In this powerpoint lecture presentation, Robert A. Williams, Jr., E. Thomas Sullivan Professor of Law and and Faculty Co-chair, Indigenous Peoples Law and Policy Program at the University of Arizona Rogers College of Law, discusses recent cases and developments within the Organization of American States (OAS) Inter-American human rights system on the issue of indigenous peoples' property rights under international law. This background and history provides the framework for his presentation of the case, Hul'qumi'num Treaty Group (HTG) v. Canada, presently at the Merits Stage before the Inter-American Commission on Human Rights (IACHR). Professor Williams serves as lead counsel for the IPLP Program at the University of Arizona, which filed the petition on behalf of the six HTG First Nations to the IACHR, alleging human rights violations committed by Canada in the British Columbia Treaty Commission process. Professor Williams traces the progressive development of indigenous peoples' property rights under international law and within the inter-American human rights system, beginning with the exclusion of many of the world's indigenous tribal peoples from the United Nations (UN) decolonization process, to the adoption in 2007 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). He concludes with an explanation of the IACHR's 2011 ruling on admissibility of HTG's human rights complaint alleging violations by Canada of the American Declaration on the Rights and Duties of Man, an OAS human rights instrument binding on Canada as a charter member of the OAS.

1. Robert A. Williams, Jr.
E. Thomas Sullivan Professor of Law and American Indian Studies
Lead Counsel, Hul’qumi’num Treaty Group v. Canada
Indigenous Peoples Property Rights in the
Inter-American Human Rights System:
Hul’qumi’num Treaty Group v. Canada

2. The United Nations Decolonization Process
and the “Blue Water Thesis”

3. United Nations Human Rights System
The United Nations International Covenant
on Civil and Political Rights
Article 1:
“All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their
economic, social, and cultural development.”
Article 27:
“In those States in which ethnic,
religious or linguistic minorities exist,
persons belonging to those
minorities shall not be denied the
right, in community with other
members of their group, to enjoy their
own culture, to profess and practice
their own religion, or to use their own
language.”

4. International Labour Organization
(No. 169) on Indigenous and Tribal Peoples
Inclusion of provisions concerning
indigenous children in the UN Convention
on the Rights of the Child
Inclusion of provisions concerning
indigenous peoples in major international
environmental instruments
The UN Working Group on Indigenous
Populations
The Proposed American Declaration on
the Rights of Indigenous Peoples (OAS)
The Modern Indigenous Human Rights Movement

5. UN Human Rights Committee
General Comment No. 23, interpreting article 27
(1994)
“With regard to the exercise of
the cultural rights protected under
article 27, the Committee observes
that culture manifests itself in many
forms, including a particular way of
life associated with the use of land
resources, especially in the case of
indigenous peoples. That right may
include such traditional activities
as fishing or hunting and the right
to live in reserves protected by law.”

6. UN Committee on the Elimination of Racial Discrimination
General Recommendation No. 23 on Indigenous Peoples
(1997)
“In many regions of the world indigenous
peoples have been, and are still being, discriminated
against and deprived of their human rights and
fundamental freedoms … they have lost their land
and resources to colonists, commercial companies
and State enterprises. Consequently, the
preservation of their culture and their historical
identity has been and still is jeopardized.”
“In many regions of the world indigenous
peoples have been, and are still being, discriminated
against and deprived of their human rights and
fundamental freedoms … they have lost their land
and resources to colonists, commercial companies
and State enterprises. Consequently, the
preservation of their culture and their historical
identity has been and still is jeopardized.”

7. United Nations Declaration on the Rights of Indigenous Peoples
(as adopted by the UN General Assembly, September 13, 2007)
Article 26
Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.
Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership
or other traditional occupation or use, as well as those which they have
otherwise acquired.
States shall give legal recognition and protection to these lands, territories
and resources. Such recognition shall be conducted with due respect to the
customs, traditions and land tenure systems of the indigenous peoples
concerned.
***
Article 28
Indigenous peoples have the right to redress, by means that can include
restitution or, when this is not possible, of a just, fair and equitable
compensation, for the lands, territories and resources which they have
traditionally owned or otherwise occupied or used, and which have been
confiscated, taken, occupied, used or damaged without their free, prior and
informed consent.

