canada has on at least one occasion recognized that dispossession of land, forcible relocation and the provisions of the Indian Act which undermine Aboriginal self-governance and control over lands have destroyed the ability of Aboriginal peoples to be self-determining peoples pursuing our own means of subsistence under Article 1 of the Covenant.

Unfortunately, however, this recognition has not informed Canada's Third Periodic Report to this Committee and is not reflected in any of the solutions which Canada has proposed in its Report for alleviating widespread conditions of Aboriginal dispossession, impoverishment, unemployment and dependency.

A. The Continued Outright Taking of Our Lands

Despite growing national and international recognition of the rights of Indigenous peoples, the land of Aboriginal peoples in Canada continues to be de facto unilaterally taken and de facto occupied for settlement, exploitation of resources and other forms of development. In the process, hundreds of thousands of Aboriginal people have been left without meaningful lands and resources.

Constitution Act, 1982, s.35
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
United Nations, Draft Declaration on the Rights of Indigenous Peoples

In our own case, for example, in 1971 the premier of the Province of Québec announced a $6 billion hydro-electric mega-project to be built in the James Bay region which would involve the construction of dozens of dams on rivers in traditional Cree territory and would flood and radically and permanently damage and alter large portions of the traditional lands of the James Bay Crees.

This huge project was developed and then announced without any prior notice to or consultation with the James Bay Crees. As stated by the Supreme Court of Canada:

"...the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians who lived there, even though these were expressly protected by a constitutional instrument".

R v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.)

As a result of Cree political activism after the announcement of the Project, we were able to secure some influence over the future impacts of the project on our Nation through the negotiation of a treaty agreement called the "James Bay Northern Quebec Agreement" (JBNQA).

It must be remembered, however, that the project went ahead over our objections that it not be constructed at all. As well, the JBNQA was an agreement which we had no choice but to sign and which was not a victory for us: we were purportedly left with control over only a few per cent of our traditional land base. As noted by the Honourable Joe Clark, Leader of the Opposition in the House of Commons (who went on to become Prime Minister of Canada) at the time:
It was clear from the outset, certainly to them, that if they did not come to an agreement...a settlement would be imposed on them...The native people were negotiating under the gun of a deadline to which they had to adhere. If they did not adhere, they and their people would suffer the consequences...They were forced to negotiate under the gun of extraordinary conditions, conditions to which people of a different kind of background would probably not have been subjected...[for example] conditions which denied in advance their right to invoke social impact factors on proposed future hydroelectric projects...

House of Commons Speech of the Honourable Joe Clark (December 1976) on the occasion of the passage of the JBNQA implementing legislation.

A second equally recent example of the outright taking of traditional Aboriginal lands involves the Crees of Northern Manitoba. In 1974 Manitoba Hydro flooded and adversely affected approximately 3.3 million acres of traditional Cree and environmentally fragile boreal lands. The consent of the Cree peoples in Manitoba, in particular the five Cree communities living on the affected rivers, was not obtained before the flooding and destruction of the lands. The Cree peoples were also not consulted about the flooding, which has since caused severe environmental, social and cultural devastation to Cree lands, communities and economies.

The project has been described by the Royal Commission on Aboriginal Peoples as follows:
The Churchill River Diversion has subsequently become well known for its massive scale and detrimental effects on the northern Manitoba environment and the Aboriginal peoples who live there. Although the project directly affected the lands and livelihood of five treaty communities...and one non-treaty community...they were not consulted, nor did they give their approval for the undertaking. Reserve and community lands were either flooded or affected by dramatic changes to water levels in surrounding lakes and rivers, and traditional land use areas were damaged or rendered inaccessible.

The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 2, p.516

These are but two examples of the continued acts of outright dispossession undertaken with the participation and approval of the government of Canada, in very recent and modern times.

When our lands are taken from us, destroyed or otherwise adversely affected, our traditional economic, social and cultural ways of life are destroyed or severely undermined. In Northern Manitoba and James Bay, the hydro-electric projects resulted in detrimental changes to animal habitats, contaminated the fish and the water and significantly reduced the possibilities for our people to use and benefit from our lands for subsistence and to achieve economic viability. In both cases, the vast flooding and changes in water levels and flows severely altered migration patterns of animals and birds. Waterfowl, for example, have been forced to new feeding and breeding grounds, great distances from their original habitats.
James. B. Waldram, "Hydroelectric Development and Dietary Delocalization in Northern Manitoba, Canada" 44(1) Human Organization 41-49 (1985) at p.42."James Bay Hydroelectric Project, Quebec, Canada" in Second International Water Tribunal, "Dams" (Utrecht: International Books, 1994)

For greater detail and documentation of the impacts of the Churchill River Diversion project in Northern Manitoba on the traditional activities and economies of the Cree Nations, see Submission to the U.N. Working Group on Indigenous Peoples and International Commission on Dams on behalf of the Pimicikamak Cree Nation (1998) (on file with the Grand Council of the Crees, Ottawa).

In addition, to continue using our experience as Crees as an example, our access to and control over our lands are eroded by acts which, when compounded, substantially interfere with our right to self-determination and our ability to pursue our own means of subsistence. The JBNQA was imposed upon us under conditions of severe duress, and while certain important social and compensatory benefits were promised us, the fundamental terms of the "agreement" were purportedly ones of ex post facto ratification of the dispossession of much of our traditional lands, waters and resources.

These experiences of the Crees are but one example of the widespread and continual dispossession of Aboriginal peoples across Canada and the day-to-day erosion of traditional Aboriginal land bases and economies.
B. "Move Over Indian": Forced Relocations

In many cases, relocation separated Aboriginal people from their homelands and destroyed their ability to be economically self-sufficient. This loss of economic livelihood contributed to a decline in living standards, social and health problems, and a breakdown in political leadership.

The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 1, p.413

When the existence in a particular location of Aboriginal peoples has proved to be "inconvenient" to the government of Canada or to the "interests" of the Canadian public, Aboriginal peoples have simply been forced out of the way, figuratively and literally.

Hundreds of Aboriginal peoples in Canada have been forcibly removed from our traditional lands and relocated in the name of development and administrative convenience such as relocating Aboriginal communities to facilitate more cost effective service delivery or to alleviate population pressures in particular regions. If we were poor, we were forcibly moved to where there might be jobs; if we were inconveniently located, we were relocated for the administrative convenience of the government agents, the Church or the Hudson's Bay Company; if we were in the way of the expansion of agriculture or urban settlement, we were moved for our own "protection", and if we were in the way of natural resource exploitation, we were moved "in the national interest".

The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 1, p.413

The James Bay Cree Nation of Oujé Bougoumou in the Province of Québec was forcibly relocated seven times since 1927 for the benefit of non-Aboriginal interests in mining and forestry on traditional Oujé-Bougoumou lands. In fact, as a result of relentless government interference and dispossession, by the late 1980s the Oujé-Bougoumou Crees were scattered and living in tar-paper shacks on the side of the highway with no other land to move to.

In the mouth of the La Grande River in the Province of Québec, our people were required to be relocated away from their settlement at Fort George because the waters of the hydro-electric project threatened to erode the banks of the island on which it was located.

Many of our Cree family traplines in Eeyou Istchee have been flooded and subsequently diminished as animal or human habitat through the extensive clear-cutting of the boreal forest in our traditional lands. This destruction of our traditional lands results in the further dislocation of our people and in our inability to pursue our traditional way of life in peace.

Likewise in Cree traditional lands in Northern Manitoba, large portions of lands that were constitutionally guaranteed to the Cree peoples as hunting grounds or reserve lands were flooded, forcing the dislocation of family hunting areas and their users.

Such forced relocations, in which homes have been bulldozed, entire communities picked up and moved despite vociferous objections, and Aboriginal peoples have been physically evicted from our lands, have occurred throughout Canada, including in relatively recent years.
For a detailed discussion of "dozens" of examples of the relocations of Aboriginal peoples, see The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 1, Chapter 11: "Relocations"

The history of relocations of Indigenous peoples in Canada is part of the broader process of dispossession and displacement of Aboriginal peoples which has had profound, long-lasting and continuing impacts on the social, economic, spiritual, cultural and political health and well-being of the relocated communities and on all Aboriginal peoples as recognized by the recent report of the Royal Commission on Aboriginal Peoples (see quote at head of this section).

