Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 28 (17 December 1980)


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Date: 1980-12-17
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 28 (17 December 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 28

Wednesday, December 17, 1980

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.


Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada


RESPECTING:

The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980


WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980


SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Bird
Bosa
Lapointe
Lucier
Roblin
Stanbury
Thériault
Tremblay—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Corbin
Crombie
Epp
Fulton
Gimaiel
Hawkes
Hervieux-Payette (Mrs.)
Irwin
Lapierre
Mackasey
Manly
McGrath—15

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons

On Wednesday, December 17, 1980:

Mr. Corbin replaced Mr. Henderson;
Mr. Allmand replaced Miss Campbell (South West Nova);
Mr. Crombie replaced Mr. Schellenberger;
Mr. Lapierre replaced Mr. Allmand.

Pursuant to an order of the Senate adopted November 5, 1980:

On Wednesday, December 17, 1980:

Senator Bosa replaced Senator Austin;
Senator Lapointe replaced Senator Williams;
Senator Bird replaced Senator Rizzuto;
Senator Stanbury replaced Senator Connolly.


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MINUTES OF PROCEEDINGS

WEDNESDAY, DECEMBER 17, 1980
(50)

[Translation]

The Special Joint Committee on the Constitution of Canada met at 3:38 p.m., this day, the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Bird, Bosa, Lapointe, Lucier, Stanbury, Thériault and Tremblay.

Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Corbin, Epp, Hawkes, Mrs. Hervieux-Payette, Messrs. Irwin, Joyal, Lapierre, Mackasey, Manly, McGrath and Schellenberger.

Other Members present: Messrs. Dantzer, Gimaïel, Henderson, La Salle and Nystrom.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.

Witnesses: From the Attikamek-Montagnais Council: Mr. René Simon, Chairman; Mr. Aurélien Gill, Chief of Pointe-Bleue; and Ms. Renée Dupuis, Legal Counsel. From the Union National party: Mr. Michel Le Moignan, Interim Leader, and Mr. Bertrand Goulet, M.N.A.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980, and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

The witnesses of the Attikamek-Montagnais Council made statements and answered questions.

In accordance with a motion agreed to by the Committee at the meeting of Friday, November 7, 1980, the Chairman authorized that the document entitled “Report of the Fourth Russell Tribunal on the Rights of the Indians of the: Americas—November 1980” submitted by the Attikamek-Montagnais Council, be printed as an appendix to this day’s Minutes of Proceedings and Evidence (See Appendix “CCC-5”).

The witnesses of the Union Nationale party made statements and answered questions.

At 6:54 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


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EVIDENCE

(Recorded by Electronic Apparatus)

[Translation]

The Joint Chairman (Mr. Joyal): Order, please. I would ask the honourable members of the committee to take their seats around the table so that we might commence this afternoon’s work. I would also ask the members of the press who have taping or filming equipment to leave the room in order that this afternoon’s discussion with our guest get underway immediately.

Before welcoming this afternoon’s guest, I would ask you to excuse Senator Harry Hays who unfortunately could not come this afternoon because be bas been held up outside Ottawa. He will join us tomorrow morning.

It is both a privilege and an honour for me to welcome this morning, on behalf of all the members of this committee, the representatives of the Attikamek-Montagnais Council. I am pleased to welcome. Mr. René Simon, Chairman of the Council, Mr. Aurélien Gill, Chief of Pointe-Bleue, Mr. Ernest Ottawa, the Attikamek nation representative and Renée Dupuis, the lawyer who is accompanying the delegation.

I would first of all like to invite Mr. René Simon to make the presentation, as is usually done upon opening our sessions, afterwards I believe the· members of the delegation would answer any questions or react to any comments that the honourable members of the committee might wish to put forward.

Mr. Simon.

Mr. René Simon (President, Attikamek-Montagnais Council): Thank you, Mr. Chairman.

First of all, I would like to say that we are very grateful to the joint committee for having accepted the presentation that we wish to make today, i.e., our organization’s proposal. I will proceed without further adieu, because I know the period of time allotted for questions is quite short and also because our text has not been translated into English. I would therefore like to commence right away and to read the text in full, so that the members of the committee present today understand better the nature and the intent of the point of view we are going to make known to them today.

We, the Attikamek people of higher St-Maurice and the Montagnais people of Lac St-Jean and Côte-Nord du St-Laurent areas know full well that we are in a dominated situation, given the difficulties and the humiliations that we are faced with every day. We must, in the interests of the future of our peoples, of our culture and of our children, do all that is in our power, use all our energy in order to obtain recognition of our aboriginal rights, of our rights as Indians and of the rights of our sovereign peoples, in order that we might be able to build, on this basis, an acceptable future for generations to come. We

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know that we no longer have a choice. We must accept to devote ourselves fully to this cause and to use all the means at our disposal or else we are condemned to perish within Canadian society.

We find it bath humiliating and extremely unjust fo have to prove and demonstrate the nature of our rights and the extent of the harm caused to our territories and to our culture. The situation is made even more depressing by the fact that we must address ourselves to institutions that are the judges of the case, especially knowing that it is first and foremost the interests of the white majority that dominate the general picture.

The history of the domination we have undergone has taught us that the right of the strongest is nearly always the best. We continue to believe, despite this unfortunate context, that more and more representatives of the dominating group will come to accept the rights of our minorities as being equal to and as fundamental as those of the majority. We still hope that the rules of the game will change so as to take into account the promises made by your ancestors concerning our lands and its resources and that we will no longer feel menaced in any way by the whites. The courts of law put in place by your governments have only barely taken into account these promises which have served as a basis, from many points of view, for your institutions.

We ask that our cultural traditions be taken into account in the context of the setting up of these rules. We do not, for example, understand why your jurists and legislators take into account only the principles of written law of European origin, leaving completely aside the principles of unwritten law that belong to the aboriginal peoples of North America. We do not understand, either, why the idea of private ownership of land, which is yours, should take precedent over the principle of collective ownership, which is ours. The idea of private ownership of land and its ressources corresponds, in our view, to the basis of a system founded on exploitation of man, which our ancestors have always rejected.

Also, it is a well known fact that the territories that we have occupied since time immorial were not dealt with in treaties or agreements reached by government. The Dorion report on the integrity of the territory of Quebec, the Malouf decision, the agreements on Bay James and on the North and Northeastern regions of Quebec, the evidence given to the Standing Committee on Indian Affairs concerning Bill C-9, are all examples which demonstrate the existence of Indian rights concerning the attikamek and montagnais territories, as well as territories belonging to other Indian nations.

We, the attikamek and montagnais peoples, were sovereign until the arrival of the first Europeans and their subsequent colonization of our lands. Up until that time, we exercised all those rights which are the attributes of full and complete sovereignty: the control and the exploitation of our territories, of their resources, economic self-sufficiency autonomous politics. We had our own institutions, our language, our own culture, which we had arrived at from thousands of years of living in harmony with the laws of nature. Even if in the eyes of the whites we were considered primitive, retarded and

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miserable peoples, we were so much aware of the quality of our social and cultural system, based on equality for all, that we chose to refuse to change it dramatically, to the great disappointment of missionaries, and administrators, and adventurers. It is precisely this refusal to let ourselves be assimilated and the refusal by those people I just mentioned to understand our system of values and our institutions that lead to the situation which we are now in, which has become intolerable.

Despite all the difficulties that we have encountered and despite the fact that we have been shunted off and confined on small reserves, we have not given up our sovereignty or our territories which our ancestors have occupied and exploited since the beginning of time. Today, we believe that the recognition of our sovereignty should be the basis for the urgent and necessary redefinition of our relationships within Canadian society. This redefinition should put us on the same footing as the other two so-called founding peoples. in short, this is background of age old traditions, we wish to reestablish and reinforce our own cultural values in those institutional areas which touch us and we wish to see the constitution of this country include guarantees for the respect of our aboriginal rights.

Our reference to traditional values clearly indicates that we refuse the option, considered interesting, of progressive assimilation into Canadian society, which has already insidiously been undertaken and which is either directly or indirectly encouraged by all the political, administrative and economic agents which you deal with. We no longer wish to be considered as foreigners in our own country. We believe that the rights which are ours because we were the first occupants of a vast part of this country authorize us to make this choice. And we also believe that the members of the majority should accept this choice.

In our view, your acceptance of this choice is one of the basic conditions for the establishment of durable relations between our different peoples. If multiculturalism is really to be one of the fundamental characteristics of Canadian society, its cornerstone should most certainly be the recognition of the specifity of North American Indian culture.

From the very famous statements made by Jack Marshall between 1920 and 1930, to the more recent stands taken by Mr. Justice Malouf and by Mr. Justice Berger, many opinions expressed by jurists and decisions rendered by judges have reinforced the principle of recognition of aboriginal rights for North American Indians. These rights have as a matter of fact been officially recognized by different Canadian and American governments, upon the signing of various treaties, agreements, compensation decisions, et cetera.

Referring to the Canadian nation in 1872, Mr. Justice Berger writes that the new country’s policy and statutes were profoundly marked by the principle of native property rights. However, all the judgments, treaties and agreements failed to provide a clear definition of the nature of aboriginal rights. We do not agree with the restrictive interpretation given to such rights by the representatives. of Canadian society.

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We proclaim that our aboriginal rights are rights of sovereignty and how could it be otherwise since the original situation of native people was one of complete economic, social, political, cultural and religious autonomy. We were the absolute masters of the land and its resources, of the lakes, the rivers and forests which provided us with our livelihood in a state of total interdependence with nature.

We do not believe that the arrival of foreigners from Europe, even though they may have been accepted to some extent by our forefathers, brought about any modification in our status as a people with sovereignty over its territory. Our sovereignty could only have been lost through armed conquest or our explicit consent to the alienation of our rights to the profit of our dominant society. But neither or these events occurred.

We realize that the position of Canadian society and its negation of our rights is founded solely on force. When you are a numerical advantage and the superiority of your arms and technology were not as pronounced as they have become in the past century, your attitude was notably different. We were treated as allied nations enjoying full autonomy. Now, confident of your power and fearful of not obtaining access to our lands and our huge resources, you hesitate to acknowledge our sovereign rights. Why should all the rights over land and its resources as well as economic and political control be confined to white governments alone? If we Amerindian people are as equal as you before the Creator of all things, we must enjoy the same rights as you.

Jurisprudence generally recognizes at least our usufruct of our ancestral lands. The well known case of St. Catherine’s Milling and Lumber Company versus the Queen defines an Indian claim as a personal and usufructuary right depending on the goodwill of the sovereign. We are categorically opposed to this unilateral definition of our rights by the legislators on judicial apparatus of Canadian society. Our opposition is all the stronger because of the excessively restrictive interpretaton which has always been given to our usufructuary rights which have been limited to hunting, fishing and trapping on territory which supposedly belongs to the Crown. Furthermore, with the exception of the trapping of fur-bearing animals, our supposed hunting and fishing rights are not even exclusive. The provincial government authorizes tens of thousands of hunters and fishers to engage in so-called recreational hunting and fishing on our lands.

Likewise, the same government authorizes forest companies to raze our forests, mining companies to dig mine shafts and Hydro-Quebec to flood over vast areas. What is left for us after all these white concerns have used our land and helped themselves first?

We realize that the concept of usufruct is a trap which inevitably results in the private businesses taking over those of

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our land resources which appear to be the most lucrative at a given moment in time: our forests and minerals, our hydrographic system, our wildlife. Mr. Justice Berger went so far as to recognize that native land rights could also include underground resources. We believe that in the present context our sovereignty rights apply to all the resources found in our territories and not only game and fish.

In Canadian written law, aboriginal rights are considered as having been created by the Royal Proclamation of 1763 which also defines their territorial application. Although it may have been perceived as very generous to us, we do not recognize the validity of this unilateral decision made by the head of the colonial government of the time. Because of its unilateral nature and the fact that it was subsequently imposed on the Amerindian population, this declaration strikes us as typical of the colonial society and its power structure which obviously denied the right of peoples to self-government. For the same reasons, we refuse to recognize the partitioning of our territories which took place at the same time as this unilateral declaration and which, in the opinion of some, had the effect of abolishing our aboriginal rights over part of our lands. We do not think that any single person, even the King of England, representing the world’s most powerful nation at the time, had the power to acknowledge or do away with the basic rights of sovereign peoples. This would be an abusive power which cannot be reconciled with the concept which is the very basis of our unwritten laws, holding that all mean as human groups are equal.

The nature of our relationship with the land and its resources underlying our Indian law is basically different from yours. Our principles of law are founded first and foremost on the needs of the community and are aimed at ensuring that everyone has equal access to the land and its resources. This explains our concern to preserve nature and allow for the constant renewal of its resources for the benefit of our fellow human beings and for the welfare of future generations. We have observed taht your law is based on quite the opposite principles. It attempts to guarantee individual or corporate interests exclusive possession of the land and its resources to the detriment of other members of the same group and the same society. It can be seen that such a system leads to the abuse and the waste of renewable resources and also results in a very unequal distribution of collective wealth. We do not want to adopt this model of society, preferring a more communitarian model in which collective rights supersede individual ones.

Furthermore, we cannot accept that the failure to use certain parts of our ancestral lands for a given period be used as an argument to limit the nature of our ownership or the boundaries of our territories.

The fact that we are no longer using lands which have been taken away from us, without our consent, cannot reasonably be held against us. It must be added that the industrial penetration of our land, a short account of which will be provided, has

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of necessity brought about important changes in our traditional livelihood.

Owing to a system of values totally different from yours, we became unconscious victims of transformations which were often brutal and rapid. We had no control over our destiny for a long period of time and we were subject to all kinds of manipulations. We state today our intention to put a stop to this situation and take our fate into our own hands.

Finally, we refuse to accept that the extinction of our land rights be the basic principle for any agreement between the governments of Canadian society and ourselves. In his inquiry, Mr. Justice Berger noted that the recognition of such rights, not their extinction, constituted the very basis of the demands being made by the native groups in the McKenzie Valley. This observation applies to us as well. The Quebec Human Rights Commission made the following remarks in this respect.

The Commission cannot accept the traditional procedure in Canada by which the extinction of native land rights is seen as the necessary preliminary condition to any negotiations. There must be a systematic review of the principles and forms of negotiation with the natives, particularly with reference to territorial rights and the improper assumption that the extinction of such rights is a necessary preliminary condition to any negotiation.

We therefore intend, in the near future, to work for the recognition of our aboriginal rights by Canadian society and not for their abolishment. We think that the best way to respect our rights would be to state them clearly and explicitly in the constitution as has been done for any other law considered a part of our tradition and heritage and thus belonging in the constitution.

Since the arrival of Europeans in our lands, our most fundamental rights have been scorned. The very term “discovery of new lands” is an insult to all aboriginal peoples of America who have known and exploited these lands for thousands of years. The denial of The Other, of his nature and of his rights has always been one of the characteristics of those presumptuous peoples who consider themselves the torch bearers of true civilization and the true faith.

Within such an egocentric viewpoint, our lands were there to conquer, our peoples to civilize, according to your system of values. Despite all your efforts to assimilate us, we victoriously resisted so long as your occupation of our lands was limited to St. Lawrence Valley only. Yet, even then, your strand fisheries and your factories were the advanced post which allowed you to invade our lands ever more deeply in order to finally take them over.

As early as the eighteenth century, the Government of New France had granted the monopolies in the fur trade and in the exploitation of certain resources within our lands, such as the salmon and the seal, «la Traite des Postes du Roi», by ceding signorial rights over large parts of the north shore, and fishing

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concessions to senior government officials as well as wealthy merchants.

Following the conquest, the fur trade monopoly and strand fisheries were extended under the aegis of a few English merhcnats, eventually to be surrendered · into the bands of the Almighty Hudson’s Bay Company at the beginning of the nineteenth century.

Up until then, we had managed to reserve the major part of our lands as well as activities and cultural traditions.

From then on, the large forest product companies have, without regard to the future, or to the preservation of our trapping lines, exploited the greater part of the best forests in our lands. Each year, tens of square miles of forests, teeming with game, are razed without and regard for rational development of our renewable resources. Consequently, each year, many of our trappers see their hunting grounds devastated, and must suffer grave economic hardships.

Since the nineteen-twenties, ever more powerful hydro-electric projects, and ever greater reservoirs are developed on our lands, always without any regard for our rights or our traditional lifestyles. The irreparable damages caused by these hydro-electric developments consequently has deeply modified our way of life and our identity as hunters. Numerous familiar hunting grounds which had been the most productive have since become almost useless. The weal of “hydro Canadians” therefore is really founded on our destitution and our misery.

All the present worked mines and others are on Indian lands. As for the other industries previously mentioned, we have never authorized the establishment of these facilities on our land. To the miners on our own lands, we are looked upon as strangers and pariahs.

Finally, sport hunting and fishing authorized on our lands by the provincial government has allowed the Quebec population to create numerous different systems of appropriation of our resources and game.

The reckoning of the combined effects of all these industrial, agricultural and sports activities of the Canadian society on our land rights, our economy and our culture has yet to be carried out in depth, but already, it is all too obvious that we are the victims of what you proudly call your development. You have crushed us under the steamroller of your technological progress. You have ignored us as a people, as individuals holding rights equal to yours. You have invaded our lands and pillaged our resources, taking no account of our most fundamental rights, which is to live off our lands, if we so wish. We have received nothing from your system of exploitation of the resources of our lands. In return for those resources, you have shown us nothing but neglect and contempt.

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Our economic, social and cultural situation is already so precarious as to risk the loss of the few advantages which in Canada are guaranteed to us by the Indian Act. We are gravely concerned by the political intentions of the present Government of Canada and its methods of proceeding. We do not wish to lose our rights finally through the patriation of the constitution. We want to have recognized our aboriginal rights, that is the rights to our lands, the right to remain Indian, and to develop our own institutions and culture.

We have welcomed your ancestors to our lands with friendship, and in return have had to endure all the vexations we have described; the time has now come for us to claim justice and to insist on the recognition of our fundamental rights as a people distinct from the white man, as Indian peoples, and the indigenous occupants of this land. Basically, our demands are limited to recognition of our territorial rights, as a sovereign people, and our right to take in band our own economic, social and cultural development. With this in mind, our basic position can be summarized as follows.

As independent peoples before the arrival of the Europeans, we wish to be recognized as the founding peoples on an equal basis with the English and the French.

As Indian people, descendants of the first inhabitants, we also demand the right of sovereignty over our own lands.

We want, through control over the exploitation of our lands, to gain an economic base so as to ensure the economic, social and cultural weal of the generations to come.

We want our aboriginal rights enshrined in the constitution.

We want to establish and control our political, social, economic, educational, and cultural institutions.

We want an equal right of veto with the provinces over the institutions, legislation and matters concerning us.

Thus, in accordance with certain principles of international right adopted and recognized by Canada, as a member of the United Nations organization, the Conseil Attikamek-Montagnais demands that the right of Indians be enshrined in the constitution before it is patriated to Canada, and that they not be amended or abrogated without the consent of the Indian nations concerned.

We therefore object that the recognition and the respect of our rights be subject to the whims of the federal government or that of the provinces.