8. Canada’s Position on the UN Declaration
"...Canada's position has remained consistent and
principled. We have stated publicly that we have
significant concerns with respect to the wording of the
current text, including the provisions on lands,
territories and resources; free, prior and informed
consent when used as a veto; self-government without
recognition of the importance of negotiations;
intellectual property; military issues; and the need to
achieve an appropriate balance between the rights and
obligations of indigenous peoples, member States and
third parties.”
Statement by Ambassador McNee to the General Assembly on the
Declaration on the Rights of Indigenous Peoples, 13 September 2007.

9. Report of the UN Special Rapporteur on the situation
of the human rights and fundamental freedoms of
indigenous peoples, S. James Anaya (2008)
The United Nations Declaration on the Rights of
Indigenous Peoples represents an authoritative
common understanding, at the global level, of the
minimum content of the rights of indigenous peoples,
upon a foundation of various sources of international
human rights law. The product of a protracted drafting
process involving the demands voiced by indigenous
peoples themselves, the Declaration reflects and
builds upon human rights norms of general
applicability, as interpreted and applied by United
Nations and regional treaty bodies, as well as on the
standards advanced by ILO Convention No. 169 and
other relevant instruments and processes.

10. Inter-American Human Rights System (OAS)
Instruments
Charter of the Organization of American States
Proclaims commitment of Member States to protect fundamental human rights.
American Declaration on the Rights And Duties of Man
Affirms many of the same rights as those in Universal Declaration of Human
Rights,:
Article 2: “All persons are equal before the law and have the rights and duties
established in the Declaration, without distinction as to race, creed, sex,
language, creed or any other factor.”
Article 23: “Every person has a right to own such private property as meets
the essential needs of decent living and helps to maintain the dignity of the
individual and of the home.”
Institutions
Inter-American Commission on Human Rights
- Authority based on OAS Charter; Comprised of 7 independent experts
- Can issue State reports, theme reports and adjudicate individual, group
and inter-state complaints.

11. The Case of Awas Tingni vs. Nicaragua
Inter-American Court of Human Rights
Judgment of August 31, 2001
(“The Miskito Coast”) (King Robert Henry Clarence and court 1893)

12. The Case of Awas Tingni vs. Nicaragua
Background of the Case

13. The Case of Awas Tingni vs. Nicaragua
Decision of the Inter-American Court (2001)
• Nicaragua violated the right to property (article 21) by granting
concessions to exploit the resources on Awas Tingni traditional lands
and by not titling and demarcating those lands in favor of the
community. The right to property includes the collective right of
indigenous peoples to the enjoyment of their traditional lands and
natural resources.
• “…For indigenous communities, relations to the land are not merely a
matter of possession and production but a material and spiritual
element which they must fully enjoy, even to preserve their cultural
legacy and transmit it to future generations.”
• Nicaragua must cease acts which could cause agents of the State, or
third parties, to affect the existence, value, use or enjoyment of the
property of the Awas Tingni community and adopt measures of
legislative, administrative, and whatever other character for the
effective delimitation, demarcation, and titling of indigenous lands.
• The land titling process must be in accordance with the customary
law, values, usage, and customs of the communities and with their full
participation.

14. The Case of Dann vs. the United States
Inter-American Commission on Human Rights
Report of October 2001 (Released July 2002)
“Where property and user rights of indigenous peoples arise
from rights existing prior to the creation of a state, [indigenous
peoples have the right to] recognition by that state of the
permanent and inalienable title of indigenous peoples relative
thereto and to have such title changed only by mutual consent
between the state and respective indigenous peoples when they
have full knowledge and appreciation of the nature or attributes
of such property. This also implies the right to fair compensation
in the event that such property and user rights are irrevocably
lost.”

15. U.N. Committee on the Elimination of Racial Discrimination
(Early Warning and Urgent Action Procedure, United States of America, March 2006)
6. The Committee is concerned by the State party’s
position that Western Shoshone peoples’ legal rights to
ancestral lands have been extinguished through gradual
encroachment, notwithstanding the fact that the Western
Shoshone peoples have reportedly continued to use and
occupy the lands and their natural resources in
accordance with their traditional land tenure patterns. The
Committee further notes with concern that the State party’s
position is made on the basis of processes before the
Indian Claims Commission, “which did not comply with
contemporary international human rights norms, principles
and standards that govern determination of indigenous
property interests,” as stressed by the Inter-American
Commission on Human Rights in the case Mary and Carrie
Dann versus United States (Case 11.140,27 December
2002).