Clearly, some of these relocations occurred prior to the coming into force of the Covenant. However, the ongoing reliance placed by the government on the factual, legal and social consequences of these relocations, to the detriment of the social, economic and cultural rights of our people and to the benefit of the government and non-Aboriginal Canadians, is a breach of its obligations to take steps to fully realize our rights.
C. The Treaty-Making Process as an Act of Dispossession

The government of Canada may well respond to the submission of the Grand Council of the Crees by claiming that the government of Canada is actively engaged in the process of settling land claims with Aboriginal peoples across Canada and, accordingly, is attempting to fulfill its obligation of returning lands and resources to Aboriginal Peoples.

The Grand Council of the Crees submits, however, that the current treaty-making processes in which the government of Canada is engaged are fundamentally an extension of its policies of dispossession, exclusion and alienation. For example, Canada recently refused to recognize the Agreement it is negotiating with the Makivik Inuit (Northern Quebec), as protected by the Constitution because the Inuit refused to negotiate an extinguishment of their rights.

The treaty-making process over the past three decades and up to the date of the writing of this submission, constitutes a continuation of Canada's policy of dispossession for three primary reasons:

Once treaties are signed, the Aboriginal Treaty Nation always has to struggle permanently with the government parties to achieve any implementation of the terms of the Treaty and almost never realizes respect for the terms of the Treaty as signed.

Treaties have never left Aboriginal peoples with an adequate land base and control over resources so as to permit the creation and maintenance of viable and self-sufficient communities.

Perhaps most insidious, is Canada's ongoing treaty policy of extinguishment, which requires as a condition of any settlement that Aboriginal peoples entering into treaty relationships with the Crown renounce our inherent Aboriginal title to our lands and resources in return for limited and specific rights under the terms of the treaty.

(i)A History of Broken Treaties

In the course of Canadian history, a notion persists that governments make promises to induce natives to surrender their lands and other rights and then routinely break these promises, frequently hiding behind legal technicalities. Regrettably, the evidence supporting this notion is extensive.

1986 and 1998 reports of the Cree-Naskapi Commission, see http://ppp.atreide.net/CNC

In its decisions, the Supreme Court of Canada has repeatedly indicated, for example in the Calder, Sparrow, Mitchell, Badger, Lewis, Nikal, Van der Peet, and Delgamuukw cases, that the honour of the Crown is at stake in its dealings with Aboriginal peoples. It has also stated that Treaties entered into with Aboriginal peoples are "sacred" agreements.

From the perspective of the colonizers in the 1800s and 1900s, the negotiation of treaties with Aboriginal peoples was "little more than real estate transactions designed to free Aboriginal lands for settlement and resource development".
The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 1, p.140

Unfortunately, this approach to treaties continues to influence government policy to the present day. This is evidenced in part by the fact that "treaties have been honoured by governments more in the breach than in the observance". The Treaty experiences of our people, and those of the Pimicikamak Cree Nation in Northern Manitoba, certainly accord with this statement.
The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 2, p.3

Substantial parts of the James Bay Northern Quebec Agreement signed between our people and the federal government of Canada in 1975 have still not been fulfilled, particularly in respect of social, economic and cultural development benefits that were promised to us.

In response to the significant non-fulfilment by the government of Canada of its JBNQA treaty obligations to us, the Cree Naskapi Commission (a standing federally-appointed body that oversees aspects of the relationship between the James Bay and the federal government) stated with piercing clarity that breach by governments of their Aboriginal treaty obligations is "routine" (see quote at head of this section).

After the flooding of the lands of the Cree Nations in northern Manitoba, the governments of Canada and Manitoba, Manitoba Hydro and the Cree Nations entered into a treaty called the Northern Flood Agreement (1977). This treaty agreement promised that in light of the serious adverse impacts of the flooding on the lands, economies, society and way of life of the affected Manitoba Cree peoples, the Crees would be compensated, provided with replacement lands, and that extensive efforts would be made to address the mass poverty and unemployment resulting from the man-made cataclysm that the governments of Canada and the Province of Manitoba had permitted or caused.

These Treaty promises have been broken and ignored and to this day the terms of the Treaty have in most part remained unfulfilled. Two Commissions of Inquiry, the Manitoba Aboriginal Justice Inquiry and the Royal Commission on Aboriginal Peoples, have found that the governments of Canada and Manitoba, and the Manitoba Hydro-Electric Board got what they wanted from the NFA Treaty, but that most if not all of the Treaty promises to Pimicikamak Cree Nation have been broken:
.. its [the NFA's] history has been marked by little or no action in implementation of NFA obligations and a long, drawn-out (and continuing) process of arbitration to force governments to implement their obligations... (Emphasis added)

The Report of the Royal Commission on Aboriginal Peoples (1996) Volume 2, p. 517

Rather than fulfill their obligations under the NFA Treaty, the treaty parties have embarked upon an initiative of escaping their continuing duties under the Treaty once and for all by inducing the Cree communities to accept a one-time cash buy-out in exchange for full and final extinguishment of their Treaty rights. Worse, the Treaty parties have embarked on this tactic through a policy and practice of:
divide and conquer or "disaggregation": approaching each affected Cree community individually rather than dealing with the appointed entity that was chosen by the five Cree Nations to represent them in the Northern Flood Agreement context;

duress: in breach of a legally-binding obligation to maintain social and community services programme funding to the affected Cree communities at least the same level as are provided to other "Indians" in Canada, the government of Canada systematically reduced funding to the Manitoba Crees, thereby greatly denuding their communities and compounding the adverse impacts of the project;

oppression through threat and bribes: through a number of strategies including individual financial inducements to impoverished, unemployed and isolated people, the federal government has succeeded, as is described below, in extinguishing the treaty rights that were put in place to protect the social, economic and cultural rights of the Crees.
In 1990, the non-Aboriginal Treaty parties took a cash buy-out offer to the affected Manitoba Cree communities. This "offer" was first accepted by a small and impoverished community. Then, under the continuing duress of more than 20 years of mass poverty and desperation, three other Cree communities later took the same path.

In the general statement of policy in January 1998, referred to above, the federal Minister of Indian Affairs publicly apologized on behalf of the Government of Canada for divide and rule tactics ("disaggregation") of which this is an example. The Government of Canada however continues to use these tactics, as shown by these strategies used against the Crees in Manitoba.

The treaty process between the government of Canada and Aboriginal peoples in Canada has been portrayed by the government of Canada as a means of assuring the rights of Aboriginal peoples in the face of the orderly and equitable colonization, settlement, and development of the Canadian state. It can be seen from the above major examples that the treaty process is in fact not only frequently the means by which Aboriginal peoples are dispossessed, but is also the "process of many promises" by which their "assent" to this dispossession is induced. The promises are then broken in a manner that compounds the dispossession.

It is respectfully suggested in respect of the apparent widespread violation and breach of federal government treaty obligations to Aboriginal peoples in Canada, that the government of Canada be asked the following question:

QUESTION 2:

The Supreme Court of Canada has repeatedly indicated that Treaties are "sacred" agreements and that the honour of the Crown is at stake in its dealings with Aboriginal peoples and their Treaty rights. The Royal Commission on Aboriginal Peoples and other official commissions have reported that the government of Canada routinely violates its treaty obligations to Aboriginal peoples. What changes in law, government action and policy will the government of Canada implement in order to rectify these flagrant breaches and meaningfully fulfill its obligations under existing Treaties with Aboriginal peoples?

(ii) An Inadequate Land Base

The government of Canada frequently states, in response to concerns about the inadequacy of the land-base and economic-base held by Aboriginal peoples, that the treaty process is a response to this very concern. In our case and that of the Manitoba Crees, the result of the "modern" treaty process we underwent was that we were left in insecure occupation of just a few per cent of our traditional lands.
100 In our case, the provisions of our JBNQA treaty purport to deprive us of any land mineral and resource rights, other than in very small areas of categorized land. The other Aboriginal treaties in Canada that we have examined, including the most modern ones, conform to this result.

The Discriminatory Federal Policy of Extinguishment and "Conversion"
of Aboriginal Rights to Land
[R]equiring Aboriginal peoples to extinguish [their Aboriginal] title in order to benefit from the protection of a modern treaty does not fit comfortably with the fact that the Crown is in a fiduciary relationship with Aboriginal peoples. Such a requirement, however well-intentioned, serves to exploit the very vulnerability and impoverished condition of Aboriginal peoples that treaties aim to redress.

Treaty Making in the Spirit of Co-Existence, An Alternative to Extinguishment -- Royal Commission on Aboriginal Peoples (1995) at p.55

101 The federal policy of extinguishment requires Aboriginal peoples to "cede, release and surrender" our inherent Aboriginal rights and title to our lands for the "benefits" of land claims agreement.