We demand that the following rights be given to the different Indian nations of Canada, and enshrined in the Canadian constitution: the right to self-government, that is the right to determine freely our political status, and to ensure our economic, social and cultural development as defined and provided for: firstly, under Section I of the United Nations Organization charter; secondly, under Section I of the Inter-

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national Convenant on Economic, Social and Cultural Rights; thirdly, under Section I and Section 27 of the International Covenant on Civil and Political Rights; fourthly, under paragraphs 1 and 2 of the Declaration on Access to Independence of Colonial Peoples and Countries; fifthly, under principle CT 8 of the Helsinki Agreement.

We also demand the title to our lands, including their natural resources and wealth and the right to preserve them as defined under Section 17 of the Universal Declaration of the Human Rights.

Secondly, as defined under Section 5(d), paragraph 5 of the Internatinal Convention and the elimination of all forms of racial discrimination.

Thirdly, as defined under Section 11 of the Convention for the Protection and the Integration of Natives and other Tribal or Semi-Tribal Populations in Independent Countries.

Fourthly, as defined under resolution 1803 of the General Assembly of the United Nations Organization with respect to the sovereignty over natural resources.

We demand that our rights be clearly provided for in the constitution, since, up to this time, the federal government had used the jurisdiction granted to it by the British Government under paragraph 91, section 24 of the existing constitution to abolish unilaterally our rights without consultation or compensation by adopting Bill C-9 in 1977. Our rights must no longer be abolished by foreign governments. Rights must be recongnized based on the principles of internatinal law which recognizes our right to self-government and our right to the title of our lands and the resources therein.

It is indeed with this in mind that the fourth Russell tribunal on the rights of American Indians which heard evidence from the 24th to the 30th of November last in Rotterdam, that the abolition of our rights in the James Bay Region by the federal government in 1977 was a direct violation of those principles.

We want to take this opportunity to table for the members of this committee, a copy of the final report of the fourth Russell tribunal in which he recommends to the government, inter alia, to stop these violations in international law, to abrogate those laws which aim at our forced assimilation, and violates our fundamental rights.

Moreover the tribunal requested the Human Rights Commission of the United Nations to consider these flagrant and continuing violations of our fundamental rights.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you Mr. Simon. I understand that you are prepared to hear the comments and answer the questions of the honourable members of this committee. To open the discussion and exchange with our guests this afternoon, I shall first call on the honourable Marcel Asselin, followed by Mr. Manley.

Senator Asselin.

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Senator Asselin: Thank you, Mr. Chairman.

First on behalf of my party, I would wish to congratulate you on the arguments which you have made before this committee today. It is an additional pleasure, since at the time that I was member for Charlevoix-Côte-Nord, part of my riding took in the lands of your tribe at Bersimis, as well a portion of Escoumains. I was always most welcome when I dealt with those groups, and I am most happy to see you here and to hear your representations.

Your plea has been rather humiliating for those whom we call whites, since you certainly did not spare us. And indeed, if we weight the demands that you have made before this committee, the whiteman, as you call him, can find no mercy before you. I wonder however, if we really seem so badly in the past?

However, the fact remains that as a member of Parliament, I was witness to certain discriminatory decisions within my riding with respect to groups of your people. We also remember that the Eskimos had refused you the people of Bersimis and the Escoumains to fish for salmon, and that the provincial police had arrested these people and fined them.

Of course, in all cases, there was enforcement of the existing provincial law on hunting and fishing.

There is no doubt that certain of your demands are well founded. However, I do want to know this. Obviously, you consider yourselves Canadians, and live in Canada. I do not think that in your plea, you expected to gain all the rights which you have claimed, for instance, to form a parallel government, an independent government to the existing federal or provincial governments.

Is it really what you are asking for, Mr. Simon?

Mr. Simon: Briefly, what we have tried to show to the report that we have submitted, that following the consultations with ail the councils we represent, the position of the Indians of Quebec, and indeed the position of all other Indian nations across Canada. Through this process, we want to in the beginning be the first group of people in Canada called the natives, or the Indians. In all the Indian claims, we have always had to discuss, to negotiate, the very fact of our being Indians. We were the first people in Canada, in Quebec, before the French and the English. So we consider it a basic principle, that we should be considered as Indian people, and that we should not be classified or assimiliated as Quebec Indians, or Canadian Indians. We are strictly Indians.

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Senator Asselin: It is because some groups that have appeared have gone as far as saying that if they did not get justice before this committee, and if the federal government did not recognize them in such a way, they would perhaps go as far as to set up their own independent governments, declaring the independence of their groups. Some groups have gone that far, have gone as far as to tell us what I have just repeated.

As I understand it, it is not the intention of the group you represent to say: if you do not give us this, we are going back home and we are declaring our group independent in order to set up a parallel government, a government independent from the one that already exists.

You want to stay within the Canadian relationship? With us?

Mr. Simon: There is, I think, the Quebecois notion whatever the regime. There is the Indian notion. I think it has always been the Indian group’s objective to try to set up a kind of government, to try to be sovereign and to try to decide on a future, to decide that future as an Indian group. I believe that as far as it is possible, this is the direction we wish to follow. I know that the National Indian Brotherhood took steps in order precisely to try to set up an Indian government. It is nevertheless a dream our members have. Mr. Gill might add something.

Mr. Aurélien Gill (Chief of Pointe-Bleue, Attikamek-Montagnais Council): Mr. Chairman, if I may, I would like to come back to what Senator Asselin said a moment ago about our attitudes, that is that we had not put on our velvet gloves to come. I am asking myself right now if Mr. Asselin was seated in the same chair, lived on an Indian reservation and was part of the statistics that we have seen not very long ago, if he was involved with all kinds of problems, I wonder if he would be any kinder than we are when trying to establish communication with other groups.

Senator Asselin: As far as that goes, I am not challenging the strength of your representation, but I have the right, obviously to express some reservation.

Mr. Gill: I think I can say, Mr. Asselin, with all due respect, that if you were sitting in my seat, I wonder if your reaction might not be different. As for an Indian government, to follow up on what I said before, I think that it is obvious that looking at these non-conclusive experiments, you must not forget that in Canada, there is the Canadian government and other provincial governments.

The political system, the administrative system that entails bas never allowed Indian groups to have a part, that is to play a role be it at any level. You may answer that there has been Inuit, there has been Indians who have sat in the House, who became ministers, et cetera. But these people were here to represent ridings where the majority quite often was non-

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Indian. I remember having heard Len Marchand, for instance often repeat; I am not here to represent Indians, I am here to represent my riding.

As far as I know therefore, there has never been any kind of representation to present the Indian version of things to Parliament or to the government.

There has also never been an Indian administration. There is of course, Indian Affairs that reports to a minister, that reports to Parliament, that reports to a number of high officials and less high officials, et cetera. These people have gone as far or the services have gotten as far as the reservations.

Having lived this experience, I think that after living it, after having been the object of many vexations as we say in the report, we have come to the point of saying if the system is going to continue as it has in the past, then we want our own government. Considering the circumstances; I wonder if any other group could act any differently. It is probably for that reason that the National Indian Brotherhood came yesterday and I think—read to you their statement or principles, their statement of sovereignty which I believe is shared by the majority of Indians in Canada.

Senator Asselin: Concerning the inclusion of aboriginal rights here in the document before us, it has often been said that Clause 24 guarantees all the aboriginal rights that are therein protected. I would like to know what your thinking is on this.

Mr. Gill: You know, as I do, Mr. Asselin, that Clause 24, not even in two lines, states that the federal government, that it is a jurisdiction of the federal government to look after the Indians and look after the lands set aside for the Indians. Now, if you are asking us …

Senator Asselin: Excuse me. Clause 24 as written says: the guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that pertain to the native peoples of Canada.

I would like to know your thinking on this clause·. Does this clause cover the rights you mentioned a while ago, or should the members of this committee include other rights more specifically such as those you seek?

Mr. Gill: I think the clause you mentioned is in the Constitution Act, I think we have the wrong document.

Senator Asselin: Obviously, I speak of the proposed resolution.

Mr. Gill: Listen, I really do not know if I can give an opinion about things we only discussed a few times amongst us, in the group. But generally speaking, the exceptions such as the charter of rights do obviously include us. It is a guarantee

[Page 16]

of individual rights. Nevertheless, it often happens when an exception is made, in this case, to make sure that there are no injustices and no prejudice against certain individuals in Canada that guarantees are set forth, that laws are adopted and to make it even stronger, guarantees are added such as those contained in the clause you have mentioned.

Nevertheless our experience has been that these exceptions apply, in general, to Indians. I could give you an example, for instance of what happened. In Canada, we have certain social measures such as unemployment insurance, welfare, social assistance, et cetera. In the case of such measures it often happens that we find almost all the members of the Indian nations covered. What is done in Canada to make sure that there is justice for all, that is law and protective measures apply generally to Indians.

Therefore, quite often, the exceptions apply to us as well. But is this how you wish to protect us, in the sense that you do not wish to see too many injustices, it does matter of course· that there be a few, but we would not want to see too many. That is how we perceive this type of thing.

Senator Asselin: You spoke a while ago of some of the discriminatory measures that exist pursuant to Bill C-9 which I know having discussed it in the Senate. Bill C-9 is the financial settlement you got for James Bay. Are you claiming that it is discriminatory if the government expropriates land in the public interest for the benefit of the whole population and pays in return an appropriate amount of compensation. Is it acting in a discriminatory way in the face of your rights when an expropriation is made in accordance with the law and that, in return you are paid for the value, you are paid obviously the financial equivalent?

Mr. Simon: When we speak of the James Bay settlement, you cannot really speak of the key nation or of the Inuit nation. I know we made representations at the federal level precisely to have upheld the rights of the Attikamek-Montagnais within the framework of the James Bay settlement.

Our approach when speaking of Bill C-9 is that within—Attikamek and Montagnais, we do not want to say that we are looking for a monetary compensation in order to meet the needs of the dominating society or to abide by the policies of the federal government, which means the extinction of our rights.

What we want, through these negotiations, is to give the Indian people those fundamental principles; this is one of our objectives. This is why we came here before your committee to discuss those basic rights, such as the right to self-determination, the recognition of natives and aboriginal rights and the right to any resources. If your committee agrees to this principle, everything can be settled in the future.

[Page 17]

Senator Asselin: Of course, my time is over. Would you· please take my name for the second round because I do not want to witnesses to believe that I do not appreciate the claims that they have made. As a matter of fact, if I have been a little aggressive earlier it was for the sake of argument.

Mr. Mackasey: You have not been aggressive at all.

Senator Asselin: I do not want the witnesses to believe I am opposed to their claims.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Asselin.

Now, I would like to recognize Mr. Manley followed by the honourable Warren Allmand.

[Text]

Mr. Manley: Thank you very much, Mr. Chairman.

I must apologize to the witnesses that I cannot question you in either of your own languages but must depend upon the translator.

I would like to express my appreciation for a very clear brief that made several very important points. I think it is important that this Committee and the Canadian people should understand these points before they try to judge ·the merits and the justice of your specific demands.

First of all you pointed to what you later called our ethno centerism, our blindness to the cultural differences between the dominant european culture which has been imposed on North America, and the indigenous culture of your people and the other peoples that lived on this continent, and you gave examples such as our dependence upon the written law as compared with your oral tradition and the law that is passed down in that way.

You pointed to the difference in our understanding of land ownership where we think in terms of individual rights of ownership and you think in terms of collective rights, and I think this is very true, that we have been very powerfully conditioned by our society to think in these ways and we have difficulty even considering another way.

First of all, I simply want to underline that it is important for us to try and understand that you are painting to a different way. You pointed to the long tradition you have of resisting assimilation, and it seems to me that, given the very powerful forces that would lead to assimilation of you and of your people, you must have some very powerful and very important values that countervail these forces, and I wonder if you could say something about what these values are and how the recognition of your rights will help you to resist assimilation?

[Translation]

Mr. Simon: This is a rather complicated question, but I am going to try and give an answer to Mr. Manly.

A little earlier, I talked about Indian specificity, that is to say an Indian group per se. If you drove into an Indian reserve and tried to understand the Indian environment per se, you

[Page 18]

will find that Indian life is based on the consistent philosophical approach, that is the concept of Indian anteriority on the Quebec territory. This concept of anteriority is very important since the whole cultural issue stems from it. This is a concept which is completely different from the Canadian concept in that our history is completely different from yours. Our evolution is different from yours, as well as our approach to the present situation. In other words, we are more aware of the fact that we are different from the Canadian people. We have our language and our oral tradition, including songs, folklore and so on.

Presently, we try and speak or language as much as possible, contrary to what we did before, when Indians were perhaps ashamed, at least embarrassed, to speak their own language. Presently, this is accepted because other ethnic groups speak their own languages and more and more Canadians are aware that the problems are the same, the Canadian society is evolving in the same way and our history is the same as well. Under the Indian concept, no Indian is going to say that Indian forests and territories belong to the Canadian society, and every Indian will say that these lands belong to us because we were the first to occupy them and we have been living on them since then.

Right now, a lot of developments are taking place and every Indian is wondering what is going to happen. What is happening to our society? What is going to happen to us Indians? Does the Federal Government not have certain responsibilities towards the Indians? This is the problem right now and this is why we are moving towards the kind of Indian unity, the kind of Indian government, with components, structures and institutions which will fit or values and our traditions. We do not want policies or directions which will be imposed to us by another nation. I do not know if that answers your question.

[Text]

Mr. Manley: I think that helps.

You also pointed to the different concepts of aboriginal rights. You pointed out certain legal decisions which have seen aboriginal rights in terms of usufructary rights, and a very limited definition of those rights.

You want to see a larger definition of aboriginal rights. If I understood you correctly, you are not interested in some kind of settlement which would lead to the extinguishment of those rights, but rather to some recognition of those rights which would provide a permanent base.

[Page 19]

Now, can you explain the implication of that for the larger society, the difference between extinguishment and what you want?

[Translation]

Mr. Simon: This is the very basis of Indian claims. We want to settle this question of unsufructuary rights because, in the Canadian society, when a legislation is passed to clarify a misunderstanding, this Canadian society, the Quebec society or other societies assess this legislation by comparing the situation at that time and the new situation in the twentieth century.

We had usufructuary rights as far as hunting and fishing are concerned and, without going into technical details, the Royal Proclammation of 1763 granted specific lands to the Indian people in Quebec. Yet, this concept has never been respected. Other things happened after that. In ·order to extricate ourselves from this situation, we need the recognition of our rights because the present situation is not the same as in 1763, when the concept of usufructuary rights was recognized. Other modern concepts intervene here. Therefore, we must play the same game as the government, that is to try and adjust the legislation to this notion of self-determination which implies the recognition of our rights, including our rights on natural resources.

[Text]

Mr. Manley: Would you say that, even given our own narrow traditional definition of usufructary rights, that we have not even delivered justice to you on the basis of that definition? Could you also say something about the federal responsibility vis-à-vis the provinces in this regard?

[Translation]

Mr. Gill: I have not understood your question, Mr. Chair. man. Would you mind repeating it?

[Text]

Mr. Manley: The basic question was: do you feel that, even given our European/North American understanding of aboriginal rights and our understanding of them in a limited way regarding usufructary rights, that even with that understanding we have not dealt fairly even according to our own understanding?

[Translation]

Mr. Gill: Mr. Chairman, unilateral decisions have been made concerning previous agreements of the Royal Proclamation, namely the Quebec Act. So, even though our rights wre officially recognized by your forefathers, their commitments were never fulfilled. For example, I know there are many definitions of usufructuary rights, but all those definitions look alike and when you talk about ownership and usufructuary rights, it includes all the rights and all the resources of the land, and you can use these resources as you see fit, or under the terms of an act. By usufructuary rights, we mean the right to hunt, to fish and to trap. This is obviously a limited

[Page 20]

definition. The one you give to usufructuary rights is not the same.

[Text]

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Manley. L’honorable Warren Allmand.

[Translation]

The Joint Chairman (Mr. Joyal): The honourable Warren Allmand.

Mr. Allmand: Thank you, Mr. Chairman.

Mr. Simon, since you represent the first nations of Quebec and eastern Canada before this committee, I would like to welcome you and congratulate you for your clear and comprehensive brief.

Recently, I have heard about a new association of Indian nations in Quebec City, which is called, I think, The Association of Indian Nations of Quebec. Is your nation a member of this association?

Mr. Simon: Yes.

Mr. Allmand: Could you tell us which other nations are members of this association? Is your association the previous Federation of Quebec Indians?

Mr. Simon: No, it is not. As far as the membership of this new association is concerned, I have to tell you that there are certain conflicts between nations and we have tried to find common interests and action plans concerning the Indian issue. The nations which belong to the new association are the Attikamak-Montagnais, the Algonquins, the Cree, the Abénaquis and the Mesquapis.

Mr. Allmand: On page 13 of your brief, item four, you say: We want our aboriginal rights to be enshrined in the constitution.

In order to achieve that, do you think it is necessary to have a detailed definition or just a general statement recognizing your aboriginal rights and your right to negotiate the meaning of those rights?

Some people, not only in this committee, but in the country, have said that it is not possible to enshrine the concept of aboriginal rights without a very comprehensive definition. I for one am opposed to this. What do you think of it?

Mr. Simon: Our brief deals with this question of aboriginal rights and, to our opinion, it means the right of Indians as defined in some part of the Royal Proclamation of 1763, where certain lands were given to us for our personal use.

[Page 21]

I talked earlier about this question of evolution, and we are in 1980 and I think the concept of aboriginal rights could be defined as to mean masters in our own homes, owners of the land. This is what we would want, the right to use the. resources within a territory.

Does that answer your question?

Mr. Allmand: For example, if the Committee decided to amend this resolution that is before the Committee by including a declaration confirming or recognizing Canadian Inuit and Indian aboriginal rights, would you accept it?

Mr. Gill: I think there are lots of discussions and speculations surrounding aboriginal rights, and we are accused of not having a concerted view amongst us Indian people. We are accused of not having succeeded in agreeing on certain matters, legal points, such as the Indian woman status. Perhaps that will come soon.

We are also accused of not being able to achieve unanimity on certain basic or secondary issues.

But I think that the aboriginal rights as such, and I do not wish to speak in the name of other Indian nations, enjoy unanimity. We would all want the aboriginal rights to be included in the constitution. But I do not think we could venture in defining those aboriginal rights before enshrining them in the constitution. I suppose that afterwards, everybody could work together in order to find an acceptable definition so that we would be able to co-exist.

Mr. Allmand: Thank you. Many other Indian and Inuit groups have recommended before this Committee the enshrinement of the Royal Proclamation of 1763. Now, as you have said, that proclamation was unilateral and perhaps it has poorly taken into account a number of your rights. Are you in agreement with other Indian and Inuit groups as to include and enshrine the Royal Proclamation as well as other statutes so that it be included in the proposed resolution, therefore in the constitution.

Mr. Gill: Mr. Chairman, as mentioned in our brief, we obviously have to use existing documents. The Royal Proclamation is one of them.

Mr. Allmand: Unfortunately, it was forgotten in this proposed resolution. This is the reason why other groups have recommended that it be included because for one reason or another it was completely forgotten this time.

Mr. Gill: I take it that the Canadian constitution is embodied in one document. But in Canada there are other statutes that have been passed and that are part of a tradition. Therefore I suppose that we would want to include other existing documents in the country.