16. The Case of the Maya Indigenous Communities
of the Toledo District vs. Belize
Decision of the Inter-American Commission
(Report issued 2004)
Belize was found to have violated Article 23 of the American Declaration by
failing to take effective measures to recognize the communal property rights
to the lands traditionally occupied and used by the Maya, and by granting
concessions to third parties to utilize the traditional property and resources
of the Maya people without obtaining “effective consultations:”
“[T]he right to use and enjoy property may be impeded when the State
itself, or third parties acting with the acquiescence or tolerance of the State,
affect the existence, value, use or enjoyment of that property.”
The independent nature of indigenous peoples’ property right:
“Accordingly, the organs of the inter-American human rights system have
recognized that the property rights protected by the system are not limited to
those property interests that are already recognized by states or that are
defined by domestic law, but rather that the right to property has an
autonomous meaning in international human rights law. In this sense, the
jurisprudence of the system has acknowledged that the property rights of
indigenous peoples are not defined exclusively by entitlements within a state’s
formal legal regime, but also include that indigenous communal property that
arises from and is grounded in indigenous custom and tradition….”

17. CASE OF SAWHOYAMAXA INDIGENOUS COMMUNITY V. PARAGUAY
INTER-AMERICAN COURT OF HUMAN RIGHTS
(JUDGMENT OF MARCH 29, 2006)
1) traditional possession of their lands by indigenous people has
equivalent effects to those of a state-granted full property title;
2) traditional possession entitles indigenous people to demand
official recognition and registration of property title;
3) the members of indigenous peoples who have unwillingly left
their traditional lands, or lost possession thereof, maintain property
rights thereto, even though they lack legal title, unless the lands
have been lawfully transferred to third parties in good faith; and
4) the members of indigenous peoples who have unwillingly lost
possession of their lands, when those lands have been lawfully
transferred to innocent third parties, are entitled to restitution
thereof or to obtain other lands of equal extension and quality.
Consequently, possession is not a requisite conditioning the
existence of indigenous land restitution rights.

18. Case of the Saramaka People v. Suriname
Inter-Am. Ct. H.R., Judgment of November 28, 2007
[I]n order to guarantee that restrictions to the property rights of the members of
the Saramaka people by the issuance of concessions within their territory does
not amount to a denial of their survival as a tribal people, the State must abide by
the following three safeguards:
• First, the State must ensure the effective participation of the members of the
Saramaka people, in conformity with their customs and traditions, regarding
any development, investment, exploration or extraction plan … within
Saramaka territory. By “development or investment plan” the Court means
any proposed activity that may affect the integrity of the lands and natural
resources within the territory of the Saramaka people, particularly any
proposal to grant logging or mining concessions.
• Second, the State must guarantee that the Saramakas will receive a
reasonable benefit from any such plan within their territory.
•Thirdly, the State must ensure that no concession will be issued within
Saramaka territory unless and until independent and technically capable
entities, with the State’s supervision, perform a prior environmental and
social impact assessment.
These safeguards are intended to preserve, protect and guarantee the special
relationship that the members of the Saramaka community have with their
territory, which in turn ensures their survival as a tribal people.

19. Canada’s Negotiating Mandates in the BCTC Process
• “Private lands” are not “on the table”
• Just compensation is not on the table/ BCTC process is
a “political process”
• “Interest-based as opposed to rights-based approach”
• “Modified Rights/ Non-Assertion Model”
• Indemnity requirement and full and final settlement/
extinguishment for a treaty
• “Litigate or negotiate” policy
• The loan policy - “$397M - and growing” (Vancouver Sun October 6, 2010)
• Municipal model of governmental powers/ refusal to
recognize inherent aboriginal right of self-government
Canada’s Comprehensive Claims Process and
the British Columbia Treaty Commission (BCTC)

20. Canada’s Comprehensive Claims Process
and Indigenous Peoples Human Rights
UN HUMAN RIGHTS COMMITTEE
Comments on Canada (1999)
The Human Rights Committee
recommended that Canada reform its laws
and internal policies to guarantee the full
enjoyment of rights over land and
resources for the indigenous people of
Canada. Additionally, the Committee
recommended that Canada abandon “the
practice of extinguishing inherent
aboriginal rights … as incompatible with
article 1 of the Covenant. “
British Columbia’s First Nations

