Report No. 105 (2009) IACHR. Petition No. 592-07 (Canada)

• Petition Number: 592-07
• Report Number: 105
• Respondent State: Canada
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Grupo De Tratado Hul'quimi'num, Canadá

REPORT No 105/09 PETITION 592-07 ADMISSIBILITY HUL’QUMI’NUM TREATY GROUP CANADA October 30, 2009 I. SUMMARY 1. On May 10, 2007. the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission,” "the Commission," or the “IACHR”), received a complaint lodged by the Hul’qumi’num Treaty Group and the Indigenous Peoples Law and Policy Program of the University of Arizona (hereinafter the “petitioners”), on behalf of six indigenous peoples and their members, who make up the Hul’qumi’num Treaty Group (hereinafter, “the alleged victims,” “the Hul’qumi’num peoples,” or “HTG”), against the State of Canada (hereinafter “the Canadian State,” “Canada” or the “State”). The petition alleges that the State has violated the human rights of the HTG because of the absence of demarcation, established boundaries and recording of title deed to their ancestral lands; the lack of compensation for HTG ancestral lands currently in the hands of private third parties; the granting of licenses, permits and concessions within ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and of those sites the alleged victims consider sacred. 2. The petitioners allege that the Canadian State is responsible for violating the rights guaranteed under the provisions of Article XXIII (right to property), Article XIII (right to culture), and Article II (equality before the law) of the American Declaration of the Rights and Duties of Man (hereinafter “the Declaration,” or the “American Declaration”) and of other human rights enshrined in international common law. The petitioners claim exception from the requirement of exhaustion of domestic remedies because, they argue, domestic legislation does not provide for adequate and efficient remedies to serve the specific claims of the petitioners and, also, due to the petitioners’ lack of financial means. 3. For its part, the State argues that the petition should be declared inadmissible because the human rights of the alleged victims have not been violated since the petitioners have not exhausted all domestic remedies available; because, despite their lack of financial means, the petitioners have access to government loans to file legal actions, and because certain alleged facts do not constitute violations of the American Declaration but of other international instruments that are not connected. Therefore, the State maintains that the requirement of prior exhaustion of domestic remedies established in Article 31 of the Rules of Procedure of the Inter-American Commission on Human Rights has not been met. 4. As this report indicates, after analyzing the information and the arguments submitted by the parties with regard to admissibility, the Commission concludes that the petition is admissible with regard to alleged violations of Articles II, III, XIII and XXIII of the American Declaration. The Commission resolves to notify the parties of this decision, to publish it and to include it in its Annual Report to the General Assembly of the Organization of American States. II. PROCESSING BEFORE THE COMMISSION A. Processing of the Petition 5. The Commission received the petition on May 10, 2007, and assigned it number 592-07. The petitioners also requested the adoption of precautionary measures in order to safeguard the integrity of the ancestral lands of the Hul’qumi’num peoples. On January 15, 2008, the Commission forwarded copies of the relevant parts of the petition to the State, and requested that the submit its response within a period of two months, in accordance with Article 30 of the Rules of Procedure of the IACHR. The State’s response was received on April 30, 2008. 6. The IACHR also received additional information from the petitioners on the following dates: June 6, 2008; July 11, 2008; September 24, 2008; October 14, 2008; November 21, 2008; February 13 and 16, 2009; March 10, 2009; and on September 4, 2009. Those communications were duly forwarded to the State. 7. The IACHR also received observations from the State on the following dates: October 17, 2008; December 15, 2008; February 25, 2009; March 9, 2009; July 31, 2009; and on October 27, 2009. Those communications were duly forwarded to the petitioners. 8. The parties presented oral arguments regarding the admissibility of the petition during hearings held by the Commission within the framework of the 133rd and 134th Sessions, held respectively on October 27, 2008, and on March 23, 2009. 9. On February 24, 2009, and on March 16, 2009, the IACHR forwarded to the parties the amicus curiae briefs filed by Canadian indigenous peoples and organizations. III. POSITION OF THE PARTIES A. Position of the petitioners 10. The petitioners point out that all the efforts carried out by the HTG to secure recognition, protection and restitution of their ancestral lands are based on the plundering of their territory beginning in the 19th century, when 85 percent of their ancestral lands were transferred by force to private third parties without prior consultation and without any compensation for the lands taken. 11. The petitioners point out that, despite this loss of territory, for a long time, the alleged victims hunted, fished, gathered food and practiced ceremonies and spiritual activities within a good portion of their ancestral lands. The petitioners allege that, during the last 7 years, those activities have been significantly limited due to the dramatic increase in concessions granted to private individuals and real estate developers for the construction of homes, commercial buildings and resorts within that territory, as a result of the 2010 Winter Olympic Games being held in British Columbia. The petitioners maintain that those concessions were granted without prior consultation of the alleged victims. In addition to encouraging the destruction of the environment by the cutting down of trees this type of commercial and residential development requires, the petitioners allege that these activities have prevented the alleged victims from continuing to practice their culture and their way of life such as hunting, fishing, and gathering food, as well as to practice their religious activities by denying them access to their sacred sites, since those who hold the licenses to those places have prohibited HTG members from entering and trespassers would be subject to arrest and prosecution were they to engage in traditional ceremonies in certain private lands. 12. The petitioners point out that the recognition of their ancestral rights to those lands is essential to protecting them from such development and to preserve their culture and their way of life. They point out that, for decades, the members of the HTG have sought the recognition of their ancestral rights through meetings, letters and through written complaints filed with various government agencies and authorities. Since 1994, the petitioners contend, the HTG has participated in a process of political negotiation of treaties with the State known as the British Columbia Treaty Commission - BCTC. The petitioners point out that the process has not been able to produce any results due to the fact that the State is not willing to conduct negotiations involving lands in private hands or to discuss compensation for the loss of ancestral lands. The petitioners allege that the State makes reaching these agreements contingent on the indigenous peoples not filing lawsuits based on any issue object of the negotiations while the negotiations are being conducted or after a treaty has been ratified; otherwise, the process of negotiation would end or the indigenous peoples would have to compensate the State for any lawsuit filed afterwards. The petitioners explain that the imposition of those conditions is part of the policy of “extinguishment” or “renouncement” pursued by the State, which they consider discriminatory toward indigenous peoples due to the fact that, under this government policy, the benefits they gain through negotiated treaties are obtained in exchange for recognition of the rights of the indigenous peoples to only a reduced portion of the ancestral lands in question, and without any possibility of reclaiming the rest of their ancestral lands in the future. 13. The petitioners argue that such conditions imply that the HTG could only acquire rights to state lands of the “Crown,” which represent only 12% of their ancestral lands. The petitioners point out that if the HTG were to file suit in court to claim the remainder of its territory, it would not be able to take part in the process of negotiation of treaties which would result in the loss of time and money they have already invested in that process. Furthermore, the petitioners contend that a petition for recognition of their “aboriginal title” would have no chance of success because Canadian legal precedent indicates that the State has never recognized the existence of the aboriginal title of an indigenous people to their ancestral lands. Therefore, the petitioners contend that the conditions imposed by these domestic remedies imply a discriminatory situation that violates the right of equality before the law. 14. With regard to the preceding matter, the petitioners add that, in 2004, representatives of the Cowichan Peoples of the HTG enlisted the services of the law firm Ratcliff & Company, which is recognized as one of the experts in defending the interests of indigenous peoples in Canada, to study the viability of filing a lawsuit to obtain restitution of their ancestral lands. The petitioners point out that the report prepared by that law firm concluded that, in light of Canadian legal precedent, such a lawsuit would have no chance of success given that there were no domestic remedies available to...