102 The federal policy of extinguishment is profoundly discriminatory and colonial. It is a policy that attempts to sever the relationship of Aboriginal peoples to our lands and undermines our economies, our collective identities, and our status and rights. It purports to remove from our peoples the beneficial enjoyment of our lands and resources and place them in the hands of the government of Canada -- which is then in a position to transfer them to provincial governments and thus to non-Aboriginal private, industrial, municipal or governmental hands.

Extinguishment of rights is a concept that Canadian law has reserved exclusively for aboriginal peoples. It is a tragic example of the divergence between legal reasoning and Aboriginal reality...Treaties are a matter of honour. The promises that the Crown has made do not disappear when the government chooses to violate them. What has been lost is the Crown's honour, not the rights that were secured by treaty.

Darlene Johnson, "Aboriginal Rights and the Constitution: A Story Within a Story?" in Canadian Constitutional Dilemmas Revisited (1997)

103 In short, the policy of extinguishment is an oppressive policy that says that Aboriginal peoples can have some small stake in Canada if we assent to giving up our relationship to our traditional lands and our inherent and fundamental rights. 104 The government of Canada has insisted in every comprehensive land claim negotiation thus far that extinguishment is non-negotiable. Aboriginal peoples have had only two choices: we can agree to extinguishment or we can forgo the land-claims process. During the negotiation of the JBNQA, James Bay Cree negotiators were told in no uncertain terms that it was extinguishment or nothing.

105 Blanket surrender and extinguishment clauses have been included in the text of all comprehensive land claims agreements since 1975.

James Bay Northern Quebec Agreement (1975)
Northeastern Quebec Agreement (1978)
Inuvialuit Final Agreement (1984)
Gwich'in Agreement (1992)
Nunavut Land Claims Agreement (1993)
Sahtu Dene and Metis Agreement (1993)
four Yukon First Nation Final Agreements (1993)

106 The government of Canada has justified its insistence on extinguishment in the name of "certainty". In other words, the government of Canada wants the land-claims agreement to be a full and final settlement, without being obligated to or restricted by the Aboriginal signatories ever again on the basis of inherent Aboriginal rights and Aboriginal title to land.

107 By extinguishing Aboriginal title, the government of Canada wants to ensure that it and third parties "are free to use and take up lands throughout the claims area unless restricted by the terms of the agreement itself". In this way, the policy of extinguishment is absolutely consistent with other policies of dispossession and marginalization. It is a way of factoring Aboriginal peoples out of the development picture and as such is an instrument of internal colonization.

Treaty Making in the Spirit of Co-Existence, An Alternative to Extinguishment Royal Commission on Aboriginal Peoples (1995), p. 41

108 It has always been, and remains absolutely incomprehensible to us that our rights in and to our lands could be subject to imposed variation or extinguishment by other peoples or other systems of laws. 109 Nevertheless, these very things are asserted against us in respect of our own traditional lands, Eeyou Istchee. It is the position of the Government of Canada that our Aboriginal rights and title to our lands have been extinguished. It is stated by the government of Canada that this was achieved through a special Canadian "Act of Parliament".110 Our Aboriginal rights in and to our tradition lands and waters are human rights. They are intrinsically connected to our rights to life, to self-determination, to identity, to culture, and to social, economic and cultural well-being. Our dispossession through the infringement or extinguishment of our Aboriginal rights is a violation of our most fundamental human rights and an illegal act of colonization.111 Our Aboriginal rights are recognized and affirmed in the Canadian Constitution. We agree with the characterization of our Aboriginal rights, alongside the Canadian Charter of Rights and Freedoms, as fundamental rights worthy of entrenchment in the highest law of the land.112 However, this "constitutional affirmation" is profoundly diminished because the text states that only such Aboriginal rights as were still "existing" in 1982 -- that is had not been extinguished or taken away in some way prior to that date -- are recognized and affirmed. 113 In this way, our most fundamental rights as an Indigenous people, namely our relationship with the Earth and its resources, are "legally" subject to extinguishment. In this way, our continuing dispossession is purportedly permitted and sanctified by the Canadian government.114 No other fundamental rights in the Canadian constitution are subject to "legal" extinguishment. We cannot accept that our particular rights as Indigenous peoples are subject to legal destruction or that it is even possible, as the government of Canada insists, to "extinguish" our Aboriginal rights or subject them to the termination by "conversion".

115 The Royal Commission on Aboriginal Peoples, the Canadian Human Rights Commission and the 1995 report of a fact-finder of the Minister of Indian Affairs have uniformly denounced the federal policy of extinguishment.

Treaty Making in the Spirit of Co-Existence, An Alternative to Extinguishment Royal Commission on Aboriginal Peoples (1995)
Report of the Royal Commission on Aboriginal Peoples
Canadian Human Rights Commission, Annual Report, 1995
A.C. Hamilton, Canada and Aboriginal Peoples: A New Partnership (Ottawa: DIAND, 1995)

116 The government of Canada now claims -- in our view falsely -- in its Response to the May 1998 questions of the Committee that:

Canada and Aboriginal groups are working together to address policy issues such as options to achieve certainty without extinguishment of Aboriginal rights...

Federal Responses to the Committee on Economic, Social and Cultural Rights (November 1998), question #23, page 12.

117 The Grand Council of the Crees in Eeyou Istchee, which is certainly a prominent Aboriginal group in Canada, has not been consulted in this regard -- neither concerning any revision of the government's extinguishment policy generally nor regarding the extinguishment provision contained in our Treaty. Indeed, the federal government has recently explicitly refused to even enter into discussions with us on this subject, which we stated we regard as a breach of our human rights.118 The government of Canada has also made no other signs whatsoever of abandoning its discriminatory and oppressive policy of extinguishment. The federal government has not as far as we are aware released a policy statement or any other public statement indicating that it is has abandoned or terminated its policy of extinguishment.

119 Although a former Minister of Indian Affairs commissioned a report into the issue of extinguishment, the report, known as the Hamilton Report, has never been acted upon. The Royal Commission noted the constancy in the government's position with respect to extinguishment stating that:

According to the federal government, current federal policy concerning comprehensive claims is designed to "conclude agreements with Aboriginal groups that will resolve the debates and legal ambiguities associated with the .. concept of Aboriginal rights."

Indian and Northern Affairs Canada, Federal Policy for the Settlement of Native Claims (March 1993), p.5

The Royal Commission observes further that the above 1993 policy statement elaborates but does not significantly alter the federal policy with respect to extinguishment outlined in preceding federal policy.

120 The most current land claims agreement which was negotiated by the government of Canada and was finalized in October 1998 is now in the process of being ratified by the parties, including the federal government. It is not up to us to speak for, or to second-guess, the treaty agreements with the federal government made by other Aboriginal peoples, but in this context it is certainly appropriate to examine federal policy as exemplified by new agreements.

121 This latest treaty contains provisions that appear to us -- in spite of a preambular clause that purports to abandon the practice of extinguishment of Aboriginal rights -- to nevertheless result in the legal extinguishment of Aboriginal rights. According to our interpretation, this is clearly achieved to the same effect as extinguishment through the use of the language of "certainty", "full and final settlement" of Aboriginal rights and title, and the "conversion" of Aboriginal rights to treaty rights.

Nisga'a Final Agreement, www.aaf.gov.bc.ca/aaf/treaty/nisgaa/docs/nisga_agreement.htm

122 If the present statement of the government of Canada to the Committee with respect to abandonment of the policy of extinguishment is in any way genuine, then the Grand Council of the Crees endorses it. However, in light of (a) the recent observations of the Royal Commission regarding the policy of extinguishment, (b) the apparent effect of the clauses in the recent Nisga'a Final Agreement concerning their Aboriginal rights to their traditional lands, and (c) the extensive social, economic and cultural ramifications of the treaty process for Aboriginal peoples, we recommend that the Committee probe the government of Canada on this issue further and ask the following questions:

QUESTION 3:

In what way does the "certainty", "full and final settlement" and "conversion" provisions of the Nisga'a Final Agreement differ in effect from extinguishment of Aboriginal title in respect of the lands to which they apply? In light of the commitment of the government of Canada to abandon its policy of extinguishment, will extinguishment clauses (or any clauses with equivalent effect) be removed from the Nisga'a Treaty?

Will the government of Canada now abandon its policy of extinguishment (or equivalent policies) in land claims negotiations, and release a policy statement renouncing and terminating extinguishment (or equivalent policies) within the next six months?