21. The Committee, while noting that the State party has
withdrawn, since 1998, the requirement for an express
reference to extinguishment of Aboriginal rights and titles
either in a comprehensive claim agreement or in the settlement
legislation ratifying the agreement, remains concerned that the
new approaches, namely the “modified rights model” and the
“non-assertion model”, do not differ much from the
extinguishment and surrender approach. It further regrets not
having received detailed information on other approaches
based on recognition and coexistence of rights, which are
currently under study.
UN Committee on Economic, Social and Cultural Rights
Concluding Observations: Canada (May 22, 2006), at para. 16.

22. Hul’qumi’num Treaty Group v. Canada
in the
Inter-American Human Rights Commission

23. “The Indians really have no right to the lands
they claim, nor are they of any actual value or
utility to them; I cannot see why they should
either retain these lands to the prejudice of
the general interests of the Colony, or be
allowed to make a market of them either to
Government or to individuals.”
Joseph Trutch, Commissioner of Land Works for the
colonial government in British Columbia, 1867
The Origins of the “Denial” Policy
In British Columbia
“I think they are the ugliest and laziest
creatures I ever saw, and we should, as soon
think of being afraid of our dogs as of them.”
Letter from Joseph Trutch to his wife Charlotte Trutch,
expressing his views on the Indians of the Oregon
Territory , 23 June 1850 (Trutch Papers)
Joseph Trutch, c. June 1870

24. The 1884 E &N Railway Grant and the Establishment of Reserves

25. R. v. Syliboy (1929)
1 D.L.R. 307 (Canada)
…But the Indians were never regarded as an independent power. A
civilized nation first discovering a country of uncivilized people or
savages held such country as its own until such time as by treaty it
was transferred to some other civilized nation. The savages’ rights
of sovereignty, even of ownership, were not recognized. Nova Scotia
had passed to great Britain not by gift or purchase or even by
conquest of the Indians but by treaty with France, which had
acquired it by priority of discovery and ancient possession, and the
Indians passed with it….
…In my judgment the Treaty of 1752 [with the Micmac] is not a treaty
at all and is not to be treated as such; it is at best a mere agreement
with a handful of Indians giving them in return for good behavior
food, presents, and the right to hunt and fish as usual — an
agreement that, as we have seen, was very shortly after broken.

26. Large Private Land Owners in Hul’qumi’num Traditional Territory

27. PETITION
to the
INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS
submitted by
THE HUL’QUMI’NUM TREATY GROUP
against
CANADA
Submitted May 10, 2007
112. By unilaterally granting rights and interests in the traditional
lands and resources of the Hul’qumi’num peoples to private third
parties without ever consulting them, seeking their consent, or
offering restitution or payment of just compensation in return for a
valid extinguishment of their aboriginal title and property rights and
by permitting damaging logging and other development activities on
these lands used, occupied and relied upon by the Hul’qumi’num for
their cultural survival, Canada is acting in violation of the right to
property, the right to restitution for its taking, the right to cultural
integrity, the right to consultation and other human rights belonging
to the Hul’qumi’num as indigenous peoples.

28. SUPPLEMENTAL REQUEST FOR PRECAUTIONARY MEASURES
and
REQUEST FOR AN ON-SITE VISIT
In the case of
THE HUL’QUMI’NUM TREATY GROUP
against
CANADA
Case No. P-592-07
June 6, 2008
****
5. The threats to the rights of the Hul’qumi’num peoples have
dramatically and dangerously increased over the past year since
HTG filed its petition with the Commission. Since that time, HTG
and its legal representatives have been collecting information
and analyzing data on clear-cutting of forest lands and real estate
development activity on Hul’qumi’num traditional territory within
key areas of the State’s original “E & N Railway grant.”