[Page 22]

If we want to be consistent with what we have said, the Royal Proclamation of 1763, as well as other documents, should be referred to as guides when we study, define or grant certain rights.

Mr. Allmand: Clause 52 of the proposed resolution reads as follows:

The constitution of Canada includes:

(a) The Canada Act;
(b) The Acts and orders referred to in Schedule I.

Unfortunately, in Schedule I, there is a list of many acts and statutes but the Royal Proclamation is not amongst them. Even if that proclamation was unilateral, would you like to see it there?

Mr. Gill: This is precisely what I was saying a moment ago. Once it is admitted that Canada has been built by people who were here and who were then joined by others, once it is recognized that legislation was passed until 1980, we have to take that legislation as what has shaped our country. This is the reason why I think those documents should be included, as well as the others.

Mr. Allmand: One last question. When you are saying that you have the right to your own government, should you not say that in a way you now have your own government. You have the band council, you have your own association representing you such as today, there is the new Association des Indiens du Québec and there is the Brotherhood. In a way, one could say that you have your own government even though it is not fully recognized.

Mr. Gill: I think you are right on that point. There has always been some form of government that has been modified as circumstances changed. There has always been Indian government in this country.

Mr. Allmand: Thank you, Mr. Chairman.

Mr. Gill: However, Mr. Allmand, it has never been recognized by the majority.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Allmand.

Mrs. Céline Hervieux-Payette has the floor.

Mrs. Hervieux-Payette.

Mrs. Hervieux-Payette: Thank you, Mr. Chairman. I think the Chairman read my mind. when earlier he brought up Clause 15 of the Charter, concerning discrimination. I do not want to seem as though I repeat myself, but I will take this opportunity I have to meet some Montagnais from Quebec to extend my congratulations to their legal advisor who recognized the principle of equality in their council.

[Page 23]

I was wondering if our witnesses will invite their national or provincial associations to support Canadian parliamentarians in their representations to the Canadian Government so that Section 12(1) (b) of the Indian Act be suspended pursuant to Section 4(2) because as we know, the Minister has granted the suspension with the results of preserving Indian women’s rights rather than granting them some when they marry a white man. In other words, the consequence would be to re-establish equality for Indian women. In your brief, you refer to equality and if one is to speak of equality between Indian and non-Indian, one could easily extend the concept to equality between Indian men and Indian women. I would like to ask Mr. Simon if as a leader, he invites the band to appeal Section 12(1)(b).

Mr. Simon: There have been discussions of Section 12(l)(b) within our association, within our council.

I know of the discrimination against Indian women. In fact, when they marry white men, they lose their Indian status. That article is discriminatory in the sense that it is an act that has been created by the Government of Canada. It is not an Indian act.

What we are seeking in all the representations that we have made and by appearing here today, is to obtain a decision power so that we could manage Indian nations the way they want themselves to be managed and this is something that could be discussed.

As I was saying earlier, the bands are in favour of Indian women not losing their status, but since they do through federal legislation, I think that it is where the blockage exists at this time. Associations and band councils cannot legislate in that respect. At least not now.

Mrs. Hervieux-Payette: Since the Minister is now agreeable to amend the act “on demand”, I hope that the Attikamek and Montagnais Council will be encouraged. I think by doing so, the Minister is respecting your council’s wish, to the effect of not intervening in its internal affairs but only on demand. That act which has not been passed by you could be amended the way you would like to see it amended in order to re-establish equality and I hope that when needed, you will be ready to act in order to request such an amendment. I think it is highly important that we be able to count on representations by Quebec Indian bands because, and I know the situation for having met Indian women in Quebec, Indian women in Quebec are very eager to see this issue settled. For us, the status of women in Canada is similar to the Indian situation because of unemployment rates and inequality. In fact, there is a very high degree of similarity because even though the rights of women exist we have to recognize that women are not treated

[Page 24]

equally and I would like to be able to count on your support when we present a further request after the holiday season.

The Joint Chairman (Mr. Joyal): Mr. Gill.

Mr. Gill: Mrs. Hervieux-Payette, as Mr. Simon said it earlier, I think many of our groups are very conscious of that discrimination. However, it is not the only way the Indian Act discriminates.

One thing for sure is that when one looks at section 12 or Section 4 which are evoked by certain band councils to make other sections operative, we are often, as Indian associations or as band councils, taken by surprise. I wanted to mention that. There are conflictual situations of problems created by legislation and with a minimum amount of publicity or when public opinion is polarized on an issue, the problem takes proportion and falls back on us without our having the means, the techniques or the administrative support to solve it. Therefore, problems of that nature will remain, and there are others.

However, as long as we will not control certain institutions, as long as we will not be able to control who is defined as status Indians and non-status Indians, such problems will occur and there will be more. There is the whole question of adoption on the reserves. There are many many problems to solve and we do not have the support or the means to do so others do. We should have the expertise and the means to sensitize all or inform people that we represent. This is a continuous problem.

It is possible that we would be accused as Indians to be discriminatory. The Indian Act, the way it is applied, discriminates. I think that many Indian leaders are conscious of that, but it is the situation that has been created beyond our control and now, to correct it, we would need the means and not only to be expected to extinguish the fire that others have started. We are not as well equipped as firemen.

The Joint Chairman (Mr. Joyal): Thank you Mrs. Hervieux-Payette.

Senator Asselin would like to conclude an earlier intervention that he made this afternoon.

Senator Asselin, do you have anything to add?

Senator Asselin: I would have a very short question, Mr. Chairman …

[Page 25]

The Joint Chairman (Mr. Joyal): Certainly.

Senator Asselin: I would like a few clarifications from our witnesses.

You are not the only group appearing before the Committee. Other groups have asked us to enshrine in this document aboriginal rights and when they were asked to define those rights, they had difficulty doing so.

Global rights cannot be included in the constitution. Did you include in aboriginal rights the right to self-determination with ail the consequences it implies? Is that your definition of the rights that you would like included?

We will study this resolution clause by clause in the very near future and when we read Clause 24 concerning rights and liberties of native peoples of Canada, if we wish to define further your rights, we will have to be able to count on a definition from the people concerned. We are in a difficult position. You are asking us to enshrine aboriginal rights in this document, but what are they? This is the difficulty that we will have to solve.

Could you help us by answering this question?

Mr. Simon: Senator Asselin, I think it is a question quite complex.

Senator Asselin: I know.

Mr. Simon: When we speak of the Indians, of the Indian nations in Quebec or elsewhere in Canada, we are referred to as the first Canadians. As first Canadians, we were sovereign; masters at home, masters of everything related to our people that is resources, et cetera.

It is therefore in that prospective that we talk about aboriginal rights. There are rights of the first occupants which are related to them but in the contemporary context we must also take into account the evolution which has taken place.

Given the fact that the Indians have suffered from a kind of human spoilation from the various governments, a poor relation which still goes on, and given the fact that certain rights are guaranteed in international treaties, the Indians are attempting to include contemporary elements such as the right to self-determination, that is to say the right of the first people, the right to be an Indian, the right to be considered as a nation within the Canadian Society instead of being treated as inferior when we try to speak as equals; but in fact it is not true because there is no equality as far as the Indian people is concerned.

[Page 26]

This is my approach as an Indian; we are the first people, the first occupants and therefore we have rights; and we have also rights to the resources which should be related to the right to self-determination so that we could give the Indian nation the necessary instruments to assert itself as a nation.

I shall now give the floow to our legal adviser.

The Joint Chairman (Mr. Joyal): Mrs. Dupuis.

Mrs. Renée Dupuis (Legal Counsel, Attikamek-Montagnais Council): Mr. Asselin, I would briefly like to come back on a point which you have raised, that is the question of Bill C-9.

I would simply remind you that Bill C-9 has distinguished the rights of the Indians which did not sign the James Bay Treaty and the fact that people are expropriated without any consultation or compensation is still considered as discriminatory.

Senator Asselin: You will agree with me that it is an internal problem.

Mrs. Dupuis: I beg your pardon?

Senator Asselin: It is an internal problem within your group.

Mrs. Dupuis: It was really the position of the then federal government except that there were Indian nations occupying this territory on an equal footing, without any hierarchy.

At that time, both governments in Quebec and in Ottawa decided to negotiate with only a few of them and the federal government has agreed to extinguish the rights of the other Indians which were living in this area but without consulting them and without giving them compensation, which remains contrary to the Canadian Bill or Rights. This is why we maintain that this act was discriminating against the Attikamek, the Montagnais and the Algonquins.

Senator Asselin: There has been members on both sides of the House as well as senators who have raised this point when the bill was discussed in the House and in the Senate.

Mrs. Dupuis: Yes. This is why we are back here.

You have not succeeded the first time but we are back today because we still hope that you are going to change and improve the drafting of such sections as 24 since the policy of the federal government as it is clearly expressed in all these documents, is to extinguish the rights of the Indians.

We have heard here that the present charter does not deny the existing rights and liberties and in particular the rights and liberties of the native people, but the position of the government and of its predecessor, for that matter, is that the Indians do not have rights now in Canada; this is what this act says.

If those rights are not clearly enshrined we are back to square one, even if you add the Royal Proclamation in Schedule 1. It is quite conceivable that you have difficulty unders-

[Page 27]

tanding the concept of aboriginal rights because it is an involved concept which cannot be easily settled or defined.

Those are concepts about which René Simon spoke earlier and I think everybody is able to understand the concept of self-determination, property of the lands and property of the natural resources which are on these lands. I would imagine that Canada is able to understand these expressions since our country has signed international treaties in which those rights are recognized.

When you ask which rights we want to see enshrined, I do not think we can express them in a more clear way. It would be better to have nothing than Section 24 since the position of Canada is that the Indians have no rights and the proof of it is that this drafting reminds me of all the other documents. When you deal With a government, you always come across this kind of formulation where it is said: nothing in the present convention, contract or treaty treaty—whatever you call it—shall in any way be construed as the recognition by the Government of Canada, Quebec, Ontario or Alberta, according to the province which is involved, of any right which might belong to the Indians.

We cannot accept it because it is only too reminiscent of the usual phraseology when we are dealing with the government. It would be better to have nothing at all.

Senator Asselin: You have given us a fairly complete answer and I wish to commend you for that.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Asselin. [Text] I see that the honourable Senator Bosa would have a short Question to conclude. Senator Bosa.

My question is directed to Mr. Simon. On page 3 of the brief you enumerate some of the attempts that have been made in the past to radically change your culture and that that transformation is being resisted to the displeasure of the missionaries, administration, and the business people.

On page 4 you make reference to multiculturalism. Do you feel more comfortable now that the Prime Minister has announced a policy of multiculturalism on October 8, 1971, during which he defined Canadian society as a society that has two languages or communicates in two official languages but it does not have an official culture and that no culture is more important than .any other culture, thus creating a psychological climate which is more receptive to the kind of diversity that we have.

[Page 28]

Do you feel more comfortable with that policy now, do you think that Canadian society is evolving and that it is maturing and it becomes more receptive to diversity?

[Translation]

The Joint Chairman (Mr. Joyal): Mr. Simon.

Mr. Simon: Thank you, Mr. Chairman.

Yes. I think that the Canadian society has evolved in the sense that it recognizes the multiplicity of cultures.

We look upon it as an improvement over earlier years when the Indian administration was under the jurisdiction of the Department of Immigration. The fact that the Indians are considered as a nation distinct from the other nations which exist in Canada is a step forward. I see it as a step in the right direction provided that the Indians are accepted as the first people with their own identity, their own culture and their own language. In that sense there has been an evolution. I for one think that it is very positive.

[Text]

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Bosa.

[Translation]

Since there are no more names on my list, on behalf of the· hon. members of this Committee, it is my privilege to heartily thank you for your presentation and your participation in the debate.

Before we leave, I would like to reming you that there are two monuments in front of the Quebec National Assembly: one which represents the Niggog fisherman and the other which represents the Abénaquis family; these two monuments stand at the very base of the Parliament Building in Quebec and beyond that, that is to say in front of the building, you find the statues of the various explorers, trapper, missionaries and political men which have taken part in the foundation of the country and which have supported the institutions of the Province of Quebec.

I think that they are there to remind us that the Native people in Canada and in Quebec have taken part in the building of the country in which we live, and it is quite appropriate.

Unfortunately we do not have such well identified monuments on Parliament Hill in Ottawa which would rmind all the Canadians that if this country exists it is first and foremost thanks to the Native people who lived there first and were the first to take advantage of its natural resources; and on page 4 of your brief you say: the culture of the American Indians is the cornerstone of the Canadian culture, and I think you owed it to yourself to emphasize this point and it should be instrumental to redefining all political institutions of the country.

I sincerely thank you on behalf of the hon. members of this Committee.

Mr. Simon: Mr. Chairman, I would like to add something before we leave.

I would like to brief to be appended to the proceedings of the Committee.

[Page 29]

The Joint Chairman (Mr. Joyal): Certainly. It will be printed in appendix to the proceedings of this meeting.

Mr. Simon: And by the same token I wish to thank the members of the Committee who have given us this opportunity to present our case.

The Joint Chairman (Mr. Joyal): You are welcome.

I will now invite the representatives of the Union nationale to come to the table.

You are the interim leader of the Union nationale, Mr. Le Moignan, and on behalf of the hon. members of this Committee I take pleasure in welcoming you as well as Mr. Bertrand Goulet, member for Bellechasse, and Mr. Claude Gélinas who are with you today.

I understand that you are familiar with the procedure of the parliamentary committees. We usually invite our witnesses to present their views and then to discuss with the hon. members of the Committee.

Mr. Le Moignan.

Mr. Michel Le Moignan (Interim Leader of the Union nationale and member for Gaspé at the Quebec National Assembly): Mr. Chairman, I thank you very much for your warm welcome and it is a great pleasure for us to have been invited, especially at this time of year; we have not completely lost hope but because of a busy schedule in Quebec as well as in Ottawa we thought that it might be impossible to appear before you.

We therefore wish to thank you, particularly those who, directly or indirectly, have exerted a certain pressure or have put a plug for our group.

Indeed, it is only natural and even essential that you hear at least one political party which is represented at the Quebec National Assembly before you pepare your report of the draft resolution which is part of your terms of reference. I am glad that this political party be the Union nationale.

During the 45 last years, our party has gone through ups and downs, being in power and then in the opposition. However, since our first appearance on the Quebec political scene, we have derived our power from our autonomist and federalist roots which quite faithfully reflect this double political reality; it characterizes the people of Quebec not only today but it has been so since the very beginning of the Canadian federation in 1867.

During the referendum which was held in Quebec on May 20 last, the Union nationale has fought for the “no”, for those of you who might not know it. The Quebec government was asking us to choose between sovereignty association and federalism and to this question we have taken a clear position; we have opted for the maintenance of the federal framework.

[Page 30]

Today our choice would remain identical if we had to answer a similar question because, as we said on August 14 in a committee of the Quebec National Assembly, we believe that federalism is the best mode of government to maintain the unity of Canada as well as to allow every one of its components to develop and to grow according to its own features.

We are not blindly committed to federalism, no more than we were at the time of Duplessis or Johnson. Its raison d’être does not only come from the heart. It is also based on the realistic evaluation of the possibilities offered to Quebec in a context of global negotiation of the Canadian constitution.

The federal framework which we favour is based on various principles, the foundation of which is a combination of two notions which far from being antagonistic are in fact complementary, that is to say, on the one band, the Canadian federalism with its demands and, on the other band, the Quebec nationalism with its characteristics.

Within our political party, nationalism is perceived as a positive force which is apt to catalyse the dynamism and the vitality of all the social and economic groups within the Quebec community.

Far from minimizing Canada, we have always wanted the Quebec assertion to become a factor of enrichment for all the Canadians inside and outside of our borders. We do not believe that the normal and healthy nationalism of the Quebec people would necessarily lead to the nation state where the Parti Québécois government wants to lead us.

Evidence has been given that we want to share with others the ownership of a great country. I will now explain the fundamental principles of our constitutional philosophy.

First of all, Canada as a federal country is neither geographically nor historically nor culturally a homogeneous country. It encompasses several regions which, although they greatly differ from one another by their situation, their size, their historial evolution, their natural resources and their economic vocation, are complementary.

It also comprises two large linguistic and cultural communities which in turn have been enriched by the arrival of various ethnic groups. In order to better recognize these two Canadian realities and adopt them to the present needs, it has become urgent to give back strength and vigor to the Canadian federation through a new constitution which would be designed and adopted in this very country, Canada.

Secondly, this new constitution should recognize the equal status of two levels of governments, the federal government and the provincial governments, each being sovereign in its own area of jurisdiction.

Thirdly, this new constitution must clearly divide the jurisdiction of each level of government so as to significantly reduce overlappings and it should also recognize that the

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powers not explicitly attributed to the federal government be given to the provincial government.

Fourthly, this new constitution should explicitly recognize that Canada is made up of two nations, one where English is spoken and the other where French is spoken, the latter having its focus and gravity centre in Quebec although it spreads all over Canada.

Fifthly, this new constitution should also recognize within the Canadian federation the distinctive characteristics of Quebec as the heart of one of these two founding nations of Canada and the only province with a Francophone majority.

Let me say that these principles are widely shared by all the political parties working in Quebec. They might express it in a different way, but on the essential, on the main idea, there is almost unanimity.

It is quite normal that these guiding principles would be reflected in the division of powers between the two levels of government as well as in the composition and the mandate of the federal institutions. And it is because of these general unity that the Union nationale has put the emphasis, particularly since the time of Daniel Johnson, on the global nature of the constitutional revision and it is also the main reason for which we have always wanted to avoid piecemeal constitutional negotiations, power by power, institution by institution.

I have given you this general overview so that you would better understand why we are opposed to the proposed resolution which you will soon start studying clause by clause.

At the beginning of November, 1980, the Prime Minister of Quebec, Mr. René Lévesque, asked all the members of the National Assembly to vote on the following motion: I think it would be useful to read it together:

The National Assembly of Quebec formerly opposes the approach taken by the federal government, in a unilateral way and despite the opposition of the majority of the provinces, in order to have the constitution of Canada amended by the British Parliament instead of proceeding here to its revision through negotiations. In view of the fact that since 1867 this constitution has defined the rights of Quebec as a founding member state of the Canadian federation, the National Assembly urges the members of the Parliament of Canada and of the Parliament of the United Kingdom to not carry out this unilateral approach which is contrary to the very nature of the federal system and to the well-established rule which requires the consent of the provinces.

Mr. Chairman, we were ready to adopt this motion without amendment but the members have been bogged down in a long debate where the referendum of May 20 has unfortunately interfered with the meaning and the scope of the approach taken by the federal government.

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Despite this I am sure that you have all understood that all the political parties which are recognized in the National Assembly are unanimously opposed to the request from the federal government.

During this debate, I have had the opportunity to fully explain the reasons which underlie our position. I think that all the federal members of Parliament as well as all the senators have received a copy of the speech which I have delivered at that time. I will then limit myself to the essentials.

As far as patriation is concerned, for 53 years the major conflict has not been over the fact that the British North America Act would be brought back to Canada, but over the way to do it as well as over the amending formula which necessarily goes with it.