Will the government of Canada now act to redress past violations of rights through past extinguishments of Aboriginal rights?
(iv) The Federal Government's Comprehensive Claims Process

The delays that plague claims resolution are notorious among those that are involved with the process. They are not so well-known to the public, except when tensions reach the breaking point. There have already been tragic consequences...

The Report of the Royal Commission on Aboriginal Peoples (1996) Volume 2, p. 535

123 In its Responses to the Committee's questions, the government of Canada claims that its "Comprehensive Claims Policy" facilitates Aboriginal self-determination, self-governance and control of lands and resources.

124 The reality, in our view, is that the comprehensive claims policy is rooted in dispossession.

125 First, the characterization of our land rights as "claims" is fundamentally:

a denial of our inherent status and human rights, including our right to self-determination;
a perpetuation of discredited and discriminatory colonial notions of terra nullius, or the assertion that the continent was "unoccupied and no-one's land" and that Aboriginal peoples must now "claim" lands from which they wish to benefit;

a prejudicial strategy to devalue and discredit the legitimacy of Aboriginal title in the eyes of the Canadian body politic.

126 Second, the lands which Aboriginal peoples are generally permitted to select under the Treaties process are isolated, marginal and often denuded of resources. In our view, the current Treaty process is merely a formalization or consummation of our de facto dispossession.127 Third, there are hundreds of "claims" which are being asserted and the federal government deals with only a few at a time. As stated by the Royal Commission on Aboriginal Peoples, the "resolution" of land "claims" takes years, if not decades to resolve, and at this pace it could be centuries before a significant number of these "claims" are even acknowledged within this inadequate framework. This approach to land claims has led to great Aboriginal frustration, and even the loss of life in confrontations with the state, for example at Oka (1990) and Ipperwash (1995).

128 Fourth, while comprehensive "claims" are being negotiated, the federal and provincial governments are free to create new third-party interests on the traditional lands being "claimed". During the lengthy negotiation of these Treaties, therefore, logging, mining and development often continues to deplete and destroy traditional Aboriginal lands.

See The Report of the Royal Commission on Aboriginal Peoples (1996) Volume 2, p. 538

129 In light of the above fundamental problems with the government of Canada's comprehensive "claims" policy, and their severe impacts on the social, economic and cultural well-being and rights of Aboriginal peoples in Canada, the Committee is respectfully urged to ask the government of Canada the following questions and seek full and concrete responses thereto:

QUESTION 4.

It has come to the Committee's attention that by and large, Aboriginal peoples in Canada do not today have economically viable communities and economies. Numerous authorities, including Aboriginal peoples themselves and the Royal Commission on Aboriginal peoples have concluded that this situation is as a result of their not having access to and control over adequate lands and resources. Does the government of Canada intend to ensure that Aboriginal peoples in Canada have economically viable communities with lands and resources adequate to ensure the dignity of their societies and the full realization of their social, economic and cultural rights, as recommended by the Royal Commission on Aboriginal Peoples?

QUESTION 5.

If the answer to the preceding question is affirmative, what concrete steps does the government of Canada intend to take to effect this end within the next year?

QUESTION 6.

It has come to the Committee's attention that lands which are presently claimed by Aboriginal peoples in Canada are in some or many cases being exploited and occupied during the process of Treaty-negotiation thus significantly undermining both the purpose and process of Treaty-making. Does the government of Canada intend to prohibit the occupation, exploitation or other use and alienation of federal government lands which are subject to Aboriginal land claims?

D. Expropriation under the Indian Act

130 The Indian Act was first passed by Parliament in 1876 under Parliament's constitutional authority for "Indians, and Lands reserved for the Indians". The Act, in its amended form, still regulates the day-to-day lives and the lands of Aboriginal peoples and has been integral to the Canadian system of subjugation, exclusion and social and economic marginalization of Aboriginal Peoples in Canada. 131 The Act, from its inception and continuing to the present day, is based upon historic assumptions about the inferiority and incapacity of Aboriginal peoples and pursues a paternalistic policy of assimilation of Aboriginal peoples and elimination of our inherent rights.

132 By breaking-up Aboriginal nations into small administrative units, the Act pursued an explicit policy of containment and disempowerment of Aboriginal peoples. The Report of the Royal Commission on Aboriginal Peoples refers to the Indian Act as "displacement and deconstruction of the Indian nations as policy".

The Report of the Royal Commission on Aboriginal Peoples (1996) Volume 2, p.88-89

133 Over the years, the Indian Act has given the federal government essentially complete control over native lives, government and, more importantly, lands and resources. In particular, the Act has at all times given broad powers of expropriation to the federal government. Between 1894 and 1951, when the Act was revised, the superintendent of the department of Indian Affairs had the power to lease aboriginal "reserve" lands without consent of or surrender by the band. In addition, in 1911, public authorities, municipalities and companies with statutory expropriation powers were statutorily enabled to expropriate reserve lands for public works without the authorization of the federal executive.

134 Under the current Indian Act, these broad powers of expropriation continue and are only mitigated by the fact that public authorities, companies and municipalities must obtain the consent of cabinet before expropriation is permitted.

135 Section 28(2) of the Indian Act provides that the "Minister may by permit in writing authorize any person for a period not exceeding one year, or with the consent of the council of the band for any longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a reserve". This provision continues to be used to exert control over or dispossess Aborignal peoples of our lands.

E. Deliberate Economic Marginalization

Why are Indians today in a state of dependence? The blame for this does not fall on the dependent Indian population. They did not choose this way of living. Rather, it is rooted in Canadian policies and attitudes. Successive Canadian governments brought about this result by interfering with the normal evolution of the Indian economy. If the Indian economy had been allowed to follow the normal course of economies, the decline of their traditional means of subsistence would have been compensated for with other forms of self-sufficiency. In a land of opportunity alternative forms of subsistence, such as farming, ranching, industry, would gradually have supplanted traditional Indian means of hunting, fishing or gathering. But the Canadian government erected barriers to such an evolutionary process. Specifically, Indians were prohibited from engaging in a variety of commercial activities, such as selling agricultural produces off reserve. In effect, they were denied the opportunity to participate in the Canadian market economy.

...By diverting Indian lands away from the economic interests and benefit of Indians, and for the benefit of Canadians, Indian opportunities to expand or modernize their economies were first narrowed and then foreclosed. When the Indians' traditional means of subsistence had been destroyed by settlement of their lands, and when they could no longer feed or clothe themselves, the Canadian government, under the hypocritical guise of benevolence and Christian charity, transformed them into dependent wards by introducing a social-welfare system as the primary and permanent economic base of support in virtually all Indian reserves. Thus, Indians were transformed from a state of economic self-sufficiency and independence to a condition of total dependence and destitution, in effect being made economic prisoners on tiny reserves. [Emphasis added.]

Menno Boldt, Surviving as Indians (Toronto: University of Toronto Press, 1993), pp.225-226

136 Dispossession and economic marginalization of Aboriginal peoples now form a vicious circle. As the Aboriginal land base has been increasingly eroded, Aboriginal economies have been destroyed. At the same time, Aboriginal economies have been and continue to be deliberately interfered with by the government of Canada, which has had the effect of making dispossession possible.

137 For example, the Indian Act prohibits the sale of agricultural products by western "Indians" without official permission and license. This provision was first introduced in 1881 and was most likely intended to prevent competition between Aboriginal and non-Aboriginal farmers. In 1941, the provision was expanded to extend to all Indians in Canada regarding the sale of furs and wild animals. The provision, not surprisingly, drove Aboriginal farmers and traders out of business. Despite its direct discriminatory intent and effect, this provision, though apparently no longer enforced, has not been removed from the Act.

The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 1, pp.294-295

F. Other Strategies of Exclusion Which Have Made Dispossession Possible

138 Although the focus of this submission is the deprivation of subsistence, self-determination and self-sufficiency of Aboriginal peoples by dispossession of land, it is important for the Committee to be aware that this dispossession has been made possible by the widespread institutionalized political, economic and social marginalization of Aboriginal peoples.