31. 18. The CVRD Development Services Department Report for 2007
shows rapid growth in the key development permitting areas of zoning
amendments, subdivision activity, and development permit applications
over the past decade (1998-2007)…The statistics on the “Potential
Number of Parcels Created” by subdivision applications are particularly
alarming, showing a ten-year trend toward ever larger and larger
subdivisions, capped by 2007’s near threefold increase over the prior
year (from 270 to 752 potential parcels!):
1998- 52
1999- 92
2000- 97
2001- 115
2002- 185
2003- 303
2004- 401
2005- 316
2006- 270
2007- 752

32. 19. The statistics on “Development Permit Applications”
received by the CVRD also reveals the growing nature of the
threat to Hul’qumi’num traditional lands in this region, with a
doubling in the number of development permit applications
received by the government between 2006 and 2007! The ten-year
trend shows a ten-fold rate of exponential growth in the number of
planned development projects that have been authorized by the
State on the Hul’qumi’num peoples’ traditional lands:
1998- 8
1999- 5
2000- 9
2001- 11
2002- 4
2003- 8
2004- 15
2005- 41
2006- 45
2007- 96

33. Inter-American Commission on Human Rights
REPORT No. 105/09
Petition 592-07
Admissibility
Hul’qumi’num Treaty Group
Canada
37. [S]ince 1994, the HTG, through the treaty negotiation process of the BCTC, has
brought to the attention of official authorities the central facts contained in the petition,
to wit: legal recognition and/or restitution of their ancestral lands, including lands that
are in private hands, as well as the implementation of a process of prior consultation as
indispensable measures to protect those lands from the actions of private third parties.
However, the BCTC process has not allowed negotiations on the subject of restitution or
compensation for HTG ancestral lands in private hands, which make up 85% of their
traditional territory. Since 15 years have passed and the central claims of HTG have yet
to be resolved, the IACHR notes that the third exception to the requirement of exhaustion
of domestic remedies applies due to the unwarranted delay on the part of the State to
find a solution to the claim. Likewise, the IACHR notes that by failing to resolve the HTG
claims with regard to ancestral lands, the BCTC process has demonstrated that it is not
an effective mechanism to protect the right alleged by the alleged victims. Therefore,
the first exception to the requirement of exhaustion of domestic remedies applies
because there is no due process of law to protect the property rights of the HTG to its
ancestral lands.

34. Inter-American Commission on Human Rights
REPORT No. 105/09
Petition 592-07, Admissibility
Hul’qumi’num Treaty Group v. Canada
October 30, 2009
39. The IACHR also considers relevant the experiences of other Canadian
indigenous groups described in the amicus curiae briefs filed with the IACHR, which show
the difficulties they have faced when trying to access the legal remedies the State contends
must be exhausted by the HTG in order to obtain recognition and protection of its
ancestral lands. The Commission notes that the jurisprudence cited by the State
recognizes the existence of the aboriginal title, the communal nature of indigenous
property rights, and the right to consultation in the Canadian legal system. But, the amicus
briefs show that none of these judgments has resulted in a specific order by a Canadian
court mandating the demarcation, recording of title deed, restitution or compensation of
indigenous peoples with regard to ancestral lands in private hands…
41. It bears pointing out that, the jurisprudence of the IACHR has
established that a petitioner may be exempt from the requirement of having to exhaust
domestic remedies with regard to a complaint, when it is evident from the case file that any
action filed regarding that complaint has no reasonable chance of success based on the
prevailing jurisprudence of the highest courts of the State. The Commission notes that the
legal proceedings mentioned above do not seem to provide any reasonable expectations of
success, because Canadian jurisprudence has not obligated the State to set boundaries,
demarcate, and record title deeds to lands of indigenous peoples, and therefore in the case
of HTG, these remedies would not be effective under recognized general principles of
international law.

35. HTG”s Request for Precautionary Measures
50. …Based on the irreparable and imminent harm from clear-cutting
of forest lands and other land development activities outlined in its
petition and the acceleration of private and commercial land
development activities described in the current request, HTG
respectfully requests the Commission to call upon Canada to:
(a) suspend consideration and/or approval of all official
community plans and zoning amendments, subdivision activity,
alterations to agricultural lands reserves and development permit
applications and any other land or natural resource development
activities on lands traditionally used and occupied by the
Hul’qumi’num indigenous peoples within the CVRD and North
Cowichan District that are located within the E & N Railway grant area,
and ensure that such development activity does not resume or
occur, until a mutually agreed upon suitable arrangement is
negotiated between the government of Canada and the Hul’qumi’num
indigenous communities concerned…