We are convinced that the whole question of patriation is presently used by the federal government to justify before the Canadian public opinion its unilateral action as well as the immediate amendments of the Canadian constitution by a foreign Parliament, that is to say Parliament of the United Kingdom, on two major points where both levels of government do not presently agree, that is, first, the introduction of a referendum as an amending formula and secondly, the enshrinement of the charter of rights and liberties.

I do concede that the notion of patriation raised very legitimate feelings of pride and patriotism in all the Canadians, but it is not good enough to use it in order to convince the population that this simple action is going to confirm a national independence which has or would have been acquired since 1931 or that it is going to open up the constitutional deadlock in which we presently are because this would be an exaggeration worthy of the best melodrama.

Patriation as such is nothing but a symbolic meaning. What is important, what is really going to change something is what goes with patriation, that is to say the referendum as an amending formula and the enshrinement of a charter of rights and liberties. If these modifications would at least be the result of a consensus between the two levels of government, there would be less to be criticized. But the fact that these modifications are immediately and unilaterally imposed by only one level of government is unfair, arbitrary and merely unacceptable.

The federal government assumes the ownership of the constitution as a matter of fact and arbitrarily it poses its conception of federalism and its vision of the future. The latter is bluntly clear, no more yearning for an equal constitutional status of our two levels of government! The fact that the Pepin-Robarts Commission has proclaimed this principle without any hesitation as the cornerstone of the Canadian federalism does not seem to matter much. Ottawa has spoken and, in the interest of the global (sic) community, it has taken upon itself the title of “legal seniority” government.

No one else but one of the co-chairman of the Commission on Canadian Unity, Mr. Jean-Luc Pepin, today Minister of Transport in the Trudeau government, described in this way

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the act of his government. This is an excellent illustration of the real and concrete meaning of the federal gesture.

Beyond the unilateral nature of Ottawa’s action, the resolution shows a very good example of this new theory of federalism which the government tried to impose on us by force. I am referring, of course, to the use of the referendum as a permanent means of constitutional change. This new mechanism suppresses any veto which would be granted to Quebec or to any other province because, should the veto right happen to be exercised, the federal government could always, at its own discretion and following rules which the Canadian Parliament would have been allowed to set up in a statutory law, call for a referendum to settle the matter. Contrary to what happened in Quebec, last May, this referendum would have an enforcible character.

Senator Arthur Tremblay was right when he said before his peers last October that this formula institutes, on a permanent basis, the unilateral action of the Parliament over the heads of the provincial legislators.

In a British type Parliamentary system, it is the Parliament that represents the ultimate expression of the peoples’ sovereignty.

In a country like Canada where this sovereignty is shared between two levels of government, I have difficulty lo understand why all of a sudden an institution is being introduced, without any consultation, without any preliminary study and mainly without the agreement of the provincial governments that will in fact become an amendment formula in order to change, among other things, the future sharing of this sovereignty between the two government levels.

Such an action seems to me contrary to our constitutional traditions. It was the honourable Guy Favreau, then Minister of Justice of Canada, who published in 1965 a white book entitled “Changes to the Constitution of Canada” in which he described four general principles. Let me quote one of those principles:

… the Parliament of Canada does not proceed with a constitutional change which has a direct bearing on the sharing of powers in the federation without preliminary consultation and agreement of the provinces. This principle bas not appeared as early as the others, but, as of 1907 and mainly 1930, it has been more and more supported and accepted. However, it has not been easy to spell out the nature and the extent of the provincial role in the process of constitutional change.

We submit that the introduction of the referendum as a permanent mechanism for a constitutional revision directly concerns the evolution of the development of the federal relationships. And on top of that, the fact that a majority of provinces representing a majority of the Canadian population would be categorically opposed to it, is a sufficient reason for which we would ask you to refer this proposition back to the negotiation table for a more careful study and consultation.

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I said earlier that the real function of this whole question of patriation is only to make the unilateral action of the federal government more palatable to the Canadian public. But that is not all! Patriation also serves as a screen which bides a totally hateful operation, which is to have a foreign Parliament do what we dare not even do at home because of the strong opposition of the provinces.

It is a highly despicable act on the part of an independent country:

Indeed is it the responsibility of a foreign Parliament, the British Parliament, to grant a Canadian charter of rights and liberties? My answer to this question is unequivocal: no. If a charter of rights and liberties is to be enshrined in the constitution, it has to be done here in Canada and by the Canadians with the consent of the provincial governments.

Whether you like it or not, a charter of rights and liberties which purports to be the least complete must deal with projects of provincial jurisdiction, and the present version is no exception. Fundamental civic rights and rights of law, is it realistic, fair and reasonable that, even before we have given our opinion on a new division of powers, that the Canadian constitution alters the present sovereignty of the provinces in these fields without them having given their absolute consent? I believe that by asking the question, you answer it.

I also deplore the fact that the proposed resolution contains obvious discrimination in the procedure for the implementation of this charter. This is a patent example of double standards.

The changes desired by the provinces, and especially Quebec, will have to be agreed to unanimously for the coming two years, and following that, they will be subjected to one of the amending formulas put forth in the federal proposed resolution. However, the federal government does not have to be subjected to this double constraint on the controversial question of the charter of rights and freedoms; this is immediately imposed to the provinces through this sly recourse to the British Parliament.

Notwithstanding the preceding objections, the position of the Union nationale party relating to this Charter of Rights and Freedoms is:

We believe that the federal government is prematurely in a hurry. Traditionally we have always given priority to the conclusion of an agreement between the two levels of government on the division of powers, before discussing the entrenchment of a charter of rights in the constitution. Moreover, since there is a direct link between the inclusion of such a charter in the constitution and the Supreme Court reform—the authority responsible for its implementation—we request that a serious examination be first made of the possibility of establishing a true constitutional tribunal.

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Now, if you will allow me, I will make a few observations in Shakespeare’s language, even if I inadvertently mistreat it sometimes.

[Text]

Very briefly, our major objections to the patriation package deal that you will have to study in detail, if not in depth, in the coming weeks can be summarized as follows: One, we object to the unilateral nature of the proposal, because we believe that federalism as a form of government in a country like Canada must be based on the recognition that both orders of government are of equal constitutional status and we reject the philosophy underlying the federal resolution which considers the federal government as having a senior legal authority.

Secondly, we object to the introduction of the referendum as a permanent mechanism to amend the Canadian constitution. The proposed formula renders useless any power of veto by the provinces, because Ottawa will always be able to decree a national referendum at its own initiative and following the rules adopted by the Canadian Parliament in a statutory law. In-other words, the provinces have absolutely no word in the matter. In addition, since the use of this new mechanism will directly affect the future evolution of federal-provincial relationships, we strongly believe that prior consultation and agreement with the provinces are necessary if we wish to respect our constitutional traditions in this matter.

Thirdly, we consider it to be an act of cowardice on the part of Canada to ask another sovereign state to give us a Canadian charter of rights and liberties, becuase we are unable to agree on the subject here at home. We also object to the fact that the proposed charter will come into effect immediately without the consent of the provincial governments.

In short, we believe the federal government is using the highly emotional question of “patriation” as a scapegoat to mask more effectively the unilateral character of its proposals and the unacceptable use of the British parliament to do what it has been able to achieve successfully at home. [Translation] In conclusion, I would feel like making a recommendation that maybe could bring the interested parties closer together, as long as they would be ready to show their goodwill and even their openmindedness.

In your report, I would ask you to follow suit to the wishes expressed by the Quebec National Assembly, that is to set aside the present proposals of the federal government and to assure the renewal of the Canadian constitution through negotiations. If this Joint Committee were to recommend an immediate return to the negotiation table, I am convinced that this could have a very positive effect. Patriation is impossible without an amending formula, and there can be no amending formula without provincial consent.

As we have said many times, when it comes to the amending formula, the Union Nationale Party favours the Vancouver

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formula or any other formula that would be very close to it; we feel that this formula has the advantage of taking into account the various necessities of Canadian federalism, as well as of the particular characteristics of Quebec nationalism.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much for your presentation.

To open this period of discussion with our guests, I would like to invite the honourable Roch La Salle, followed by Mr. Nystrom.

Mr. La Salle: Mr. Chairman, on behalf of all my colleagues from Quebec, I would like to thank our friends from the Union Nationale Party for the honesty of their presentation today and invite all members of the committee, and especially those from outside Quebec, to understand fully the scope of these recommendations, as well as the feelings shared by a great majority of Quebeckers.

Today, we welcome a political party with an interesting history, and not long ago, we have had the leader of the other political party, from just across the street; I therefore hope that the extension granted this committee will allow him to come here, as Mr. Le Moignan and his colleagues have done today, in order to give us also his objections to the present formula and to the proposed resolution as a whole.

We know the position of the Government of Quebec, and I feel we must see this unanimity that exists in the National Assembly for the patriation of the constitution. I think our friends from the Union Nationale have explained clearly that they are in favour of patriation. However, what is essential is the need to go back to the provinces for them to accept any amendment which should be made in Canada by Canadians.

I must pay my respects to our friends of the Union Nationale who will today, I hope, enlighten many members of this committee and will also get their colleagues from Quebec to better understand what is happening in Quebec. I hope they will give them courage.

The great majority of Quebeckers want to play a role in these changes. Mr. Le Moignan has proven it today, by the observations he has made. That is what is happening in Quebec. The National Assembly and the Government of Quebec are unanimous on that subject As Mr. Le Moignan was saying earlier, there has been no unanimity on the resolution, but it is obvious that the three party leaders in Quebec are all opposed to the way the federal government want to act, and are all unanimous on one goal which is to have in Canada the Constitution of Canada, · amended by Canadians in Canada.

Mr. Chairman, if you will allow me, I would also like to invite the Postmaster General to sit here. For example, he calls nitwits all those who do not think the same way as the Liberals on the proposed resolution; maybe we could . be much more honest and intelligent if we listened to Mr. Le Moignan and if we respected also the three party leaders who ask the rest of

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the country to understand fully the position of Quebec on a constitutional framework which has been so well explained by Mr. Le Moignan today, as well as by Mr. Ryan.

Mr. Le Moignan, you have raised one point and I think it is important to repeat it. Of course, you would want the constitution patriated, you wish for important changes which would reflect the Canadian realities, the particular characteristics of the Canada we know as expressed very well by the Pepin-Robarts Report. Unless I am mistaken, before we send a request to London, you insist that this committee make an explicit recommendation to the House which would ask it to try to bring the provinces to a consensus, exclusively on patriation, coupled with an amending formula so that at last, Canadians could start working on these changes.

Mr. Le Moignan: As a brief response to your question, Mr. La Salle, I make this recommendation in view of the fact that from September 8 to 12, we have seen the ten provinces, in the last hours, come to a consensus on at least five of the 12 proposals. I feel that if we should start discussing where we left the matter, there is certainly—as we have said, there are two levels of government, each being equal in its own jurisdiction. Given this, the constitution cannot be amended unless all the provinces agree to the changes. If we go back to the negotiation table and if we consider the constitution as a whole, we will be able to agree on an amending formula. That is what is important. As soon as we can agree on an amending formula, we will be able to bring back the constitution to Canada and in the following years, I think we will succeed in reaching an agreement. This has been well proven during the summer when we have seen the provinces, perhaps for the first time in the history of federal-provincial relations, come to an agreement on precise and particular matters.

Mr. La Salle: Mr. Le Moignan, I have had the opportunity to ask questions from the Minister of Justice who has been very active during the referendum period.

In hearings with this committee, he has tried for four hours to prove that during the referendum, he had spoken sufficiently about constitutional changes and that Quebeckers should have expected this unilateral action on the part of the federal government.

Personally, I have always thought that at no point during the referendum campaign, the federal government had made it possible to suspect that it would act unilaterally. Mr. Chrétien finally recognized that he had not exactly spoken of a unilateral action …. You were involved in the referendum campaign

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and you have been very honest in your efforts. In all these meetings where you were, you have had many occasions to hear Mr. Chrétien; did you ever hear Mr. Chrétien tell the Quebeckers that, given the possibility of a deadlock with the provinces, he would go to such unilateral action and that, in addition, he would propose entrenchment and, ask the British government to make a decision on the fundamental rights of Canadians, rather than table this amendment package in the House of Commons?

Mr. Le Moignan: I gave 100 per cent of myself to the referendum campaign. I was even provincial vice-chairman with Mr. Ryan and I was involved in executive meetings with Mr. Jean Chrétien, the Minister of Justice. We have met many times and if someone had mentioned that such an idea could come to the mind of the Prime Minister or of some other members of the federal Cabinet, I would have been the first to resign. I would have been the first to quit the no committee, because I did no have the right to lie to Quebeckers. Moreover, on May 4 or May 5, I had expressed some reservations in an interview given to the La Presse daily. I stated that in the last 12 years, Mr. Trudeau never expressed firmly his intention to amend the constitution here in Canada. I had requested a solemn undertaking by Mr. Trudeau before May 20. I understand that in Montreal, he has put all of his valuable members heads on the block. He did not say under what conditions he would drop the guillotine. He did not make any undertakings. We have trusted Mr. Trudeau, as well as all other federalists, since we were all in the same boat. I know one thing for sure, in the referendum, we gave a no answer to a question asked by the government, but we did not approve unilateral patriation. That is altogether something else. Unfortunately, the result was misinterpreted, as soon as May 21, as decision and a desire on the Quebeckers’ parts to give a blank cheque to the Prime Minister of Canada, so that the government could act as it wishes, taking the constitution as if it were its own and as if in the future, the provinces could have nothing to do with it. I think this is quite clear in the Quebeckers’ minds. When you hear Mr. Ryan, Mr. Lévesque and the Union nationale, you can feel today that we are unanimous in our objection to this unilateral action; the results of the last Gallup poll indicate that the Quebeckers are certainly starting to open their eyes and to realize what is happening.

Mr. Goulet: Mr. . Chairman, I have also been present at many meetings during the last referendum campaign. I did not have the opportunity to hear Mr. Chrétien, but I have heard many other spokesmen and during these meetings, their unilateral patriation was never mentioned. We should remember that on May 20 last, Quebeckers have answered a very precise question which was something like: Did you give your government the mandate to negotiate sovereignty association?

A majority of Quebeckers have answered no. We had voted to maintain the federal system, with the understanding that that system would be negotiated and not imposed. That is

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what Quebeckers were expecting and what they are still expecting today.

The Joint Chairman (Mr. Joyal): Mr. La Salle would you please conclude.

Mr. La Salle: I will conclude by saying that I would once again invite our federal colleagues to look closely at the meaning of this document and maybe mention it to the Prime Minister of Canada who claims to have the support of the population of Quebec, whereas today he has been given the definitive proof of the unanimous feeling of the National Assembly. We all know Mr. Ryan’s public statements as well as his writings. Mr. Le Moignan’s interesting submission is a true reflection of the Quebec situation. We know what the position of the Government of Quebec is. Under these circumstances, I hope that the Prime Minister will stop claiming that he has the support of the Quebec population in his scheme for repatriating the constitution.

The Joint Chairman (Mr. Joyal): Thank you, Mr. La Salle.

Mr. Nystrom has the floor now followed by Mr. Lapierre.

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman.

I also wish to thank Mr. Le Moignan and his colleagues for having accepted the committee’s invitation.

I met Mr. Le Moignan in Geneva almost 18 months ago. I am very pleased to see you here this afternoon with your colleagues. I want to ask you a couple of questions along the same line as Mr. La Salle. You voted no during the Quebec Referendum but you did not vote in favour of the proposed resolution. Were this resolution to be adopted by the federal members, do you feel that it would have a negative or a positive impact on Quebeckers, on the future of our country and on our national unity? Is the attitude of Quebeckers becoming more positive or more negative towards Canada?

Mr. Le Moignan: It is true that we did vote no during the referendum, but that does not mean that we voted in favour of the proposed resolution. I am not well acquainted with federal procedures, but I want to point out that we do not vote on resolutions in Quebec, only on bills. I am wondering why the federal government did not table a bill. From what I know of legal procedure, the Supreme Court of Canada cannot rule on a statute adopted by a foreign country. If you had such a statute here, I am afraid you would run into difficulties at the Supreme Court. So the government chose to come up with a resolution submitted to a foreign government, which will make it a British law, which would not come under the authority of the Supreme Court. Coming back to your question, I would say that this is having a very negative effect in Quebec; it almost looks as though someone was trying to incite Quebeckers to separate and to achieve sovereignty. People here claim that this is being done in order to improve the federal system.

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But I do not see how this would improve the federal system when one level of government does not give a darn about the concerns of 10 provincial governments. It will be easy for Quebec separatists to claim that this shows that the federal government, which fought along with us during the referendum campaign, has no wish to respect the decision of Quebeckers. If the government were to go ahead with its plan, I feel this would open the door to separatism.

Mr. Nystrom: Thank you, Mr. Le Moignan. So you feel that our liberal colleagues have not acted in Canada’s best interests. I will now change my line of questioning. You raised a great number of points in your submission. I would ask you a point of clarification, Mr. Le Moignan. On page four of your brief, you spoke about

Quebec Nationalism.

On page five you spoke about

Quebec society.

You have said that nationalism was a positive thought. I agree with you when you say there is in Canada a French Canadian nation, or a Quebecois nation.

On page 6 of your brief, you speak about there being several regions in Canada. Is Quebec a region in your opinion and is Ontario also a region? Is there a difference between Ontario and Quebec or are all regions the same?

Mr. Le Moignan: I know that the word nation in English does not mean exactly the same thing as the word “nation” in French. We ust it in the sociological meaning. We speak of two founding nations, two cultural communities, or two societies and we can also speak about majority groups. That is what I meant when I said that there were two nations in Canada one speaking French and one speaking English. On the other hand our country is obviously divided into regions. Whether we like it or not, Canada’s history has evolved on a regional basis, including the Atlantic region, Quebec and Ontario and the West. In revamping our constitution, we must take into account the legitimate wishes not only of Quebec, but of other groups in Canada who wish to change the constitution, not necessarily in the same way as we would want to. Because you must understand the Francophones who at the present time represent 80 per cent of the Quebec population may one day only account for 25 per cent dues to the democratic process and the increase in population.

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Quebec wishes to preserve its cultural and linguistic identity as one of the two founding groups in order to safeguard its future.

Mr. Nystrom: I quite agree on this point. But again on a point of clarification; you mentioned two linguistic communities, the French and the English. On page 8 of your brief you say that Canada is made up of two nations. I recognize that we do have a French Canadian nation in our country. What exactly do you mean by a Quebecois French Canadian nation?

But are there only two nations in Canada? You said you were using the word nation in its sociological meaning. In English Canada we speak of different regions which differ greatly among themselves as people who have come here from all parts of the world. We had as witnesses this afternoon a group of Indians. Would you say that Indians constitute one nation? We have in Canada more than 50 different Indian and Inuit languages. Are there other nations in Canada? Why are you using this word nation?

Mr. Le Moignan: It is always spoken in Quebec about two founding nations and there are two majorities. The Francophone majority and the Anglophone majority. The Anglophones are made up of Italians, Greeks, Jews and Ukrainians. When you speak about all these groups which have enriched the Anglophone mosaic, these groups are included in the Anglophone majority. When you speak about two majorities, there is the Francophone group …

Mr. Nystrom: You said with all the other groups.