139 Examples of widespread institutionalized exclusion, to name only a limited few, include:

a. The fact that Aboriginal peoples were denied the vote until 1960;b. A "residential school" system which operated from the early 1900s to the late 1960s and which took Aboriginal children from their home communities and attempted to "civilize" them by re-socializing them in the values of European culture, prohibiting the use of Aboriginal languages, discouraging Aboriginal customs and beliefs and by removing the children from their lands, preventing them from learning the traditional skills necessary to live off the land and perpetuate a subsistence culture;c. The undermining of traditional governance structures by the Indian Act provisions which imposed Indian Act "band council" systems, with delegated authority from the Minister of Indian Affairs only, on Aboriginal communities;d. The further undermining of even these imposed governance structures by paternalistically placing ultimate control of native bands in the hands of the superintendent general of the Department of Indian Affairs; e. The fact that pursuant to the Indian Act between 1927 and 1951, Aboriginal peoples were statutorily prevented from asserting their rights in courts of law, since the Act prohibited the solicitation of funds for an Indian legal claim without the prior approval of the superintendent general of the Department of Indian Affairs.

f. The fact that s.67 of the present Canadian Human Rights Act purports to exempt any provision of the Indian Act or any provision made under or pursuant to that Act, thus insulating the major legal foundation for the ongoing marginalization and dispossession of Aboriginal peoples in Canada from human rights scrutiny by Canada's highest official federal human rights body.

V. CANADA's SQUALID SECRET: THE CRISIS CONDITIONS IN ABORIGINAL COMMUNITIES

a. The Right to an Adequate Standard of Living:
Poverty in Aboriginal Communities

140 In its Report and Responses to the Committee's questions, the government of Canada begins to reveal the severe poverty among Aboriginal peoples in Canada.

141 The government of Canada admits (in somewhat muted terms) that Aboriginal peoples are comparatively poorer than other residents of Canada:

Low-income people are ... possibly overrepresented by Aboriginal people on reserves as indicated by 44% of those Aboriginal people receiving social assistance...Third Period Report of Canada, para. 254Aboriginals are more likely to be in low-income groups than is the general population. In 1990, 13% of Aboriginals aged 15 and over reported no income, and a further 12% reported income of under $2,000, compared to 9% and 6% of the general population.

Third Periodic Report of Canada, Statistical Annex, para. 7.3.2

This second set of statistics, however, obscures the greater poverty of the Aboriginal people who have remained "on reserve" or in their traditional lands, rather than migrating to cities and away from their people and traditional lands.

142 In 1991, 48% of the on-reserve population in Canada survived solely on social assistance payments received from government. This represents a 54% increase in social assistance recipients since 1983 -- almost twice the growth rate of the on-reserve population for the same period. In 1991, the average annual payment per recipient family unit on social assistance was $7,480.00, which is a figure 60% below the official government low income designation (cut off) in 1991.

A Review of Trends in Federal Government Expenditures on Indian Programs and Services 1983/84 to 1993/94 Through Its Department of Indian and Northern Affairs , Canada Prepared by N. Hawkins & Associates for the Assembly of First Nations (May 1993)

143 In 1991, 47.2% of all Aboriginal peoples reported an income of less than $10,000 as compared to 27.7% of Canadians overall. This number does not reflect respondents who reported no income at all.

Statistics Canada, "Canada's Aboriginal Population, 1981-1991: A Summary Report", research prepared for the Royal Commission on Aboriginal Peoples (1995); reported in The Report of the Royal Commission on Aboriginal Peoples (1996) at Volume 5, p.29

144 Although all Aboriginal peoples have incomes far lower than non-Aboriginals Canadians, Aboriginal women and Aboriginal persons with disabilities are comparatively even poorer. The average annual income of Aboriginal women on-reserve is $10,121 as compared to the $17,600 average earned annually by non-Aboriginal women. In 1986

b. The Right to an Adequate Standard of Living: Aboriginal On-Reserve Housing

146 The government of Canada has a constitutional and legal responsibility to house Aboriginal peoples as a result of Canadian governments being responsible for pushing native peoples off our land, and placing us on tiny reserves that are federal government land. For the past seventeen years, however, federal Aboriginal housing programs -- tied to inadequate fixed budgets -- have ignored growing housing need both on and off reserves.

Toward a New Housing Crisis in Canada, An Unofficial Report for Habitat II, submitted by the Grand Council of the Crees ( June 1996), p.7
The Report of the Royal Commission on Aboriginal Peoples (1996), p.374

147 Aboriginal communities experience severe conditions of overcrowding and poor housing conditions due to housing shortages and poorer standards for housing in Aboriginal communities. Not only do Aboriginal peoples live in conditions of overcrowding, but we live in houses which are smaller and have fewer rooms than non-Aboriginal Canadians. As the Canadian Mortgage and Housing Corporation noted, one in four Aboriginal homes do not have full operation bathroom facilities. The number of Aboriginal homes without central heating is six times greater than for Canadians overall. As well, according to the Department of Indian Affairs 1997 data, only 52% of existing homes in Aboriginal communities are adequate. Canada in its report to the United Nations Conference on Human Settlements stated that "Aboriginal Housing Conditions are Among the Most Severe in Canada". In sum, Aboriginal "on-reserve" housing in Canada is a national disgrace: inadequate, overcrowded, unsanitary and demonstrably unhealthy.

Basic Departmental Data 1997 (Ottawa: Indian and Northern Affairs Canada, 1997) p.47
Habitat II, Canadian National Report, United Nations Conference on Human Settlements (June 1996), pp. 7 and 19
The Health of Canada's Children: A CICH Profile, 2nd Edition (1994) at p.137
Canadian Human Rights Commission, Annual Report 1992
Third Periodic Report of Canada, Background Report, Article 11: Housing, pp.18, 19

148 Despite an Aboriginal population growth of approximately 60% between 1983 and 1994, the severe backlog and the well-documented extreme conditions, the government of Canada has done nothing about the problem. Expenditures on housing by the government of Canada on Aboriginal housing programs were capped in 1982-83 at $93 million and have not increased since. In 1994 there was a one-time $43 million increase in spending as a result of the dramatic increase in the population due to Bill-C31 which finally eliminated the discriminatory exclusion of Aboriginal women from Indian status when they married non-Aboriginal men. As a result of inflation, the purchasing power of this $93 million has been eroded year after year. According to the Report of the Royal Commission on Aboriginal Peoples, the subsidies provided by the Department of Indian Affairs "can buy just over half what they could" in 1983. DIAND subsidies for construction of new homes average approximately $30,000 and are capped at a maximum of $46,000. Today the cost of a new home is $90,000 or more. The DIAND subsidies for rehabilitation and repair of Aboriginal homes is $6,000. Substantial renovations today cost $20,000 or more.

A Review of Trends in Federal Government Expenditures on Indian Programs and Services 1983/84 to 1993/94 Through Its Department of Indian and Northern Affairs, Canada Prepared by N. Hawkins & Associates for the Assembly of First Nations (May 1993)
The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 3, p.384, 385
Toward a New Housing Crisis in Canada, An Unofficial Report for Habitat II, submitted by the Grand Council of the Crees ( June 1996), p.5

149 The assistance provided by the Canadian Mortgage and Housing Corporation by way of loan subsidies has declined over the years. In 1991, 1,800 units were built with CMHC assistance, in 1994 this number dropped to 1,350 and in 1995 it dropped further to approximately 700. Similarly, in 1991, 1200 units were repaired through CMHC assistance, in 1995 the number was 600.

The Report of the Royal Commission on Aboriginal Peoples (1996), volume 3, p.384

150 Moreover, governmental expenditures on housing for Aboriginal peoples are persistently presented in a vacuum so that it is impossible to determine the relationship between government spending and housing need. For example, in response to Question #42 put to the government of Canada by the Committee in May 1998, the government of Canada has discussed only its anticipated expenditures on housing for Aboriginal peoples and its estimation of the number of new units that will be built over the current fiscal year. The government of Canada, however, fails to provide the Committee with any data with respect to housing need in Aboriginal communities, which would reveal the profound inadequacy of the government's measures.151 Similarly, the focus in domestic reports such as those produced each year by the Department of Indian Affairs and Northern Development has been on existing housing stock and the number of units which require replacement. The graph on the following page illustrates that the percentage of adequate units is increasing, thereby suggesting that the housing situation is improving. No record is made by government, however, tracking the housing backlog and whether current expenditures are keeping pace with current needs - which would indicate in fact that the housing situation is not improving.

152 The Canadian Human Rights Commission has criticized the government of Canada for failing to ensure that spending on housing is commensurate with need: "the backlog has not diminished, and further, ...the Department's housing budget has not kept up with even the normal demand for replacement." The Commission estimated that in 1991 $840 million would be required to eliminate the housing backlog that year. Conditions since 1991 have only worsened.

