Making Indigenous Peoples’ Rights in Canada Visible

Although the United Nations have established mechanisms to exercise political authority and influence states’ policies and even though the global civil society puts pressure on their actions, indigenous peoples continue to face discrimination and violations of their rights. Canada constitutes a great example of a democratic country that is supposed to respect and protect human rights but violates the aboriginal rights extensively. The massive energy projects, Coastal GasLink pipeline, Trans Mountain pipeline and Site C dam, being developed in North and West Canada, do not respect the traditional lands and resources of the indigenous populations that live in the region and have been strongly condemned by the First Nations, the actors of the global civil society and the UN. Nonetheless, the Canadian government continues to fully support their construction. This paper aims to analyse the violations conducted against indigenous populations’ lands by the Canadian government and the reaction of the UN and global civil society, using a series of qualitative and quantitative data based on papers, analyses and reports of Institutes, Study Centers and Organizations.


Introduction
There was "an alarming increase in attacks, killings and the criminalization of the activities of indigenous human rights defenders" according to the annual report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples published on 14 July 2020 (OHCHR, 2020: 15). The case of Canada is being selected to be analysed, because even though the state of Canada is considered to be one of the freest countries in the world, based on Freedom House

The international legal framework for indigenous peoples' rights
The first major step in recognizing and protecting indigenous populations' rights was the adoption of the Indigenous and Tribal Peoples Convention, by the International Labour Organization (ILO) in 1989. As far as land rights are concerned, states shall recognize and have regard to the "total environment of the areas which the peoples concerned occupy or otherwise use", incorporating the safeguard of the natural resources belonging to these regions (ILO, 1989: 5). However, this Convention is legally binding exclusively for states that have ratified it (ILO, 1989: 11) and these include only 24 countries so far (ILO, n.d.).
In the course of time, the UN has developed certain mechanisms to raise awareness of indigenous issues and enhance their role within the UN system, such as the Permanent Forum on Indigenous Issues, the Special Rapporteur's mandate and the Expert Mechanism on the Rights of Indigenous Peoples (UN DESA, n.d.).
In September 2007, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted.
As Article 26 clearly underlines, "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" (United Nations, 2008: 10). Moreover, the Article 32 stresses that "states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources [...]" (United Nations, 2008: 12). The statement is not legally binding upon Member States and is characterized as a recommendation (Economic and Social Council, 1962 to fully support the Declaration and officially adopted it (Fontaine, 2016) The inherent right of self-government related to the identity, culture, tradition, land and natural resources of indigenous peoples' communities, is enshrined in the Canadian Constitution (Anaya, 2014: 6). In this context there are numerous territorial self-governance agreements between these populations and the provincial governments and the federal Government that authorize the former to "create their own constitution, as well as their own regulations on land, resources, [...]" (Lindeman, 2019). According to the Land Claims Agreements Coalition there are also 26 "comprehensive land claim" or "modern" agreements that have been signed between the Crown and indigenous communities and settle their land and resource rights (Land Claims Agreements Coalition, n.d.).
Although these agreements along with multiple laws and policies can be demonstrated as good practices and have positive outcomes, Anaya (2014: 18) states that they present numerous challenges, such as the long duration of the negotiation procedure primarily caused by the contradictory approach of the Canadian government that downplays or even rejects the recognition of aboriginal rights.
Additionally, as far as First Nations are concerned, the regime that predominates in the exercise of self-government remains the Indian Act which does not allow the effective implementation of this constitutionally secured right (Anaya, 2014: 13).

II. The industrial development in Canada violating indigenous populations' rights The Coastal GasLink Pipeline
The Coastal GasLink Pipeline that crosses the northern region of British Columbia was approved in 2014 by the BC Environmental Assessment Office (EAO) (B.C. Ministry of Environment, 2014). A vital part of the CGL route traverses the territory of the Wet'suwet'en community, with the hereditary chiefs rejecting the pipeline construction, estimating that it will damage both their traditional lands and their activities, such as hunting and fishing (Office of the Wet'suwet'en, 2014: 13). Although the band councils that have endorsed the project have the right to make decisions over individual reserves based on the Indian Act (Hunsberger & Larsen, 2021: 5), the indigenous group claims that hereditary leaders can assert authority over the whole traditional area. In the case of "Delgamuukw v. British Columbia" in 1997, the Supreme Court of Canada indeed recognized that the "Wet'suwet'en hereditary chiefs were the rightful holders of title to their unceded territories". However, the case was sent back to trial and thus the title claim of the Wet'suwet'en nation has remained unresolved

III. The UN and the global civil society
In the context of the UNDRIP, James Anaya had already recommended in his 2014 report that resource extraction should not take place "on lands subject to aboriginal claims without adequate consultations [...]", regarding the indigenous peoples' concerns over TMX and the Site C dam (Anaya, 2014: 18, 22). In November 2020, the UN Committee on the Elimination of Racial Discrimination (CERD) addressed the permanent representative of Canada to the UN and condemned the construction of these projects due to the lack of "the free, prior and informed consent" of indigenous populations (Li, November 2020: 1). The Committee had called upon Canada to halt any construction processes initiated related to the TMX, the Site C dam and the CGL pipeline "until free, prior and informed consent is obtained" from the aboriginal groups affected. The Canadian government was further urged to ensure that the Royal Canadian Mounted Police (RCMP) will not apply force to the Secwepemc and Wet'suwet'en nations and along with any relative services will depart from their traditional territories (CERD, December 2019: 1-2).
In January 2020, Amnesty International Canada addressed directly to the Prime Minister of Canada, underscoring the urgency of achieving full compliance with the CERD's decisions (Neve, Langlois, 2020 Manuel, an indigenous activist describes her peoples' fight against the major development projects, particularly regarding the TMX pipeline (Kroemer, 2019: 95-98). MRG recommends states to ensure that any development initiatives demand to take into consideration of aboriginal communities' rights and in case that they are affected, the projects should be halted (Kroemer, 2019: 17-18).

Conclusions
In all three cases examined above it is proved that land rights were infringed. Although CERD called upon the halt of the construction of these projects due to lack of adequate consultations with the indigenous communities concerned and the human rights agencies urged Canada to abide by CERD's decisions, the government did not respond to the call, thus continuing violating their land rights.
Since the decisions made are not legally binding, the UN's exercise of power as a political authority is limited. Although the aim of this paper is not to provide an extensive list of specific suggestions, transforming the UNDRIP into a resolution with legal binding effects and implementing economic and political sanctions on any states that violate its commitments would contribute to the protection of indigenous peoples' rights. Specifically in the case of Canada, it is strongly recommended to solve aboriginals' claims to their ancestral lands and establish a legal and institutional framework to ensure adequate consultation concerning all projects affecting indigenous communities. As Kanahus Manuel says "Everything we are is from the land… Right now, one of the biggest threats to our land and livelihood is industry, as it has always been".