Mr. Le Moignan: That is why we want Quebec to remain a separate entity. We wish to remain this group within Quebec, with Quebec and its focal point and which is unique in North America, a group of 5 million people lost among 250 million Anglophones and we want to maintain this identity.

Mr. Nystrom: You do constitute a nation. But do all these other groups also from a nation?

Mr. Le Moignan: That depends how these various groups define the word nation and what they expect from a Canadian constitution.

Mr. Nystrom: I am asking you this question because you mentioned two nations. What do you make of the Indians and the other natives?

Mr. Le Moignan: We want their rights to be recognized also. We did not study everything in detail. Our purpose in coming here today is to prevent this project from going ahead and without examining the resolution section by section.

Mr. Nystrom: Thank you, Mr. Le Moignan. I have five or six other questions I would like to ask you. I have one question regarding Section 133 of the Constitution as it relates to the

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use of the English and French languages in Parliament and in the courts. This section is now enforced in Manitoba and in Quebec. I intend to table a motion in this committee to have this section of the British North America Act applied in Ontario and New Brunswick.

Mr. Hatfield is agreeable as far as New Brunswick is concerned but so far Mr. Davis has not yet given his approval for Ontario.

Would the fact of having the same linguistic rules apply in Quebec as in Ontario which has the largest population of francophones outside of Quebec be an important symbolic gesture for the people of Quebec? Do you think this would have an impact on the future of Canada and on the unity of our country?

Mr. Le Moignan: We are very careful about this in Quebec. Section 133 now applies in Quebec, in the federal Parliament and also in Manitoba further to the decision of the Supreme Court of Canada. If you are going to have this section extended to Ontario and New Brunswick, we will sooner or later be raising the question of linguistic rights, which brings us to the problem of education which raises an entirely different legal matter. That is why we did not try to reconcile the positions of the courts and of the other provinces, nor have we spoken about linguistic rights as such, because this is liable to cause problems in Ontario and New Brunswick and Manitoba as it bas already done in Quebec.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. I shall now give the floor to the hon. Jean Lapierre followed by Senator Arthur Tremblay.

Mr. Lapierre.

Mr. Lapierre: Mr. Chairman, I also wish to welcome our guests. First of all I wish to make a point of clarification regarding Mr. La Salle’s remark to the Postmaster General that all those who are opposed to the project were nitwits. You should not generalize, Mr. La Salle. He said that you were a nitwit, not the others, and I might add that he was given an enthusiastic round of applause.

Mr. La Salle: He was applauded by the 50 liberals of his riding.

Mr. Lapierre: I remember, Mr. Le Moignan, the platform we shared in Acton Yale during the referendum campaign. I wish to make another point of clarification regarding Mr. La Salle’s remark about the meaning of the document. An article which I read in La Presse this morning while having a cup of coffee reminded me of Ginette Reno’s song “The Last Waltz”.

Having read this article, I felt a bit concerned for the future of political parties in Quebec; at the same time I was wondering whether your listeners from outside of Quebec realized

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that your party represents slightly more than 4 per cent of the members of the National Assembly?

Mr. La Salle: You are being arrogant towards our guests.

Mr. Lapierre: What exactly is the meaning and the scope of this document? Has it been approved by a convention by the members of your party? Whom exactly does it represent?

Mr. Le Moignan: I am trying to think but I fail to see what relation there is between what you just said and the Trudeau constitutional package. Maybe there is some relation in Section 20. When you made your first remark, I thought that we were back in the Quebec National Assembly, that things were getting lively again.

I have no comment to make regarding the article which appeared in this morning’s newspaper. It has no basis in truth whatever. I have no idea of who thought that one up because it is as false as a three dollar bill. I do not see how this relates to the constitution. Thank you for your question anyway. We did fight for the referendum and we fought well, so why should we stop now?

Mr. Goulet: I can answer, Mr. Chairman, if you will allow me. I will have you know that I have taken part in the preparation of these documents and that I am here to represent the 28,000 voters of Bellechasse; my seat is as solid as the seat of the federal member of Parliament for Shefford.

Mr. Lapierre: That is not the question; at any rate, my turn comes less often than yours.

Now, to come back to the content of the documents, on page 16, 17 and 24 you mention the referendum and you seem to be very concerned by the fact that there is no provincial participation. Now, supposing that we religiously listened to your recommendation and supposing that we would make an amendment to allow for a provincial participation in the preparation of the referendum and its technical modalities, would you be more satisfied?

Mr. Le Moignan: I do not know whether this is related to what I mentioned earlier to the effect that if we came back to where we were in September or at any other time and if we agreed on an amendment formula instead of U:nilaterally patriating the Constitution, I think that the federal government and the provinces could come to an agreement. If we agree on the formula, then we can go and get the famous document in England. Mr. Trudeau says that we have been marking time for 53 years; that is true, but we have to come to a better agreement and to a larger consensus and not only Quebec but all the provinces are now more willing to sit at the table once and for all, to leave some differences aside and try to come to a consensus. That is why I have great faith in the negotiations. We are talking of a pact between the provinces and the federal government and I think that it is through negotiations that we will manage to patriate the document.

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Mr. Lapierre: I do not quite understand. Of course you have sent me the copy of your speech at the National Assembly and I have carefully read it. To a question asked earlier by Mr. La Salle, you said that if we can come to an agreement on an amendment formula, it will then be possible to patriate the constitution and then agree on the rest of it; you also say that the Union Nationale has always considered that patriation as well the choice of an amending formula should come at the end of a constitutional revision and not at the beginning. On the one hand, you say that it will have to come at the end but, on the other hand, you say that it will have to be done with an amendment formula and yet without dividing the powers. What do you mean exactly?

Mr. Le Moignan: In the past we could tell ourselves that if it were impossible to come to an agreement, it could be done at the end. But if today we realize that it can be done at the beginning, it is very easy to change one’s position. If we see that it is easier and if as a result of these studies which have been done by the committee, we see that there is another round and that the provinces are ready to come to ·an agreement, these suggestions which we proposed a few weeks ago can be modified very advantageously.

But the unilateral gesture is unacceptable for us. We are ready to accept any other formula which will be tabled. The proposition can come from Alberta, Saskatchewan or Newfoundland and not necessarily Quebec.

Mr. Lapierre: Another question which relates to the answer you gave to Mr. Nystrom; you said that if this proposition were to be adopted, we would open the door to separatism in Quebec. I read in the Journal de Montreal that Mr. Guy Bertrand, who is an active member of the Parti Quebecois, said during the last convention of his party that if the Trudeau proposition were adopted, the dream of independence would go forever. I have difficulty in reconciliating the position of an independentiste and your own position.

Mr. Le Moignan: You know the conclusion of the big squabble between Mr. Bertrand and the Quebec Minister of Justice. Since I was not there and since I did not agree, both of them went to another room.

The Joint Chairman (Mr. Joyal): The honourable Senator Tremblay followed by Mrs. Céline Hervieux Payette.

Mr. Tremblay.

Senator Tremblay: Mr. Chairman, as those who have preceded me and particularly Mr. La Salle, I wish to thank our witnesses and to commend them for the clarity and precision of ‘their position. I think they went to the essential without getting lost in detailed analysis.

However, I will not come back on various remarks which have been made. I would like Mr. Le Moignan and his colleagues to elaborate on several points.

[Page 45]

The first one deals in a way with a question asked by Mr. Lapierre. I shall maybe. ask it in another way to make sure that I understood the position of the Union nationale correctly. Here is the question. What you propose is patriation with an amending formula and I assume that implicitly you also want the implementation of a mechanism which would then allow to proceed with the global revision of the constitution as you pointed out in your brief.

Now Quebec bas always associated patriation to substantial modifications.

I personally feel that things are changing in Quebec and what you say in response to Mr. Lapierre about your own evolution is a good indication of this.

So, here is my question: according to your estimation, are we right in saying that Quebec, the Quebec community and its spokesmen, would be ready to change in the way you have indicated earlier, given the present circumstances? Would there be an agreement on the elements which you underlined in your document provided that this patriation be subject to an acceptable consensus between the two levels of government, as you say. Would there be a consensus even without any other substantial modifications?

I would like to know what you think of this as the political leader of the evolution of attitudes in Quebec, taking into account what has been called the traditional position of Quebec. This question, it seems to me, is very important and it would help us when the time comes to propose concrete suggestions.

Mr. Le Moignan: Of course, I cannot speak on behalf of the Quebec Government.

Senator Tremblay: As a political leader, you have your own perception of the global state of mind in Quebec. This is what I would like you to tell me.

Mr. Le Moignan: Yes. On the basis of our parliamentary committees and the studies which have been published in Quebec and if you also look at the decisions of the political leaders, without speaking on their behalf, and even when the Quebec Government has put its sovereignty option off temporarily in order to take into account the 60 per cent Quebecers who said “no” and at a time when the Quebec Government also wants to come to an agreement on an amending formula to patriate the constitution, then it is possible to say that, on the whole, the people of Quebec would be ready to come to a consensus in order to avoid this unacceptable option.

[Page 46]

We are all for patriation. That is clear. But we cannot accept it such as it is now proposed. As I said, it is dangerous for the future because it is going to give the Parti-Quebecois the opportunity to say that it is impossible to negotiate with the federalists at the other end because they are bull headed and they want to impose a certain conception of federalism which is Mr. Trudeau’s conception of federalism and not federalism such as it should have actually existed since 1867.

I think that all Quebecers understand this major issue.

Senator Tremblay: Therefore, if I am not mistaken, you see that Quebecers are revolving towards acceptance of a kind of patriation which you have described.

I would like to ask you a second question in order to better understand why this evolution is not only possible but probable and can be accounted for.

Do you think that it can be accounted for by the fact that an amending formula such as the Vancouver formula which give Quebec and the other provinces some flexibility as to the definition of the regional characteristics—I am speaking about this part of the Vancouver formula which is called “opting out” in certain well defined matters—Do you think that such a formula would be a factor in the Quebec acceptance of a patriation formula?

Mr. Le Moignan: Definitely. This opting out formula, and we talked about it in Quebec, would allow Quebec as well as all other provinces to retain their proper characteristics in fields where we think it might not be good for us to be part of the general formula.

I think we would favour something like that.

Senator Tremblay: Thank you, Mr. Chairman.

I wanted to ask two questions which I thought were important and I received clear answers to them.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

The honourable Bryce Mackasey.

I am sorry, Mrs. Hervieux-Payette, Mr. Mackasey was already on top of my list and I will come back to you later on.

The hon. Bryce Mackasey.

Mr. Le Moignan: Mr. Chairman, we are ready to answer all the questions that you would like to ask us, but we want to remind you that we have to catch a plane sometime from now.

The Joint Chairman (Mr. Joyal): Could you tell us at what time you would like to leave the committee?

[Page 47]

Mr. Le Moignan: The plane leaves at seven and we were told to be at the airport by 6.50 or 6.55. We could stay here for another 15 minutes.

The Joint Chairman (Mr. Joyal): I understand that we could adjourn at 6.30.

The hon. Bryce Mackasey.

Mr. Le Moignan: We regret this, but …

The Joint Chairman (Mr. Joyal): No problem.

The honourable Bryce Mackasey.

Mr. Mackasey: I regret this too because as you know you are welcome in Ottawa, your national capital.

Mr. Le Moignan: When you change your mind completely we will even feel more so.

Mr. Mackasey: I would like to tell you how much I appreciated your friendship when I was an MP at the Assemblée Nationale in Quebec City, as well as Mr. Goulet’s.

As you know, the 18 months I spent there were amongst the happiest of my 15 or 16 years as a politician.

I would also like to thank you in the name of all federalists for your participation in the referendum. What you did came as no surprise to me because I already knew what a fervent nationalist and at the same time federalist you were. However, I want to take this opportunity to thank you for your very active participation because there are other federalists who did not participate at all in the referendum campaign.

I would like to talk now about your brief in which I find a few errors. On page 25, for example, [Text] where you say “we also object to the fact that this proposed charter will come into effect immediately without the consent of the provinces”, but I would like to speak to you about the importance of the fact that there is a 24 month period during which the provinces and the federal government could very well sit down and come to an agreement on an amending formula other than the one, for instance, that is spelled out here.

Now, you were the one, Mr. Le Moignan, that was talking about how close we are to a settlement, and I might say that I had hoped that we were in that period after the referendum [Translation] However, for people who, like me, have been concerned about national unity for a long time, it was a sad day for us, for the federalists, to see how their first ministers had forgotten the positive attitude that they had at the beginning of the last federal-provincial meeting.

[Text]

I think it was a very sad day. I think that all of Canada for once was watching that federal-provincial conference, they had gone through as participants or non-participants in the referendum, and I felt that if there was ever a moment when the provincial Premiers and the Federal government would have put aside their instinct to protect their own power base perhaps we would have had that amending formula, Mr. Le Moignan, which you think is tantalizingly close. Would you like to comment on that?

[Page 48]

Mr. Le Moignan: When you speak of 24 months, that is a kind of, how do you say, a mouse trap because 24 months, you mean when the constitution is here and after that we have 24 months for the unanimity rule, are you asking something like that?

[Translation]

Mr. Mackasey: No, I am talking about the formula. You talked against the concept of a referendum.

Mr. Le Moignan: When you talk about the 24 months that we will have to become unanimous.

[Text]

Mr. Mackasey: You could then, in that 24 months, come to an agreement with the federal government of the type of amending formula that you prefer rather than the one that is proposed in this constitution?

[Translation]

Mr. Le Moignan: That will be impossible because the federal government knows very well that we will not be able to come to a unanimous decision during these 24 months and it is going to take advantage of it in order to impose a referendum, and after this referendum the federal government will have all the powers necessary to modify the constitution as it would like, whereas if we agree to an amending formula, the federal government could not move unilaterally.

[Text]

Mr. Mackasey: Without getting into what the federal government could say, the good will that you are talking about has not been there …

Mr. Le Moignan: You understand what I mean?

Mr. Mackasey: Yes, absolutely, but rather than argue with you, you are saying that the federal government on its past record would never come around to the type of formula that you favour, the federal government could say there is nothing in our 53 years that would indicate that the provinces are prepared to put a little water in their wine and come up with a formula.

However, when you talk about the [Translation] amending formula, you say on page 21:

The changes that the provinces would like to see and particularly Quebec would need unanimous agreement during the next two years and later on they will have to abide by one of the amending formulas defined in the federal proposed resolution.

However, the federal government is not subject to such a double constraint.

The federal government during that period will have to abide by the unanimity rule as it does today. The proposed resolution gives no power to the federal government to amend the constitution during the first 24 months as it does not give any power to the provinces if they want to amend the charter during that 24-month period. There is no change from what happens right now.

[Text]

Mr. Le Moignan: No, nothing will move during the 24 months, but after, when the referendum comes, that will be a permanent way of negotiation for the federal government. Now the federal governement will be the only winner at that moment.

[Page 49]

Mr. Mackasey: Rather than argue about your version or mine, I would simply say that that unintentionally leaves the wrong impression. I only mention that to you.

I want to say that none of us like the procedure that we are following, pas plus le gouvernement. federal; we would have preferred to be able to bring back our constitution to Canada with an amending formula after consultation and negotiation with the provinces.

[Translation]

That would have been ideal for me, for Mr. Trudeau and for all the members of Parliament.

Mr. Le Moignan: Try to convince Mr. Trudeau and everybody will be happy, the provinces and the federal government.

Mr. Mackasey: It is not the federal government’s fault, if during the last federal-provincial conference in September the parties could not agree to an amending formula that was acceptable to the federal government and the provinces. The Vancouver formula, as you know, is no more acceptable to the federal government than the present deadlock. According to the Vancouver formula, if a province does not like the change it can opt out as you yourself underlined. [Text] and we will have the checkerboard type of country, and I do not think that French speaking Canadians want that.

I just want to say that, [Translation] a last word, not for you Mr. Le Moignan, as we’ are friends.

However, when somebody comes to our meeting and says this is what the Quebecers want, I do not think that he knows what he is talking about because every individual in Quebec has a right to his or her own way of thinking and integrity, [Text] he has got his own integrity, and when any politician gets up and says: this is what Quebecers want; they do not know what Quebecers want. And I do not mean that for you or for any of us, but I think that polls show that what Qeebecers want, instinctively, one strong country with a strong central government and I am sure you want the same. [Translation] Thank you.

[Text]

Mr. Le Moignan: The majority of Quebecers have decided to remain in the federal system but they want to have a federal system which is honest, too, which will keep in mind that.

[Translation]

Mr. Mackasey: We agree with that.

The Joint Chairman (Mr. Joyal): Thank you Mr. Mackasey.

I would like now to give the floor to the honourable Senator Asselin, who will understand that our witnesses are about to leave.

Senator Asselin: Just a few words, Mr. Chairman.

I would like to congratulate the leader of the Union Nationale as well as his goup for the extremely well thought out presentation that they made in front of this committee.

[Page 50]

I want to tell them as well that in spite of the petty remarks by my colleague Lapierre, all of the members of this committee admire their courage for coming to the joint senate and House of Commons Federal Committee to explain their views.

I only have one question to ask which will make us understand perhaps better what happened at the Assemblée Nationale in Quebec City during the debate on the motion presented by the government.

How come there was no unanimous vote taken at the end? What did the provincial Liberal Party object to?

I have the resolution in front of me. The head of the provincial Liberal Party said that he is against unilateral patriation. I notice there is mention of unilateral patriation. How come the provincial party under the leadership of Mr. Ryan voted against a motion from the government?

Mr. Le Moignan: Mr. Ryan as well as all the others were 100 per cent in favour of the government’s motion and there was nothing partisan in it as you can see from the document you have in front of you. However, their Liberal caucus was divided and Mr. Ryan’s Liberal Party voted for the proposed motion, but with an amendment. They wanted the referendum to be mentioned in the motion. We did not agree with this mention of referendum, however .it was only a pretext for the Liberals not to give their unanimous consent and we must remember that Mr. Ryan is squished between Mr. Trudeau and the Quebec population. Mr. Trudeau is still very powerful, even maybe more so than Mr. Ryan.

Senator Asselin: I make the wish, Mr. Chairman, that my colleague Mr. Lapierre use all his influence so that Mr. Ryan, his provincial leader, can come in front of the committee and give us some more information on this important question.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Senator Asselin.

Mr. Le Moignan, Mr. Goulet, Mr. Valade, it is a privilege and an honour for me to thank you in the name of my colleagues on the committee for your participation in our work. On top of all the work and responsibilities that I have as a member of Parliament for Hochelaga-Maisonneuve at the Canadian House of Commons, I also had the responsibility together with my colleagues, the honourable Roch La Salle, to establish a foundation in memory of one of the Union Nationale leaders, Mr. Antonio Barrette, whose interests I share myself.

I wanted to tell you that in spite of our different political affiliation, we all share certain values. During the following

[Page 51]

months, as everybody knows, the Union Nationale party will have a heavy task to fulfil and we want you to know that my colleagues and myself wish you the best of luck.

[Text]

Mr. Epp: On a point of order.

The Joint Chairman (Mr. Joyal): Sur un rappel au Règlement, l’honorable Jake Epp, suivi de M. Nystrom.