Canadian Human Rights Commission, Annual Report 1991, p.18

153 The current housing backlog for creation, replacement and repair of Aboriginal housing units in Canada is approximately 59,000 units. In this context it becomes abundantly clear that the commitment by the government of Canada to build 4,600 new housing units this year in no way addresses the disparities between Aboriginal housing and non-Aboriginal housing.

154 In 1996, the Report of the Royal Commission on Aboriginal Peoples estimated an immediate need for replacement and repair of 6,500 units -- in our view a gross underestimation. The Commitment by the government of Canada, if it is even honoured, to repair 3,800 houses in 1998-99, still falls far short of meeting even these underestimated repair and replacement needs.

The Report of the Royal Commission on Aboriginal Peoples (1996), volume 3, p.397

155 In the nine James Bay Northern Quebec Cree communities alone our housing backlog for 1999 is 1,178 units, or 25% of the new housing which the government of Canada has committed for all of Canada.

156 In its report to the Habitat II, United Nations Conference on Human Settlements, the government of Canada recognized the housing-need consequences of the rate of growth in the Aboriginal population and the already poor housing conditions and committed itself to improving these conditions:

The Aboriginal population is...expected to grow at a faster rate than the general population resulting in housing demand that is well above the Canadian average. The fact that Aboriginal households have a high incidence of crowded, inadequate and unaffordable housing means that improved housing conditions are a priority for this group.

Habitat II, Canadian National Report, United Nations Conference on Human Settlements (June 1996), p. 15

157 Unfortunately, as can be seen from the tables on housing on Page 51, the gap between the backlog and the existing number of homes has increased over the past nine years. The situation, therefore, has not been and is not improving. 158 The government of Canada is deliberately attempting to obscure its failure to address the severe housing needs of Aboriginal peoples in Canada by presenting apparently large numbers, such as its purported $450 million to be "spent for on-reserve housing", to the Committee and to Aboriginal peoples. The government of Canada surely knows that neither the Committee nor Aboriginal peoples in Canada have the resources to analyse and deconstruct these numbers.

159 The $450 million spent by the government of Canada on Aboriginal housing is not primarily spent on construction and repair of housing units. In 1994-95 large portions of the funds characterized to the Committee as funds for Aboriginal housing were in fact forms of social assistance and were directed to energy (heating and light), rent subsidies for the extremely poor, and financing subsidies for poor people who live in dwellings that are financed by loans and rental-housing subsidies. None of these programs create new housing or improve existing housing units.

Report of the Royal Commission on Aboriginal Peoples (1996), Volume 3, pp.385-388

160 The numbers presented to the Committee by the government of Canada with respect to the government's commitment to Aboriginal housing, therefore, are actually evidence of inequitable treatment, differential and discriminatory standardsand non-fulfilment of Covenant obligations.

161 In our view, it is unacceptable that the government of Canada presents numerical "evidence" in this manner to this Committee, possibly intending that the Committee should be impressed by the apparently large numbers, but without providing the necessary comparative and trend data that make the discriminatory, inadequate and other unacceptable aspects of these numbers apparent. We therefore urge the Committee to ask the government of Canada the following questions in respect of the conditions of housing in Aboriginal communities:

QUESTION 7:

It has come to the Committee's attention that the government of Canada does not publicly compare its expenditures on housing for Aboriginal peoples with the actual need for housing in Aboriginal communities. Will the government of Canada publish this information on a regular basis, for example in the Department of Indian Affairs annual report of its "Basic Departmental Data", and make it available to this Committee?

QUESTION 8:

When does the government of Canada intend to remove the "cap" presently in place on expenditures in respect of Aboriginal housing?QUESTION 9: Does the government of Canada intend to commit additional resources, from funding outside of the budget of the Department of Indian Affairs, to the construction of new housing units in Aboriginal communities so as to meet the current housing backlog?

QUESTION 10:

Does the government of Canada have a 1998 figure for the number of Aboriginal housing units that need to be built or replaced in order to meet the Aboriginal housing needs on-reserve? If not, why not?

c. The Right to an Adequate Standard of Living:
"Adequate" Water Supply in Aboriginal Communities

Safe drinking water is something that most Canadians can take for granted. Not so for Aboriginal citizens.

Canadian Human Rights Commission, Annual Report 1995, p.20

Access to potable water, adequate sanitation and waste disposal services has been routine for so long in this country that most Canadians take them for granted. The same access is not guaranteed for Aboriginal people, however, and their health suffers as a result.

Royal Commission on Aboriginal Peoples (1996), Volume 3, p.176

162 Canada's land mass contains a large proportion of the world's fresh water. Access to adequate quantities and quality of drinking and household water is something which most Canadians take for granted and which they consider to be a service as of right. 163 As noted by the Canadian Human Rights Commission however (see quote at the head of this section), Aboriginal peoples are not beneficiaries of the same standard of entitlement. The Royal Commission on Aboriginal Peoples has noted the same violation of our social rights (see quote at head of this section).

164 Although, as stated in Canada's Third Periodic Report, 81.5% of all on-reserve dwellings may have cold running water, the government of Canada fails (deliberately, in our view) to address the issue of the quality of the water that comes through the pipes into Aboriginal homes. A 1995 study conducted by the Department of Indian Affairs found that at least 20% of water systems in Aboriginal communities posed a significant health risk. The health of Aboriginal peoples in hundreds of Aboriginal communities are imperilled in this way.

Canadian Human Rights Commission, 1995 Annual Report, p.20
Health Canada and DIAND, Community Drinking Water and Sewage Treatment in First Nations Communities (Ottawa: Public Works and Government Services, 1995)

165 Our James Bay Cree waters have at times been contaminated by disease as a result of our "reserve crowding" and community infrastructure supplied by the federal government being inadequate. For example, in 1975 our James Bay Cree communities began to make repeated requests that our communities be provided with proper water and sanitation facilities as guaranteed under our Treaty. It was not until an epidemic killed eight of our children in 1980 and international pressure was put on Canada to provide us with clean water supplies that the government of Canada finally acted and fulfilled its obligations under the Treaty.

166 Similarly, there have been outbreaks of Hepatitis "A" in Aboriginal communities across Canada linked to overcrowded housing, and lack of good systems of water distribution and sewage removal.

Elizabeth Robinson, MD, "The Risk of Hepatitis in Quebec First Nations Communities", Public Health Module, Cree Region of James Bay, Montreal General Hospital, 30 July 1998

167 Further, water which in urban and non-Aboriginal communities would be considered abhorrent, is discriminatorily deemed by the government of Canada to be "adequate" for Aboriginal peoples. In some James Cree communities as well as other Aboriginal communities across Canada, our people are forced to buy bottled water on meagre incomes since the water which is piped into our homes is undrinkable and, in some cases, too dirty to use for bathing or laundering our clothes. 168 In some Aboriginal communities in Canada the water has an overwhelming noxious smell and is so murky that when one fills a large container with water, one can barely see to the bottom. The government of Canada, however, has refused to respond to these unbearable and unacceptable conditions on the basis that despite the "unpleasantness" of the water, it is not technically harmful to our health. By contrast, in recent years, water supply in a major Canadian city was affected by algae and had a funny smell, though no discolouration; needless to say, the smell was eliminated within days.

169 The government of Canada in its "Responses" to the Committee has indicated that it intends to spend $175 million annually on major water and sewage projects. The Royal Commission on Aboriginal Peoples estimated that even at a rate of spending of $500 million over a period of three years "it will take up to nine years to complete remedial measures" for water and sewage in Aboriginal communities and concluded that "this delay...[is] too long, given the threats to health" and urged that remedial work be completed in five years at additional cost to the government of Canada.

Royal Commission on Aboriginal Peoples (1996), Volume 3, p.381

170 Regardless of cost, we submit that the government of Canada is obliged to immediately provide Aboriginal peoples with the most basic services which other Canadians have considered a right for decades.

d. The Right to an Adequate Standard of Living:
The Right to Adequate Food

171 As a result of hydro-electric and other forms of development on our lands and our rivers, our waters have been contaminated in the past by mercury causing the fish to have high concentrations of mercury. Fish is a staple food of the Crees and many of our people who have lived on a diet of contaminated fish have shown irreversible neurological disorders. The mercury contamination has caused our people to decrease the amount of fish in our diets and to refrain from fishing -- which was a central Cree cultural and subsistence activity. The loss of this activity and source of country food has caused other public health impacts including depression among members of our communities.172 In general, food availability is a difficult issue for Aboriginal peoples, especially Aboriginal peoples living in Northern "reserves" where the country food has been contaminated or destroyed by industry, and the non-traditional food is extremely expensive and of very poor quality and nutritional base.

173The Aboriginal People's Survey revealed that 8.3% of all respondents and 12.7% of Inuit respondents reported food availability as a problem.

Statistics Canada, Language, Tradition, Health, Lifestyle and Social Issues, 1991 Aboriginal People's Survey, 1993

e. Consequences of Inadequate Housing, Water and Sanitation, and Food Supplies

The current state of Aboriginal housing and community services poses acute threats to health. Diseases spread by inadequacies of water, sanitation and housing (tuberculosis and infections, for example) are more common among Aboriginal people than among non-Aboriginal people. Dwellings are unsafe and there is a lack of fire protection services. On reserves, DIAND figures show that 200 dwellings are lost because of fire each year. In the North, solid waste dump sites and lack of sewage treatment create environmental hazards that contaminate country food consumed by Aboriginal people. Such direct threats to health would not be tolerated in other Canadian communities. They must not be allowed to persist among Aboriginal people either. {Emphasis added.]

Report of the Royal Commission on Aboriginal Peoples, Volume 1, Chapter 4: "Housing", at p.373

174 The conditions of Aboriginal housing, food and water supply described above relate not only to our right to an adequate standard of living under article 11 of the Covenant, but also to our rights to the highest attainable standard of health under article 12 of the Covenant and to self-determination under article 1 of the Covenant including our right to our own means of subsistence. 175 The housing crisis in our communities is literally forcing our children to leave our communities to seek better living conditions. The housing conditions, therefore, contribute to the systemic and institutionalized pressure on Aboriginal peoples to assimilate and disappear, along with our inherent rights to our lands. In other cases, the housing shortage inevitably inhibits family formation.176 Another result of the poor housing conditions in our communities which has been well-documented, is the severe impact on our standard of health. Aboriginal peoples experience significantly greater morbidity and mortality from infectious diseases than do Canadians generally, directly as a result of housing, food, water and sewage standards. The conditions of overcrowding also contribute to increased rates of mental illness, alcoholism, tuberculosis and family violence in Aboriginal communities.

f. Article 12: Levels of Aboriginal Health

177 Across all areas of the health spectrum, Aboriginal peoples are significantly worse off than Canadians overall. Our physical health, but equally our mental health, continues to suffer under the strain of relocations, dispossession and marginalization. The shocking rates of suicide, family violence and alcoholism in our communities attests to this strain and trauma.

Infant and Child Mortality

178 The Committee rightfully noted in its concluding observations on the Second Periodic Report Submitted by Canada on June 10, 1993 that the mortality rates of infants had declined, particularly among Aboriginal Canadians.

179 Although the decline in infant mortality in Aboriginal communities is certainly a positive improvement, it is important to remember that the Aboriginal rate of infant mortality is still almost twice as high as the rate of infant mortality overall. As well, the rate of sudden unexplained death for Indian babies is three times as high as the Canadian rate and for Inuit babies it is five times the Canadian rate.

The Health of Canada's Children: A CICH Profile, 2nd Edition (1994) at pp.141,142
Trend in First Nation Mortality 1979-1993 (Ottawa: Health Canada), p.27

180 Such decreases as there have been in the Aboriginal infant mortality rate among Aboriginal peoples reflects lower death rates in the first 28 days of life due to improvements in health care. The decrease in death rates, unfortunately, do not necessarily continue after the first 28 days of life. Deaths of Aboriginal infants between 28 days and one year remain three times higher than the Canadian average.

Trend in First Nation Mortality 1979-1993 (Ottawa: Health Canada)

181 Further, Aboriginal children have a much higher death rate due to injuries. The injury and death rate for Aboriginal infants is almost four times that of Canadians overall; the rate for preschoolers is more than five times greater; and the rate for Indian teenagers is more than three times greater.

The Health of Canada's Children: A CICH Profile, 2nd Edition (1994) at p.143

Suicide: A Reflection of our Communal Trauma and a Crisis for our Youth

182 Rates of suicide among our youth and other community members are a profound reflection of the continuing alienation and marginalization of Aboriginal peoples and the depths of the poverty and other social ills in our communities and in the view of the Royal Commission sends a "blunt and shocking message to Canada" that "a significant number of Aboriginal people in this country believe they have more reasons to die than to live".

Choosing Life, Special Report on Suicide Among Aboriginal People, Royal Commission on Aboriginal Peoples (1995) at p.1

183 The rate of suicide among our youth is at least five to six times higher than that among non-Aboriginal youth and is three times higher for all age groups than in Canada overall. As well, rates of suicide attempts (which are more frequent among female youth) are many times higher than among non-Aboriginal youth.

Choosing Life, Special Report on Suicide Among Aboriginal People, Royal Commission on Aboriginal Peoples (1995) at p.1

184 The suicide rates of our young people has been partly explained by the Royal Commission on Aboriginal Peoples as resulting from the fact that:

...Aboriginal youth face additional challenges. They have to deal with a surrounding society that devalues their identity as Aboriginal persons; and they may have few supports or role models in communities battered by the ill effects of colonialism.

Choosing Life, Special Report on Suicide Among Aboriginal People, Royal Commission on Aboriginal Peoples (1995) at p.29

185 Research has also revealed increased suicide rates in communities that have experienced dispossession or forced relocations. For example, when the James Bay Cree people of Chisasibi were relocated as a result of the Hydro-Quebec La Grande River project, "a rash of suicides among young people" followed.

Ronald Niezen, Defending the Land (Boston: Allyn & Bacon, 1998) at p. 85

186 Similarly, in Cross Lake Manitoba, where our brothers and sisters of the Pimicikamak Cree Nation live, suicide has been extremely elevated since the hydro-electric flooding of their traditional lands in the early 1970s. The Pimicikamak Crees are now struggling to deal with and quantify this tragedy; their own initial calculations are leading to the extraordinary finding that suicide in their community may be at the extraordinary level of 350/100,000. This suicide rate, if correct, is approximately 10 times higher than the rate for Aboriginal peoples in Canada and 23 times higher than the rate for non-Aboriginal Canadians.

Data communicated verbally by Ronald Niezen, PhD (Cambridge), Anthropologist; researcher in Cross Lake, Manitoba; (October 1998)

187 The Grand Council of the Crees finds the government of Canada's attribution of these rates of suicide in part to the "isolation" of our communities offensive and racist. Once again, the government of Canada is attempting to assign the cause for severe social ills in our communities to factors over which it purportedly has no control. Suicide in our communities has been identified by the Royal Commission and other studies as being a direct reflection of the identity crises faced by our youth which are the legacy of dispossession, colonialism, a culture which has denied and suppressed aboriginal identity and the social and economic ills which have followed from these policies.

Rates of Disability

188 Consistent with the higher rates of violence, injurious deaths, suicides, overcrowding and unsanitary conditions in our communities, is the fact that aboriginal peoples have much higher rates of disability than non-Aboriginal Canadians. In 1991, 31% of Aboriginal adults reported at least some disability as compared to 13% in the Canadian population at large. Our youth have rates of disability three times as high as the corresponding Canadian figure: 22% as opposed to 7%. Aboriginal women have higher rates of disability than Aboriginal men.

E. Ng for Statistics Canada, Health Division, Disability Among Canada's Aboriginal Peoples in 1991, 8:1 Health Reports (1996) at pp. 25, 27

189 The dimensions of the disabilities are also broader for Aboriginal peoples since we encounter difficulties that many non-Aboriginal disabled persons do not. Our communities usually do not have the services necessary to fulfill our needs and the overcrowding in and conditions of our homes often exacerbates our difficulties. In order to get proper care, we must leave our homes and our communities to obtain care in the south; unfortunately in doing so, we often continue to face unequal treatment, prejudice and alienation in the south.

E. Ng for Statistics Canada, Health Division, Disability Among Canada's Aboriginal Peoples in 1991, 8:1 Health Reports (1996) at pp. 25

Other Health Indicators of our Poverty and Dispossession

190 Diabetes affects aboriginal people disproportionately having reached epidemic levels, and the cause has been linked to changes in diet as a result of the decline in our subsistence cultures due to the destruction of our land base and, therefore, decreased access to our country food.