Mr. Epp: Thank you, Mr. Chairman. In view of the hour, I will be very brief.

Mr. Chairman, I have given you today copies of four letters, three of which are pertinent to the work of this Committee.

First of all, I have given you a letter which outlines an invitation which I have extended to the former Premier of the. Province of Quebec, the Honourable Robert Bourassa, to appear before the Committee relative to the answering of the question of the Victoria formula and for the special purpose of giving the Committee evidence on the consensus known as the Victoria Formula of 1971.

As you know, there was an exchange on that matter in the. Committee yesterday, an exchange which was ably led by Senator Tremblay; you have a letter to that effect.

Secondly, you have a letter with respect to Mr. Grant Devine, who was the opposition leader in the Province of Saskatchewan. As you know, both the steering committee and this Committee have concurred that parties which have representation in provincial legislatures should have the right to appear before the Committee.

Mr. Devine has written a letter to the Honourable Perrin Beatty. That letter is also attached, and I would think that there should be no problem with respect to that one.

Thirdly, there is the question of the leader of the opposition in the National Assembly in the Province of Quebec, the Honourable Claude Ryan. As you know, Mr. Ryan, in his speech on December 3 to the National Press Club here in the City of Ottawa, made the remark that, should the Committee get an extension of time, he would have to reconsider his position as to whether or not he would appear before the Committee.

Now, in view of that kind gesture on the part of Mr. Ryan, I have written a letter to you, sir, the deadline being today, requesting that Mr. Ryan be scheduled to appear before this Committee.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, the Honourable Jake Epp.

With respect to the letter dealing with the request of Mr. Grant Devine, the Leader of the Opposition for the Province of Saskatchewan, like you, I see o difficulty with regard to that.

We are making sure that due consideration, privilege and priority be open for any provincial leader or official opposition leader. In that regard, I believe it is safe to say, on my

[Page 52]

interpretation, that there is consent and unanimity around this table.

Mr. Nystrom: Mr. Chairman, if I may interject something on that point.

The Joint Chairman (Mr. Joyal): Yes, Mr. Nystrom, if you want to speak with regard to the request of the leader of the opposition of Saskatchewan—your own province—I would certainly welcome it.

Mr. Nystrom: I certainly would like to. I have also another point of order, but I would raise that afterwards.

My point is a very small one, just to clarify the record.

I would like to say that I fully support having the leader of the Conservative Party from Saskatchewan appear before the Committee, not only because I am a fellow Saskatchewan, but also because he represents the group that forms the opposition party in my legislature.

However, for the record, Mr. Grant Devine is not the leader of the opposition in the Saskatchewan legislature; he does not have a seat in the Saskatchewan legislature. He is not an MLA. The voters, in their wisdom, in a by-election three weeks ago rejected him and elected one of our members in place of Mr. Devine. The leader of the Opposition of Saskatchewan is Mr. Berntson.

I have no opposition whatever to having Mr. Devine, as party leader, come down. But I would just like to make it clear that he is not the leader of the opposition but leader of the party which formed the opposition. I am entirely in favour of Mr. Devine coming here as a spokesman on behalf of the leader of the opposition.

Mr. Epp: Mr. Chairman, I believe that Mr. Nystrom would accept that Mr. Devine is the leader of the Opposition in the Province of Saskatchewan, though he is not the leader of the opposition in the Saskatchewan Legislature.

The Joint Chairman (Mr. Joyal): That is the way I have read your letter, Mr. Epp, and I thank Mr. Nystrom for his qualification.

[Translation]

Mr. Corbin: Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Corbin.

Mr. Corbin: On a point of clarification on what you said before recognizing our colleague, Mr. Nystrom.

You said that there was consensus or unanimity but I did not understand on what.

Would you please repeat what you said?

The Joint Chairman (Mr. Joyal): Of course.

You will recall, Mr. Corbin, that during our previous discussion we agreed in the subcommittee on agenda and procedure and there was a report which was agreed upon by the hon. members of this Committee to the effect that we would give priority to the Premiers of the provinces who wish to appear before this Committee or to their leaders of the opposition parties in their provincial legislatures and the Assemblée nationale. This was the position on which we agreed.

[Page 53]

Therefore I was only applying a previous decision of the hon. members of this Committee and I did not see any reason to reconsider your previous decision. Therefore I agreed in good faith with the proposal made by the Hon. Jake Epp and seconded by Mr. Nystrom.

As far as the other requests made by Mr. Epp, I will make other comments. L’honorable Perrin Beatty.

[Text]

Mr. Beatty: Mr. Chairman, could I just get some brief clarification from Mr. Epp. I believe Mr. Epp indicated, with reference to Mr. Bourassa that be had been invited. If I understand Mr. Epp correctly, he is asking that the Committee invite Mr. Bourassa to appear before the Committee as suggested by Senator Tremblay yesterday.

The Joint Chairman (Mr. Joyal): Well, if you will permit me to do so, I will deal with all those letters separately. If I consider it advisable and appropriate to refer the matter to the steering committee I will inform you in the proper way. But I consider that the request of the leader of the opposition of the Province of Saskatchewan has been decided upon by this Committee with unanimity.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): Now with regard to Mr. Claude Ryan, he is still leader of the official opposition party in the legislative assembly or l’Assemblée Nationale du Québec and I fully recognize that this Committee could invite a witness to appear.

Following consultation with our clerk, I understand that Mr. Ryan has not made any request to be heard at this stage. I also understand that we cannot compel a witness to appear.

As we have said previously, we have extended the date to the 17th of December for any witness who would like to appear. If Mr. Ryan accepts and informs honourable Members of this Committee, or the clerk that he would like to come, then we will treat his request with the same respect that we would accord one of the leaders of the Province of Saskatchewan.

But, if Mr. Ryan is expecting a formal invitation from this Committee, then that is entirely a different matter or decision, and it would have to be considered by all honourable Members around the table. Because I have not been informed by the clerk up to this point that Mr. Ryan has made any request to appear. If he does, in fact, make such a request—and in accordance with our decision, he has up until midnight to put a letter in the mailbox—then I will certainly treat that request in the same way as the others.

But at this point I consider that we would have to take a decision to invite formally Mr. Claude Ryan on behalf of honourable Members of this Committee.

[Page 54]

[Translation]

Mr. Bryce Mackasey on the same question.

[Text]

Mr. Mackasey: Mr. Chairman, I think that common courtesy—and I use that word moderately—makes it imperative that we be informed before 7.30 p.m. or 6.00 on a matter of this importance.

The selection of witnesses to date has been pretty well the decision of the “bus squad” or the steering committee, or the subcommittee, or whatever you wnat to call it. It has worked remarkably well. So well, in fact, that it has reflected the views of members of the various parties. So that to come along now and ask again a full committee to make a decision which normally rests with the “bus squad”—I think there is another word for that.

Some hon. Members: Traffic committee.

Mr. Mackasey: Yes, the traffic committee—well, I knew it had something to do with highways; but that is still the proper procedure and one which creates the best climate, and also has produced the best results so far; not only so far as witnesses are concerned but as regards, for instance, the compromise on the question of the number of experts.

Now the suggestion as to Mr. Bourassa, I do not know whether Senator Tremblay was being facetious or serious; but it should not be very difficult to find out the wording of the Victoria Formula and what happened without inviting the former premier of the Province of Quebec to come and tell us. We have officials here. We have the Prime Minister. We have documents, records, the official transcript of what occured in 1971 or 1972. In all fairness to Mr. Bourassa, one of us could quite easily take the position, after listening to the gentleman who is a personal friend of mine of an exception to his version.

I think that Senator Tremblay, who is a very, very learned constitutional expert—and we are all agreed, I believe, on that—does not have to rely on these particular methods to make a point.

I remember the conversation and the references to Mr. Bourassa. Mr. Bourassa is a very honourable gentleman and an esteemed politician, and if he wants to appear before the Committee then he only has to make application like any other Canadian, and I am sure that such an application, though it will not necessarily be accepted, would at least have some priority.

I note that some honourable gentlemen are laughing, but before they do, they may be surprised at the position Mr. Bourassa may take; because he, like all politicians, varies in his views from year to year, and one never knows what view he may take here.

If we really want to know exactly what we said at Victoria—and I would almost suggest that you do—we can always make reference to the records which exist here in Ottawa. So, suggestions of this kind are rather frivolous to say the least.

The Joint Chairman (Mr. Joyal): Thank you, Honourable Bryce Mackasey.

Mr. Nystrom followed by the Honourable Jake Epp.

[Page 55]

Mr. Nystrom: Mr. Chairman, I do not think that the suggestion of a prominent Quebecois is frivolous. I have immense respect for both Mr. Ryan and Mr. Bourassa.

Mr. Mackasey: On a point or order, Mr. Chairman. I did not mention Mr. Ryan. I entirely concur with what you have said, that Mr. Ryan should not be embarrassed by being summoned, even politely by invitation.

Mr. Ryan knows that he is welcome. If and when he makes a request, I am sure it will be given the attention it deserves; and I would imagine, if he is watching these proceedings he would be very embarrassed at what is going on at the moment.

The Joint Chairman (Mr. Joyal): Mr. Nystrom, have you completed your point of order?

Mr. Nystrom: That was only a pause.

But I want to say that I have no objection to inviting either Mr. Ryan or Mr. Bourassa. My recollection—and I am sorry that Senator Austin is not here to speak for himself, but I have checked with Mr. Epp—that we agreed as a troïka to recommend to this Committee that we invite any ex-premier who wants to appear. We all three agreed on that.

Mr. Mackasey: On a point of order, Mr. Chairman. It comes back to the procedure. Mr. Austin is not here and would have been here had we been forewarned as to what was coming up. We have not the slightest evidence here that Mr. Bourassa expressed the slightest interest in appearing before the Committee.

The Joint Chairman (Mr. Joyal): I would like to advise honourable Members very humbly that I do not see a quorum to enable a decision to be taken around the table at this point; so I consider this to be a exchange of views which might help the steering committee to recommend further decisions to be taken by honourable Members of this Committee sitting in full session.

The Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I said earlier that I did not intend to make this a full blown point of order.

With the greatest respect to my friend, Mr. Mackasey, I think he has possibly made the quantum leap and he has jumped into the pool not realizing it is winter and that it is frozen over.

That being the case, Mr. Chairman, there are a few points I would just like to make. First, there is the question of common courtesy. I think there is a common courtesy, namely that I put it in the letter that an invitation be extended. We get invitations every day to various events or functions. An invitation is not a summons. That is the first point. The word “summons” is a little strong.

Secondly, I would like to reiterate that Mr. Ryan, in terms of his perception of the work of this Committee as well as the perception he has as leader of the opposition in the Province of Quebec, has stated on a number of occasions that he has—and I quote—”not received an invitation from the Committee.” So,

[Page 56]

maybe we are dealing with semantics, but if I understand the public position correctly, before Mr. Ryan could consider putting forward his own request, he would appreciate the invitation.

I do not want to take up the time of the Committee on this mater, but this was my original purpose before Mr. Mackasey took his quantum leap, that this matter be referred to the steering committee. I do not propose to take up the time of the Committee by making any full blown point of order here.

The Joint Chairman (Mr. Joyal): Thank you, Honourable Jake Epp. That is the way I have viewed your letter. You know, you are a very learned member of Parliament in terms of procedure, and I can well understand that if you had a motion to put on the table, you would not have sent a letter to our helpful clerk, but would simply have ta bled your motion.

So that is the way I have received your letter, in that you want to inform us and the steering committee members that you would like the matter to be considered later on by them. On the same point, Mr. Corbin.

[Translation]

Mr. Corbin: Mr. Chairman, I think the whole question of this proposal could be clarified and even solved if we referred it to the troïka committee as it was called and, if necessary, to the Subcommittee on Agenda and Procedure.

The Joint Chairman (Mr. Joyal): Mr. Corbin, I would be ready to entertain this suggestion.

Maybe however, we should instead of using the word “troika” which refers to a political system towards which some of us might have reservations we could use the word triumvirat which seems much more agreeable.

On the same point of order, the honourable Senator Asselin.

Senator Asselin: No, Mr. Epp said what I wanted to say.

The Joint Chairman (Mr. Joyal): Very well.

Senator Asselin: I wonder, Mr. Chairman, if this meeting is regular; there should be two Co-Chairmen.

The Joint Chairman (Mr. Joyal): No. I can answer this question immediately.

There are two Co-Chairmen but there is only one who chairs the meeting at a time, which allows the other one to vote when a vote is held as you could notice in the past.

Therefore, this meeting is totally regular. However, what we cannot do right now is vote on something because there is no quorum.

The Honourable Senator Tremblay.

Senator Tremblay: I am not too familiar with the procedure and therefore I am not sure if I am on a point of order.

I want to refer to a word used by Mr. Mackasey which qualified the suggestion I made yesterday to invite Mr. Bou-

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rassa to come and testify before this Committee. Mr. Mackasey used the word “facetious” or something of the kind.

Mr. Mackasey: No, no, I used the word “frivolous”.

Senator Tremblay: What I understood was Facetious [Text] or something like that.

[Translation]

If the word “frivolous” was used and I cannot really judge the English language anymore than I can judge the use of this word by Mr. Mackasey, I would like to reassure him as to the seriousness of my suggestion yesterday considering the time and place when it was made.

Senator Austin referred very precisely to the consensus in Victoria and mentioned Mr. Bourassa by name. However, according to the information that I gathered in the past, it seems to me that the consensus was not as strong as Senator Austin suggested and that there were qualifications to ‘be made; it seemed only natural that the Committee should investigate this and ask Mr. Bourassa himself. The suggested invitation aimed at asking Mr. Bourassa exactly what kind of a consensus it was on which our Committee bases its thinking.

The Joint Chairman (Mr. Joyal): Thank you, Honourable Senator Tremblay.

Honourable Bryce Mackasey, to sum up.

[Text]

Mr. Mackasey: If Senator Tremblay was serious, not frivolous, it surprises me but I accept his word that he was serious and I will withdraw the word “frivolous”. If he is serious in thinking that we are going to accept automatically Mr. Bourassa’s versions of inside politics, if you like, I am sorry, we are not, mch as I respect him. If we want to know officially what happened in Vancouver or Victoria as recorded, them I am simply saying there is an easier way of finding out than inviting Mr. Bourassa, but on the other hand if Senator Tremblay was serious, then I accept his word and withdraw gladly the word “frivolous”.

The Joint Chairman (Mr. Joyal): I think, Mr. Mackasey, that you are a gentleman of courtesy …

Mr. Mackasey: That goes without saying “frivolous” is a gentleman’s word. I did not say anything more difficult.

The Joint Chairman (Mr. Joyal): And the honourable Mr. Bourassa was once your political leader …

Mr. Mackasey: And a close friend. Still is.

The Joint Chairman (Mr. Joyal): And a close friend still, so I understand that you would not have given any kind of attention if you would have used this word. So I consider that there are no more interventions and [Translation] The meeting is adjourned until 10:15 tomorrow morning when we will hear the representatives from the National Anti-Poverty Organization and Public Interest Advocacy Centre.

The meeting is adjourned.


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APPENDIX “CCC-5”

REPORT
of the
FOURTH RUSSELL TRIBUNAL
on
THE RIGHTS OF THE INDIANS OF THE AMERICAS

November 1980

In the city of Rotterdam, between November 24th and 30th 1980, the members of the jury and other bodies of the Fourth Russell Tribunal came together in order to consider alleged violations of the rights of the Indians of the Americas. Out of the forty-five cases submitted to the Tribunal, fourteen were accepted for presentation through witnesses, experts and documentation. Many others have been presented in a more informative way.

Moreover, testimonies were received of other indigenous peoples of other continents, who have continued to be victims of genocide and ethnocide.

1. Introduction

This tribunal has witnessed something remarkable in the midst of a tragedy

Many voices have spoken before us and have expressed vividly the vitality and the capacity for resistance, found among the Indian people. In contrast to what has occurred in many other parts of the world in similar circumstances, a significant number of Indian nations and communities in the Americas have preserved their own identity and cultural initiative, in spite of the unremitting efforts of genocide and ethnocide directed against them.

It may well be that the most severe persecution in human history, lasting for almost five hundred years, has been mounted against the native peoples of the Americas. We refer to the wars of conquest, the fatal contagions brought to the Americas as a part of European contact; the enslavement and forced labour systems; integration by violent means into a colonialist economic system incompatible with their community organization of production and way of life and inconsistent with their self-determination; and the prohibition of their religions and the use of their languages.

The program of cultural destruction and social oppression of the native People of the Americas did not cease when the several countries of the American continent declared their independence. On the contrary, I they simply assumed new forms. Since then, the machinery of internal colonialism has been continuously consolidated, ruthlessly seeking the desintegration of Indian communities. Now we are seeing an intensification of aggression led by governmental and local ruling groups, often dominated by transnational centers of powers.

In the countries where the Indian people are in a majority the artificial nature of states which do not express the multiethnic and multi-cultural character of the people becomes

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clearer each day. Today the Indians are questioning this false situation and are seeking a radical transformation.

In countries where the Indians are islands in a sea of alien culture, the governments deny to the Native People the right to be and continue to be themselves. And in all situations, in practice, the Indians are reduced to the status of raw material · for other people’s use. Many cases submitted to the fourth Russell tribunal have demonstrated, with powerful eloquence, the usurping character of the governmental bodies which are supposedly dedicated to the protection of the native people and to the safeguarding of their rights. We have been confronted with concrete cases of genocide and ethnocide: massive killings of Indian people; harassment of their traditional homelands and expulsion from their historic territories; plundering of their natural resources; extreme exploitation of their labour and violation of the spiritual foundations of their cultures for which both the land and the living creatures are sacred.

The oral and written testimony of victims, before this tribunal, has borne witness to unimaginable tragedies and crimes. On the other hand during the hearings we have been impressed by the invicible determination of the Indian nations who do not seek to impose their way of live on others but who, with dignity, demand respect for the right to their identity in a pluralistic world.

We are faced with a universal uprising of oppressed nationalities and growing demands for autonomy. They seek an end to enforced alienation and the recovery of cultural identity. Centralized governmental structures are experiencing crises in states which include different nationalities and ethnic groups. This situation coincides, in America, with the breakdown of a European-centered concept of civilization according to which the only civilized people are those who act like Europeans or those elites who pretend to be carriers of ‘western’ culture.

This tribunal has served as a forum for testimony against ethnocidal oppression and for the free expression of the will to struggle against those powers that still wish to wipe out the authentic character of the oldest cultures of America.

Against the universal machinery of economic exploitation and cultural castration, the Native Peoples of the Americas offer their tragic but inconquerable and civilizing message. They have conserved and enriched ancient cosmic visions and models of community founded upon reciprocity rather than greed; they have maintained the communion between culture and nature, and they make available to us all indispensable. keys to human fulfillment.

II. Legal Definitions

a. Self-determination is defined as the right of a people “to determine, without external interference, their political status and to pursue their economic, social and cultural development” (Declaration on the principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the United Nations)

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b. To be entitled to the right of self-determination a group must constitute a people, which is defined as: “a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by the identity of race, religion, language and tradition in a sentiment of solidarity with a view to preserving their traditions, maintaining their form of workship, insuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race -and rendering mutual assistance to each other”. (International Court of Justice, 1970, Greco-Bulgarian case)

2. Genocide

Genocide means acts committed with intent to destroy, in whole or in part, a national, ethnical, racial of religions group.