Royal Commission on Aboriginal Peoples (1996), Volume 3, p.143
Health Canada, Medical Services Branch data (1998) derived form the Statistics Canada Aboriginal Peoples Survey (1991)

191 The AIDS epidemic in Canada has stabilized. In Aboriginal communities, however, the cases of HIV/AIDS has increased steadily over the past decade. In addition, Aboriginal people with AIDS are generally younger than their non-Aboriginal counterparts, with 31% being diagnosed before the age of 30 as compared to 19% of non-Aboriginal people.

Health Canada, Medical Services Branch data (1998); at http://www.hc-sc.gc.ca/msb/fnihp/aids_e.htm

192 Rates of tuberculosis are forty-three times higher among registered Indians than among non-Aboriginal Canadians born in Canada. The rate of Aboriginal tuberculosis in Canada is comparable to the rates of tuberculosis in Africa. The Royal Commission on Aboriginal Peoples has identified "improvements in housing, sanitation and nutrition" as being an urgently needed response to the tuberculosis epidemic.

Article 6: The Right to Gain a Living by Work of Our Own Choosing -- Endemic Mass Unemployment

193 The unacceptable and extraordinary levels of unemployment in Aboriginal communities is well documented in Canada's Statistical Annex and in Canada's Response to Question #26 of the Committee. 194 At least one quarter of the entire Aboriginal population is unemployed. In James Bay Cree communities, the unemployment rate is more than three times higher than the national rate. This rate of unemployment, as unacceptable as it is, is not as severe as in many other communities in Canada where Aboriginal peoples are living "on-reserve".

195 In some Aboriginal communities (for example Cross Lake in Manitoba), 80% or more of the inhabitants have no access to meaningful employment and are, therefore, not working. (These particularly shocking situations are masked by the government of Canada's statistical aggregation.)

Statistical Annex, Third Periodic Report of Canada (1998) pp.15-16
Federal Responses to the Questions of the Committee, p.14
Socio-Economic

196 We have argued in this submission that the level of unemployment in Aboriginal communities is a result of our dispossession and economic marginalization, destroying our abilities to be self-sustaining and independently economically viable communities. The unemployment in the James Bay Cree communities, however, is also a result of flagrant non-implementation of the James Bay Northern Quebec Agreement by the non-Cree parties. Under the Agreement, a commitment was made to provide training, employment and full and affirmative economic benefit of the transformation of our lands and economy to accommodate hydro-electric development. This commitment has not been respected.197 After more than 20 years, of the over 700 workers on the La Grande Hydro-Electric Project (which was responsible for the flooding of our traditional lands), fewer than 5 are Crees! Overall in 1996, only 12 Crees were employed full-time and 10 part-time with the responsible state-owned utility, Hydro Quebec. Similarly, of the over 15,000 jobs in the forestry sector created by forestry on our traditional lands, fewer than 50 are Crees. In one case (the Troilus Mine and Inmet Corporation) we have achieved an employment target that we managed to set with the company in spite of resistance from the government of Quebec. Such initiatives should be multiplied a thousand fold.

See Ronald Niezen, Defending the Land , p.86

198 Taking account of the population growth, the current reality of the Cree labour market is that approximately 200 new jobs a year will have to be created to maintain a level of unemployment which will nevertheless still remain at four times the national average. This situation will not be rectified unless the government of Canada fulfills its Treaty obligations to us to train, recruit and employ our people in industrial sectors that destroyed, and are now exploiting the resources in, our lands.199 In addition to the fulfilment of Treaties, in our view, the only answer to the levels of Aboriginal unemployment and welfare "on-reserve" as well as "off-reserve" is to restore meaningful access and control over adequate lands and resources to Aboriginal peoples and to allow us to once again develop viable economies. We support the statement by the government of Canada that it "shares the RCAP [Royal Commission on Aboriginal Peoples] focus on building economic self-reliance and community well-being through capacity building, and Aboriginal peoples' increased access to land, resources and opportunity".

200 We are concerned, however, that the commitment by the government of Canada of "sharing the focus" of the Report of the Royal Commission on Aboriginal Peoples is vague and without substance. Accordingly, we suggest that it would be useful for the

Committee to ask the government of Canada the following question with respect to Aboriginal unemployment:

Question 11: Given the endemically high and increasing rate of mass unemployment among the Aboriginal population, what concrete steps does the goverment of Canada intend to take to improve employment opportunities for Aboriginal peoples in a manner which is consistent with the Royal Commission's focus on building economic self-reliance in Aboriginal communities?

GOVERNMENT SPENDING IS ACTUALLY DECLINING AND IS NOT MEETING THE NEED

201 In response to the above submissions with respect to the severe need in Aboriginal communities for adequate housing, water, sewage and employment opportunities, it is anticipated that the government of Canada will inform the Committee (as it has informed the Canadian public) that it is already spending CAN $6 billion a year (approximately US $3.88 billion); that the spending is already beyond its means; and that it cannot reasonably spend any more.

Peter Cheney, "The Money Pit an Indian Band's Story" The Globe & Mail, 24 October 1998, A1, A6 and A7

202 As mentioned earlier, a pervading perception abetted by the government of Canada is that Aboriginal peoples "cost the government too much money", and that despite the extraordinary need in our communities, it is unreasonable to expect the government to provide us with services of the quality and quantity taken for granted by non-Aboriginal Canadians in the rest of the country.

203 This perception (which we believe to be officially nurtured) serves to justify the failure by the government of Canada to adequately fund health, sanitation housing and other social programs commensurate with established need -- and with our social, economic and cultural human rights. It also makes it possible for non-Aboriginal Canadians to dismiss our plight by thinking that there "simply isn't enough money to go around" and that we are already receiving more than other Canadians (and, implicitly, more than we deserve).

204 These positions are false and prejudicial, and we feel reflect the discriminatory standards applied by the government of Canada concerning Aboriginal peoples in Canada.

205 CAN $6 billion may appear at first glance to the Committee be a considerable amount of money. The use by the government of Canada of this statistic, however, is extremely misleading:

206 First, the government of Canada includes in this total payments in respect of Indigenous land claims: compensation with respect to Aboriginal lands which have been stolen, encroached upon or otherwise taken. It is misleading to include these compensation payments with ordinary benefits of residence or citizenship. They are payments in the nature of compensation for injury, damage and loss. (Moreover, they are payments which are decades, and in some cases centuries overdue which bear no relationship to the real value of the loss or the benefit which the government of Canada has gained from the colonization and use of these lands.)

207 Second, the $6 billion figure obscures the fact that spending on all Canadians who live in the North is very high. The Report of the Royal Commission on Aboriginal Peoples states that the cost of provision of services in the North is up to 100% higher than in the Canadian south. Figures regarding spending with respect to Aboriginal peoples, therefore, should be adjusted for the elevated costs of living in remote and isolated locations.

The Report of the Royal Commission on Aboriginal Peoples (1996), Volume 5, p.39

208 Finally, and most importantly, spending by the government of Canada on Aboriginal peoples living "on-reserve" or on our traditional lands has not increased in real terms since 1982/83 but has in fact decreased.

A Review of Trends in Federal Government Expenditures on Indian Programs and Services 1983/84 to 1993/94 Through Its Department of Indian and Northern Affairs , Canada Prepared by N. Hawkins & Associates for the Assembly of First Nations (May 1993)

209 Moreover, as is revealed in the table on the following page, the only reason why overall federal government spending on Aboriginal peoples has even remained essentially constant over the years is because of the dramatic increase in federal spending on Aboriginal social assistance. Between the period of 1982/83 and 1992/93, government spending on social assistance for Aboriginal peoples "on-reserve" increased by 34%. At the same time, however, government spending on housing and economic development dropped dramatically. This can in part explain the severe housing and employment shortages.

A Review of Trends in Federal Government Expenditures on Indian Programs and Services 1983/84 to 1993/94 Through Its Department of Indian and Northern Affairs, Canada. Prepared by N. Hawkins & Associates for the Assembly of First Nations (May 1993)

210 It is also both important and interesting to note that during the same period, government spending in general on all Canadians increased in real terms by 21.7%. Government spending on Aboriginal peoples over the same period, however, decreased in real terms by 3.4%.

A Review of Trends in Federal Government Expenditures on Indian Programs and Services 1983/84 to 1993/94 Through Its Department of Indian and Northern Affairs , Canada Prepared by N. Hawkins & Associates for the Assembly of First Nations (May 1993).

211 In light of the enormous relative developmental challenge facing Aboriginal peoples in Canada, this discrepancy in government funding is highly prejudicial and discriminatory -- not to mention a fundamental breach of our social, economic and cultural human rights.

Respectfully submitted.

Geneva, Switzerland; 16 Nov 1998