3. Ethnocide

Ethnocide means that an ethnic, religions or linguistic minority or a person belonging to such a minority is denied the right, in community with the other members of the group, to enjoy its own culture, to profess and practise its own religion, or to use its own language.

4. Human Rights

“Human Rights” does not have a precise definition. On the other hand the· concept of human rights as stated in the Universal · Declaration of Human Rights, bas a core of reasonable certainty. Some of its provisions constitute either general principles of law or represent elementary considerations of humanity. The Universal Declaration of Human Rights must be considered as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall strive by teaching and education to promote respect for the rights and freedoms as mentioned in the Universal Declaration without any distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

III. Findings and Conclusions

A. Cases

ACCUSER: Grand Council Treaty No. 9 (Association of Treaty 9 Chiefs) representing the Nishnawbe-Aski nation.

ACCUSED: The Government of Canada, the Provincial Government of Ontario.

LOCATION: Northern Ontario (Canada).

SUMMARY OF EVIDENCE

The James Bay Treaty concluded in 1905 covers an area of approximately 210,000 square miles. There are 40 Indian communities scattered throughout the area of which 30 are only accessible by air. The population exceeds 20,000 which represents about 30 percent of the total Indian population of Ontario. The Indians were told that they were signing a treaty of peace and good will towards the King and other white men in exchange of which they were to receive certain government

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assistance. They were not told that the irrevocable surrender of their territorial rights was also a provision of the treaty. The treaty was written in English, a language not spoken by the Nishnawbe-Aski in 1905. They contend that Treaty Number Nine is invalid, because the most important ingredient of the transaction, namely consent, was missing. The Indian people could not consent, because the actual terms of the treaty were not fully explained to them.

Violations of International Law

We, the members of the IVth RUSSELL TRIBUNAL, find that the actions of the Canadian government and the provincial government of Ontario against the Nishnawbeaski nation violate the following provisions of International law: 1) The attempts to take the Nishnawbeaski nation’s land from them by illegal means violate:

—Articles 17 (1) and (2) of the Universal Declaration of Human Rights

—Articles 21 (1) and (2) of the American Convention on Human Rights

—Article 5 (d) (v) of the International Convention on Racial Discrimination

ACCUSER: Conseil Attikamek Montagnais (Canada)

ACCUSED: Canadian Government

LOCATION: The Attikameks and the Montagnais number about 10,000 persons and live in Québec. The Attikameks live in the region of St. Maurice; the Montagnais live in Côte-Nord du St. Laurent.

SUMMARY OF EVIDENCE

This case involves a unilateral extinguishment of landright by legislation and the de facto violation of native landrights by the construction of a hydro-electric project.

In 1972 the government of Québec decided to develop hydro-electric projects in several rivers in the north-western part of the province. Several Indian tribes were affected by these measures, the Cris and the Inuit as well as the Attikamek, Montagnais, Algonquins and Naskapis.

After several legal actions by the Indians and by the government itself, the government started negotiations with the Cris, the Naskapis and the Inuit only. These negotiations resulted in two Treaties: «la Convention de la Baie James et du nord québécois» and «la Convention de nord-est québécois», in which the Cris, the Naskapis and the Inuit tribes surrendered their land-rights. Because only the Canadian Parliament may conclude a Treaty, a bill had to be approved by the parliament. So, the House of Commons passed a bill (Bill C-9; May 4th, 1977), in which these treaties were ratified. In this bill, however, all indigenous rights and titles to territory were annulled. By so doing the Canadian Parliament extinguished unilaterally the landrights of the Attikameks, Montagnais and Algonquins also. This was done notwithstanding vivid and

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official protest on the part of the Attikameks and the Montagnais.

Some official commissions in Canada have already condemned this unilateral extinction of landrights with its severe consequences for the said tribes. As long as this law remains in effect and as long as the Canadian Government doesn’t acknowledge the territorial rights of the Attikameks, Montagnais and the Algonquins, their future and their survival as a people is at stake.

Violations of International Law

We, the members of the Russell Tribunal, find that:

1. The actions of the Canadian · government violate the rights of the Attikameks and Montagnais to retain their land, which is protected by:

—art. 17 of the Universal Declaration of Human Rights

—art. 21 of the American Convention on Human Rights

2. Those actions also violate:

The Indians’ right to control their natural resources and economic development, which are protected by:

—art. I of the International Convention on Economic, Social and Cultural Rights

—paragraph II of the Declaration on the Granting of Independance to Colonial Countries and Peoples

—General Assembly Resolution. 1803, concerning Permanent Sovereignty over Natural Resources.

ACCUSER: Sovereign Haudesonaunee Confederacy

ACCUSED: United States, State of New York, St. Regis Mohawk Tribal Council

LOCATION: Vicinity of the U.S. —Canadian border, North of the State of New York

SUMMARY OF EVIDENCE

The Haudenosaunee (the Six Nations of the Iroquois Confederacy) is a confederation of six sovereign nations in the north-eastern United States. It is governed by the Grand Council, composed of chiefs of the member nations. The chiefs of each nation are appointed by the clan mothers.

The Mohawk Nation, a member of the Confederacy, presents its claim that the United States is denying its right to its homeland on the basis of a fraudulent treaty, and that the State of New York has imposed an alien government against the wishes of the Mohawk People. The aboriginal territory of the Haudenosaunee was guaranteed in various treaties it made with Great Britain. After the American Revolution, that guarantee was repeated in the Treaty of Fort Stanwix (1784) between the Haudenosaunee” and the United States.

The Mohawk Nation has never ceded any of its treaty-guaranteed aboriginal territory. New York State, however, claims title to most of the Mohawks land,. based on a 1797 treaty. The “treaty” was signed by representatives of the State of New York and two individuals who claimed to represent the Mohawk Nation. Neither individual, however, had ever been

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appointed a Mohawk chief or to the Grand Council, and therefore had no authority to act on behalf of the Mohawk Nation. Mohawk law prevents sale of the Nation’s land, which is held in common, by any individual.

In addition, the State of New York has, with active support of the United States, enacted legislation creating a St. Regis Tribal Council to govern Mohawk people and land. Neither the traditional Mohawk government nor the Mohawk people were ever consulted and have never agreed to the change in their form of government. There is a no basis in Mohawk law for the Tribal Council’s exercise of jurisdiction over the Mohawk Nation. The Council has created a police force which is unauthorized under the Mohawk law, but which interferes with the traditional government and with the property and rights of the Mohawk people. The Tribal Council is supported by New York State police and courts, and the United States refuses to restrain the unlawful interference. Mohawk people are under indictment in state courts for refusing to submit to the authority of the illegally imposed Tribal Council. The State of New York has used and threatens to use its armed forces to arrest Mohawk people and remove them from their territory if they refuse to recognize the authority of the imposed government.

Opening Ceremony: Jake Tekayonioneken Swamp

Accuser: Oren Joagquisho Lyons
John Sotsisowah Mohawk
Mike Segwalise Myers

Expert Witnesses: Loran Kanasaraken Thompson
Jake Tekayonianeken Swamp
Edward Kanawahientop Benton
Vincent Shagogenhey Johnson

We, the members of the Tribunal, find that:

The actions of the United States and the State of New York, directed against the Mohawk Nation and its traditional government, violate the following provisions of international law:

1. The accused are violating the right of self-determination of the Mohawk people by creating an alien government and imposing it in Akwesasne. The right of self-determination is protected by:

—articles 1 and 55 of the United Nations Charter

—article I of the International Covenant on Civil and Political Rights

—article I of the International Covenant on Economic, Social and Cultural Rights

—Principle VIII of the Helsinki Final Act

—The Declaration on the Granting of Independence to Colonial Countries and Peoples

—General Assembly Resolution 1803 (XXII) Concerning Permanent Sovereignty Over Natural Resources

2. The use of force by the State of New York, with the approval of the United States, against the Mohawk people and territory, and its unwillingness to resolve disputes by peaceful means violate:

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—Article 2, sections 3 and 4 of the United Nations Charter

—Principles II, III, IV and V of the Helsinki Final Act

3. The failure of the accused to respect the jurisdiction and lands of the Mohawk Nation and traditional government violate:

—The Treaty of Fort Stanwix

—The Treaty of Conandaigua The failure to honor those treaties violates:

—Principle X of the Helsinki Final Act

4. The attempt to extinguish Mohawk land rights without consulting the traditional Mohawk government violates:

—Articles 13(1) and (2) of the Universal Declaration of Human Rights

—Articles 21(1) and (2) of the American Convention on Human Rights

—Articles 5d, 5v, of the International Convention on Elimination of All Forms of Racial Discrimination

5. The right of the Mohawk people to a fair and neutral tribunal for determination of their rights is protected by:

—Article 10 of the Universal Declaration of Human Rights

—Article 8 of the American Convention on Human Rights

ACCUSER: Sovereign Hopi Nation

ACCUSED: Hopi Tribal Council and Government of the United States

LOCATION: Within the territory of the Diné (Navajo) Nation, northeastern Arizona, U.S.A.

SUMMARY OF EVIDENCE

The Hopi have occupied their land in the southwestern United States for well over a thousand years. The Hopi live in several independent villages which together form the Hopi Nation. The Hotevilla Hopi have presented two issues: the alien form of government imposed on them and the attempted theft of their lands. Both acts were carried out by ·the United States government.

The evidence shows that the United States Congress passed the Indian Reorganization Act (I.R.A.) in the early 1930’s and immediately began to try to convince the Hopi to adopt U.S.-style government. The majority of the Hopi wished to retain their traditional form of government in which each village was governed by its kikmongwi (spiritual leader).

The United States Bureau of Indian Affairs conducted an election among the Hopi to decide whether to organize a new form of government. Most Hopi people expressed opposition to the proposal in their traditional manner: by abstaining from voting. The United States, however, ignored that overwhelming expression of Hopi opposition and considered a vote of approximately 10% of the population eligible to vote to be a binding acceptance.

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The United States has refused to respond to repeated attempts by the Hopi since that time to demonstrate that they wish to keep their traditional form of government, and that they do not wish to organize under the I.R.A.

The Hopi Tribal Council (the I.R.A. government) signs contracts to exploit resources on Hopi land despite the opposition of the traditional Hopi people, the resulting deterioration of the air, land and water of Hopi country, and the destruction of Hopi sacred sites. The Hopi Tribal Council violates several provisions of the (I.R.A.) Hopi Constitution, including the prohibition on sale of tribal lands or other property (Article VI, section l(e)) and the provision that the kikmongwi shall be the leader of a village until the village decides to organize differently (Article III, sections 3 and 4).

The evidence shows that the United States have also worked against the wishes of the traditional Hopi people who want to preserve their land rights. The 1882 Executive Order Reservation (i.e. the Hopi Reservation, much smaller in size thant the Aboriginal Hopi lands) excluded much of the Hopi’s aboriginal land. An attorney was hired and a claim (cocket 196) was filed at the Indian Claims Commission, seeking a money judgement in exchange for which the aboriginal landtitle would be extinguished, over the clearly stated objections of the traditional Hopi people.

The actions of the United States and the (I.R.A.) Hopi Tribal Council therefore violate the principles of authority, leadership, and decision-making systems of the traditional Hopi people.

We, the members of the Fourth Russell Tribunal, find: that the actions of the United States, the energy companies, and certain Christian churches directed at the Hopi people violate the following provisions of international law:

1. Imposition of an alien government violates the Hopi people’s right of self-determination. The right of self-determination is protected by:

—Articles I and 55 of the United Nations Charter

—Article I of the Internatioal Covenant on Civil and Political Rights

—Article I of the International Covenant on Economic, Social and Cultural Rights

—Principle VIII of the Helsinki Final Act

—The Declaration on the Granting of Independence to Colonial Countries and Peoples

—General Assembly Resolution 1803 (XXII) Concerning Permanent Sovereignty Over Natural Resources.

Further, Article 21(3) of the Universal Declaration of Human Rights provides that the will of the people should be the basis of the authority of a government.

2. Theft of the Hopi people’s land violates the following: The right to own property is protected by:

—Article 17 (1 ,2) of the Universal Declaration of Human Rights

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—Article 21(1,2) of the American Convention on Human Rights

—Article 5(d)(v) of the International Convention on Elimination of All Forms of Racial Discrimination.

3. Forcing certain forms of economic development on the Hopi people against their will violates the following:

—Article I of the International Covenant on Civil and Political Rights

—Article I of the International Covenant on Economic, Social and Cultural Rights

—Principle I of the Helsinki Final Act

—Paragraph I of the General Assembly Resolution 1803 (XXII) Concerning Permanent Sovereignty Over Natural Resources

—Paragraph 2 of the Declaration on the Granting of Independence to Colonial Countries and Peoples.

4. The United States refusal to respect the Treaty of Guadalupe Hidalgo violates:

—Principle X of the Helsinki Final Act.

5. Removing Hopi children from their families violates:

—Article II(e) of the convention on Prevention and Punishment of the Crime of Genocide.

6. Attempts to indoctrinate Hopi children in Christian religion, and destruction of Hopi sacred sites violate:

—Article 18 of the Universal Declaration of Human Rights

—Article 12 of the American Convention on Human Rights

—Article 18 of the International Covenant on Civil and Political Rights

—Principle VII of the Helsinki Final Act.

7. The Hopi right to educate their own children is protected by:

—Article 13(3) of the International Covenant on Economic, Social and Cultural Rights

—Article 26 of the Universal Declaration of Human Rights.

8. The Hopi right to a fair and neutral tribunal for determination of their rights is protected by:

—Article 10 of the Universal Declaration of Human Rights

—Article 8 of the American Convention on Human Rights.

9. The United States has deceived and lied to the Hopi people. That action violates the right of the Hopi people to know and act on their rights, as protected by:

—Principle VII of the Helsinki Final Act.

ACCUSER: Big Mountain Dinge (Navajo) Nation

ACCUSED: The United States of America

LOCATION: State of Arizona, U.S.A.

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SUMMARY OF EVIDENCE

Approximately 6,000 Navajo people, living a traditional pastoral life are currently facing removal from their ancestral lands and relocation to white border towns approximately 100 miles from their own current homes. Most of these people do not speak English and have spent all of their lives raising sheep and growing certain crops in the semi-arid, mile-high region referred to by the United States government as the Joint Use Area (JUA). For the Indian people involved, this case begins before written record first occured; for white America, it begins with the signing of a presidential order in 1882.

On December 6, 1882, President Chester A. Arthur set aside approximately 4,000 square miles in what was then the Arizona Territory for the Hopi “and such other Indians as the Secretary of the lnterior may see fit to settle thereon”, without regard to whether there was, at the time, any other Indian presence within the newly created Hopi reservation. The Hopi, a pueblo people, then lived, as they now do, in less than a dozen autonomous villages constructed on the mesas in the southern part of the 1882 reservation. The balance of the 4,000 square mile area was occupied by the immediate forebears of the contemporary accusers, as well as a certain number of Paiute Indians. Generally speaking, the three Indian groups of this area lived a peaceful and uneventful life.

In 1934, the United States Congress enacted was is known as the Indian Peorganization Act, allowing the individual Indian nations to adopt an elective tribal council government instead of the various traditional forms to be found in the several Indian nations. An election, a process totally foreign to the traditional Hopi, was held among the Hopi to determine whether they would thereafter be subject to a central, U.S.-style legislative and executive body. Virtually all of the several thousand traditional Hopi refused to vote, thereby ‘losing’ the election to the approximately 650 ‘progressive’ voters who were in favor of the European-based nation of democracy. Thus was born the Hopi Tribal Council and the Hopi-Navajo land dispute.

Under pressure of the Hopi Tribal Council, the Bureau of Indian Affairs (BIA) set aside a portion of the 1882 reservation for the exclusive use of the Hopi for grazing cattle. Coincidentally, the members of the Hopi Tribal Council were cattlemen, while the traditional Hopi employed a unique dry-farming technique, which was and is still practiced in terrace gardens built on the slopes of the mesa, below the village. The remainder of the 1882 reservation is the JUA, although the latter term did not come into use until many years after the creation of the special Hopi grazing district (a/k/a/ District 6).

Subsequent lobbying by the Hopi Tribal Council resulted in the Congressional legislation in 1958 creating a special three-judge federal court to handle a Hopi-Navajo lawsuit over the land within the boundaries of the 1882 reservation and permitting the bringing of such a suite. The Hopi Tribal Council immediately filed the law-suit claiming all of the land within the 1882 reservation. The specially created court ruled, in 1963, that District 6 belonged exclusively to the Hopi and that

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the balance of the 1882 reservation (i.e. the JUA) was jointly and equally owned by the Hopi and Navojo. After an 11-year effort by the Hopi and Navajo Tribal Councils to agree upon a plan for the joint use or division of the JUA, Congress enacted another law which provided for” the appointment of a mediator to divide the JUA. Unable to obtain agreement between the Hopi and Navajo Tribal Councils, the mediator submitted a proposed partitioning to the special court which entered a judgement of partition accordingly in February 1977. Approximately 6,000 Navajo (Diné) live in what is now the Hopi half of the former JUA and about 70 Hopi families live in what is now exclusively Navajo territory. Under half to leave soon (recent federal legislation requires relocation by mid-1981).

The traditional Diné assert that there is no dispute between themselves and the tradional Hopi, but they are both the victims of their respective, ‘progressive’ Tribal Councils. The traditional Hopi who have testified before the Russell Tribunal, support this claim without qualification. Thus far, it appears that the relocation problem results from an unwillingness on the part of the two Tribal Councils to find a solution which would preserve a large community of self-sufficient traditional Indian people-perhaps the largest such community in the United States. What, then, is at the root of what the courts have called “the long and bitter conflict between the Hopi and the Navajo”?

The answer appears to reside in the existence of an enormous deposit of low-suflar coal which is to be found just beneath the surface of the former JUA. Since it would be virtually impossible to obtain the removal of the traditionals from this area of especially sacred Indian sites for the purpose of strip mining coal, only the compelling force of a federal court order would suffice. Although Congress has the institutional power to force the removal, without the assistance of a court order that requires implementation, such legislation would entail the abrogation of one or more Indian Treaties and would meet with extensive resistence; the judicial process, while officially open to the public, operates in a much more private environment and, unlike the members of Congress, the members of the federal judiciary have life tenured.

The evidence shows that the coal motive theory is not mere speculation. For some years now, the Peabody Coal Company, one of whose attorneys was also the attorney for the Hopi Tribal Council, has been operating the largest coal strip mine to be found in Indian land at a place known as Black Mesa, located 30 miles north of the Big Mountain community, pursuant to contracts with the Hopi and Navajo Tribal Councils. The coal formation witliin Black Mesa is part and parcel of the coal formation which lies just below the surface of the former JUA. The former will be exhausted in 20 to 30 years and the latter is easily accessible—if the people are not in the way.

At the present time, the United States government is preparing th surface of the Hopi half of the former JUA for use as a cattle grazing area. One must wonder whether the cattle-

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raising members of the Hopi Tribal Council will seek to take advantage of the opportunity to vastly increase the size of their personally-owned (not communally-owned) herds. And, one most also wonder whether these same members of the tribal Council will, in time, show sufficient respect for the land when the Peabody Coal Company want to strip mine coal in the area that once was the home of 6,000 traditional pastoral Diné.

Violations of international law

We, members of the fourth Russel Tribunal find that:

The evidence shows that the actions of the accused violate Article II (c) and (e) of the Convention on the Prevention and Punishment of the Crime of Genocide, and therefore constitute the crime of genocide.

Partition of the land and relocation of Navajo and Hopi people violate the right of those people to live on their land and their right to be free from attacks on their territorial integrity. Those rights are protected by:

Articles 21 (2) and 22(5) of the American Convention on Human Rights

Article 17(2) of the Universal Declaration of the Human Rights

Principles I, II, III and V of the Helsinki Final Act

Paragraph 6 of the Declaration on the Granting of Independence to Colonial Countries and Peoples

Interference with the religious ceremonies and sacred sites of the Big Mountain People violate rights protected by:

Article 18 of the Universal Declaration of Human Rights

Article 12 of the American Convention on Human Rights

Principle 7 of the Helsinki Final Act

Article 18 of the International Convenant on Civil and Political Rights

The Use of Big Mountain land for energy development against the will of the Big Mountain People violates the right to control economic development and disposition of ressources which are protected by:

Article I of the International Covenant on Economic Social and Cultural Rights

Article I of the International Covenant on Civil and Political Rights

Principle I of the Helsinki Final Act

Paragraph I of the General Assembly Resolution 1803 (XXII) Concerning Permanent Sovereignity Over Natural Resources

Paragraph 2 of the Declaration on the Granting of Independence to Colonial Countries and Peoples.

ACCUSER: Traditional Western Shoshone Indians organized as the Western Shoshone Sacred Lands Association

ACCUSED: The United States of America

LOCATION: State of Nevada, U.S.A.

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SUMMARY OF EVIDENCE

On October 1, 1863, a Treaty of Peace and Friendship, known as the Treaty of Ruby Valley, was concluded between sovereigns, the United States of America and the Western Bands of the Shoshonee (SIC) Nation of lndians. The Treaty defined “their country” (i.e. Western Shoshone country) of approximately 24 million acres in what was then the Territory of Nevada. The Treaty was ratified by Congress in 1868 and continues in full force and effect.

The Treaty allows the following intrusions into Western Shoshone country: rights-of-way for railroads, highways, and telegraph lines and military posts along these rights-of-way; as well as exploration for minerals, operation of mines and the formation of agricultural settlements. White settlement within Western Shoshone country has reduced the Shoshone territory to approximately 18 million acres.

At the present time, the Western Shoshene Indians right to occupy, enjoy and control the remaining 18 million acres, by which they are able to exist independently from industrialized America, is threatened by two sets of circumstances which are unrelated in all respects except one: the role of the United States government. Simultaneously, the claim before the Indian Claims Commission has operated to extinguish their aboriginal title to the entire 18 million acres and the possibility that the proposed MX nuclear missile system will be located in Nevada in such a way that a substantial portion will be located in Western Shoshone country.

The Indian Claims Commission matter began in 1947. In that year the United States Bureau of Indian Affairs (BIA), organized a meeting for Western Shoshone people, at which the BIA encouraged the bringing of a claim before the Indian Claims Commission. An attorney with expertise in Indian claims matters, acting in the name and upon the authority of certain committees (e.g. the “Western Shoshone Indentifiable Group” and the Western Shoshone Claims Committee”) formed by individuals who were not authorized to act on behalf of the Western Shoshone Indians, filed a claim with the Indian Claims Commission. At no time was it the intention of the Shoshone people to surrender their aboriginal title in exchange for monetary compensation. Initially those who were· informed about the proceedings were told that an attempt was being made to seek compensation for land previously lost to white settlement. In fact, the claims attorney was prosecuting a claim for the loss of all of the aboriginal lands and entered into a stipulation with the United States Government that all of the land had succumed to encroachment by white settlers as of 1872, when, in fact only a quarter of the Treaty lands had been lost to white settlement. (lt should be noted at this point that the legal fee to be collected by such claims attorneys is awarded after the dollar amount of the judgment is the principal, if not the only, factor in calculating the attorneys fee.) By 1959, white the claim was still pending, some of the Western Shoshone began to question the claims attorney and his legitimacy. This movement was undoubtedly encouraged by the fact that all United States officials, with whom the Western Shoshone had to deal on a variety of matters, spoke in terms there being no aboriginal land over which they retained any dominion and control. An effort to hire another attorney was not successful because permission for such action had to

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be approved by the United States Department of the Interior which refused to give its permission. Finally, in 1974, a number of Western Shoshone formed an organization, the Western Shoshone Sacred Lands Association, which hired its own legal counsel. Subsequent efforts before the Indian Claims Commission, the United States Court of Claims or the United States Supreme Court, to stop the proceedings before the Indian Claims Commission or, in the alternative, to reduce the scope of the claim (in order to insulate the unencroached upon land from loss of aboriginal title) were without success, generally on the grounds that once a given position is asserted, it must be the position of the claimant forever. Neither the Indian Claims Commission, nor any of the federal courts, ever conducted proceedings to examine the question of the propriety of the conduct of the original claims attorney or whether he was properly authorized to act at all. In August 1977, the Indian Claims Commission rendered a judgment in favor of the Western Shoshone in the amount of 24 million dollars (based on a supposed taking of the land in 1872, pursuant to the original claims attorney’s stipulation) at a time when the market value of the land in question was more than 3 billion dollars. On December 6, 1979, the judgment of the Indian Claims Commission became final and it is the position of the United States Department of Justice that the rendering of this judgment extinguished all land rights of the Western Shoshone Nation.

The proposed MX nuclear missile system, if build, would be the largest construction projet in the history of the world, overshadowing the building of either the Panama Canal, the Alaska pipeline or the entire United States lnterstate Highway System. It would also use virtually all of the water to be found in the area, thereby converting a living desert into an uninhabitable wasteland.

Violations of International Law

We the members of the Fourth Russell Tribunal find that:

1. The declaratiuns of the United States counts that the aboriginal land rights of the Western Shoshones have been extinguished even though they have never agreed to give up those lands violates their right to own property, which is protected by:

—Articles 17(1) and (2) of the Universal Declaration of Human Rights

—Articles 21(1) and (2) of the American Convention on Human Rights

—Article 5(d)(v) of the International Convention on Elimination of All Forms of Racial Discrimination

2. The failure of the United States to respect the Treaty of Ruby Valley, which guarantees the Western Shoshones their aboriginal lands, is contrary to:

—Principle X of the Helsinki Final Act

3. Use of Western Shoshone land for energy development against the will of the Western Shoshone people violates their right to control their natural resources and economic development, which is protected by:

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—Article I of the International Covenant on Civil and Political Rights

—Article I of the International Covenant on Economic, Social and Cultural Rights

—Principle I of the Helsinki Final Act

—Paragraph I of General Assembly Resolution 1803 (XXII) Concerning Permanent Sovereignty Over Natural Resources

—Paragraph 2 of the Declaration on the Granting of Independence to Colonial Countries and People

4. The right of the Western Shoshone people to a fair and neutraI tribunal for determination of their rights is protected by:

—Article 10 of the Universal Declaration of Human Rights

—Article 8 of the American Convention on Human Rights.

THE GUATEMALA CASE

ACCUSER: The peasant communities of Chajul, Nebaj, Cotzal and San Miguel Uspantán (the Indians who live in this region belong to the Quichés and Ixiles)

ACCUSED: The government of Guatemala

LOCATION: Department of ‘El Quiché’ in the north of Guatemala

SUMMARY OF EVIDENCE

The Indians of El Quiché and Ixiles are basically peasants. They mainly cultivate corn and beans, but the production is not sufficient to support them, and for that reason they are obliged to work on the plantations of the big landowners.

In general, their situation is one of great misery. The exploitation and discrimination of the Indians of El Quiché bas been increased tremendously after the decision of the government to execute a project of the ‘Franja Transversal del Norte’ which includes the biggest oil complex of Central America and in which operate multinationals like Emibal, Shenandoak, Getty Oil, Texaco, Hispanoil and Petromaya. This shows the present potential economic importance of the area of El Quiché.

In 1976 the army of Guatemala occupied El Quiché with the intention of clearing the area in order to facilitate and to insure the economic operations, functionaries and landowners who export agricultural products and who have connections with foreign capital.

The army was unleashed an intense wave of abuse and terror without respect for the wellbeing and elimentary rights of the Indians of El Quiché; they oppress them violently by means of threats, kidnapping, torture, assassination, raping defenseless women, intrusion into premises etc., which are impossible to endure.

In addition, all of the soldiers hinder the people in the practice of their religions rites, because they occupy their temples and sell and abuse in public the images worshipped by the Indians.

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These facts have been kept secret by means of censorship and control of the massmedia, with the intention of maintaining this unjust pattern of abuse.

Because they have never received any response to their persistent and legitimate complaints, the Indians of El Quiché decided to occupy the Spanish embassy in the city of Guatemala, using this as a means to attract attention and to find a solution for their great problems. This occurred in a peaceful way on January 31, 1980, with the help of representatives of other institutions.

In spite of the sympathetic attitude of the Spanish ambassador, the government of Guatemala ordered the clearing of this diplomatic office, and bombed the place brutally with incendiary bombs and fired at the occupants. This caused the death of the staff of the embassy, of two ex-officials of the government, of six members of other solidarity organizations and of the 21 Indians of the villages of Ixil, Quiché, Kakchiguel and Achi.

The ambassador and the Indian Gregorio Yuja survived the massacre. The latter was kidnapped on the same day and his body was found in front of the university of San Carlos, shot in the temple. On his body was a note which said: ‘The ambassador of Spain runs the same risk’.

Conclusions:

The ‘case of the Spanish embassy’ has to be understood within the national context of Guatemala. ln the same way the problem of the Indians of Quiché cannot be treated only as an oppression of their culture. This is an expression of a variety of forces that continues its persistant struggle to acquire the rights which have been ignored by a civil/military oppressive minority which holds power illegally. The abuses committed against the Indians of El Quiché show an absolute contempt for the primary rights of every human of Guatemala, which the government is obliged to fulfill and to make fulfilled. With the help of the army, the government promotes the plundering of the lands that are the primary and vital means of subsistence for the Indians of El Quiché, a matter that causes a natural reaction of protest, which in turn generates the implementation of terrorist action of the state that serves to subdue the Indians who are fighting an unequal fight, defending their own culture, as well as their right to survive.

Tortures, sexual violation, intrusion of premises, threats, death of peasants constitute the evidence of the existence of a society which in itself is conflictive and where the oppressive government does not represent the interests of the majority, which are Indians, but on the contrary by means of institutionalized terror practiced by the army, it maintains itself to favor economic interests which do not benefit the people of Guatemala.

Because of the evidence presented, the jury considers that the government of Romeo Lucas Garcia is committing genocidal acts against the native people of Guatemala and has been guilty of consistent denial of the basic human rights to the said Indian people, and we call upon appropriate international organs to apply sanctions against this despotic government.

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Therefore we, the members of the Fourth Russell Tribunal, find that the government of Guatemala has violated and keeps violating the constitution of the republic of Guatemala, decreed by the constitutional assembly on the I 5th of September, 1965.

CASE OF THE GUA YMI PEOPLE OF PANAMA

ACCUSER: The Congress of the Guaymi People (Panama)

ACCUSED: National and Multinational Enterprises (CODEMIN) and the Government of Panama

LOCATION: The Provinces of Bocas del Toro, Chiriqui and Veraguas in the western part of the Republic of Panama.

SUMMARY OF EVIDENCE

The Guaymi People live together in small family communities, using the agricultural method of itinerant cultivation (‘roxe y quema’). They are the largest Indian group in Panama and consist of more than 60,000 persons distributed over the provinces of Bocas del Toro, Chiriqui and Veraguas. They make extra income by working temporarily on the banana plantations of the United Fruit Company. Among the Guaymi People there is a high percentage of tubercolusis, malnutrition, infant mortality and illiteracy.

The Guaymi Indians, for the most part have conserved their culture and their own language, ‘murine’. The majority is bilingual, speaking Spanish or Nganubere or English as well. In 1971, large copper deposits were discovered in the Cerro Colorado, which is the territory of the Guaymi lndians, and in 1975 the multinational Texasgulf in association with the Mining Development Corporation of Cerro Colorado, a state enterprise, was given permission by the government to exploit the copper in the area with. a government investment of two thousand million dollars. The exploitation of their copper veins is linked with the construction of a hydroelectric plant that will effect the communities of Teribe and Changuinola and Bocas del Toro.

As a consequence of these two projects, more than 740 square kilometers will be turned over to the Empresa de Cabre Cerro Colorado, within the territory of the Guaymi People and the waterreservoir will flood great areas of useful lands. Besides this 25,000 hectares will be made into protected forests, to guarantee sufficient availability of water.

Moreover, some 25,000 hectares will be turned into a natural park which will aggravate the situation of the indigenous people who cultivate half of the said area. All this means that the hydro-electric project and the exploitation of the Certo Colorado copper mine will dispossess the Guaymi of their traditional homelands. And it will also mean the deliberate neglect of their right to decide on their own· survival and participate in. the economic exploitation of their natural resources. Apart from that, they are also threatened with an irreparairable and immediate incorporation into the dominant culture. This will lead to destruction of their traditional way of life.

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Conclusion:

In this question the so-called public interest has been given priority over the rights of the Indians. It illustrates the ethnocide which is used on native peoples of America, and denies them the right to decide for themselves how to survive as a culture and social organization.

This is in violation of contitutional law and laws of conduct; which nationality and internationally recognize and protect human rights and the right of people to choose their own leaders, however without much practical effect.

As a consequence, the Guaymi People face the danger of disappearing. Besides, this case illustrates of how the environment is destroyed by unilateral decisions by the government, which has not studied the alternatives for the survival of the Guaymi People. The concession for hydro-electric and mining purposes of agricultural land that provides the means of subsistence for a population of approximately 60,000 impairs the rights of landownership of the indigenous people of Panama. It is an ill-considered and authoritarian government decision and an act of discrimination which disregards articles 17 and 19 of the Constitution. These articles guarantee that the life, honour and property of the people of Panama are protected without any discrimination as to race, social class, sex, religion or political ideas.

The norms of conduct laid down in articles 83, 85 and 102 of said constitution are also violated. These articles command the study and diffusion of the aboriginal languages, respect for the ethnical identity and the development of material, social and spiritual values of the indigenous communities and the development of educational programs for them.

The concession of land to joint-ventures without any attempt to endure that the Guaymi Indians will be able to continue using this land for their subsistance, also violates article 115.l and 116 of their law. Under this law the state is obliged to provide the farmers with land and to regulate the use of waters, as well as to guarantee the land reserve that is needed for their well-being.

Therefore, we, members of the Fourth Russell Tribunal, declare that the government of Panama violates the following international rights, because it is facilitating the execution of mining and hydro-electric projects, by national and transnational enterprises, without recognizing the rights of the Guaymi Indians to their lands:

—article 1, 12(1), 26 and 27 of the International Covenant on Civil and Political Rights

—article 5d(I), (V), (VII)

—article 12 of the ILO-Convention no. 107

—article 17, 22, 27(1) of the Universal Declaration on Human Rights

—article IIc of the Convention on the Prevention and Punishment of the Crime of Genocide

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—Resolution 1803 about Permanent Sovereignty over Natural Resources.

THE CRIC CASE

ACCUSER: CRIC, regional Council of the Indians of Cauca.

ACCUSED: The government of the republic of Colombia and the following governmental institutions: Home office, Degence Department, Colombian Institute of the “Reforma Agraria”, the Institute of natural resources.

LOCATION: Indigenous resquardo of Puracé, department of Cauca, Colombie.

SUMMARY OF EVIDENCE

The accusers presented sufficient documentation to demonstrate the legal validity of the titles of Puracé which are possessed by the community of the same name. They demonstrated that the INCORA created a national park of 3413 hectares, belonging to the community, for which the Indians did not receive any compensation nor were they recompensed for the improvements they had made by their own labour. The park was designed for tourists and the Indians were forbidden to make use of it.

In spite of the fact that there is land available in the surrounding area and that the INCORA bas the power to appropriate land for the benefit of the community; and in spite of the fact that there were official judgements in favour of so using this land five years ago, the Colombian government bas not done anything to implement such measures.

The Columbian government made consessions to the company Industrias Puracé, a branch of the multinational Celanese, for the exploitation and exploration of sulphur on the lands of the community. The community of Puracé did not receive either compensation or participation in the profits of this enterprise.

On the contrary, the exploitation of sulphur sterilized about 1000 hectares of land of the CRIC and polluted the atmosphere, which seriously damaged the economical well-being and the physical health of the inhabitants. “Industrias Puracé” did not fulfill the conventions signed with the Colombian government, the trade union and CRIC: it did not pay any compensations for the damage caused; it did not respect its promises to retain the striking workers and it did not impliment safety measures in the work places as had furthermore been agreed.

The Colombian government did not fulfill the collective convention signed with the trade union in 1976. In February 1977 two policemen shot Justiano Lame, an inhabitant of Puracé, who dies because of loss of blood when they made him walk five km. The police hid the Body and prevented by force a demonstration of protest organized by the CRIC. The murder of Justiano Lame is one of at least 45 murders of Indian leaders which have taken part in the Cauca department since 1971. The repression by gouvernamental forces includes arbitrary imprisonment, the invasion of private houses, military larassment, violent dispersion of legal public meetings and the destruction of plantations and other property.

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The proven actions of this case show that the Columbian government has interfered in the lives of the community of Puracé by reducing the amount of land belonging to it and forcing the community to limits that are under the minimal necessities set by the government. This restriction on the grounds, which form the basic recources for the life of the community, has been made for the benefit of interests that are alien to the Indian community: so it is impossible for the community of Puracé to develop in a normal way their social life, and their own existence as a community is seriously threatened. The imposition of economic activities planned and controlled by interests alien to the community, as for example the enterprise “Industrias Puracé”, has introduced new forms of exploitation of Indian work. The enterprice did not grant the security to the labourers nor respected the minimunrights foreseen by the Colombian legislation. The government did not only allowed this illegal situation but has also acted, like in this case, in favour of the interests of the enterprices against the local labourers. So the government itself has hindered the rights of the labourers, guaranteed by the Constitution.

The government of Columbia repressed, with violence, the community of Puracé when it asked for the solution of their problems and for respecting their rights. The represion ended in the proven murder of Justiniao Lame. Over the years the community has lived a continuing persucution which obstructs the normal development of their daily lives and the execution of their culture. The represion has inpede many members of the community to assist in activities in it, by putting them in jail by persecuting and wounding them.

The case of Puracé is a representaive of the situation that exists in the other communities of Cauca. This situation is the result of the politics of the Columbian government that seeks the “deindianization” of the communities by means of forced integration. They deny the communities the right to organize themselves and to live in accordance with their own culture and to decide their own destiny. To reach these aims, the Colombian government has imposed illegal measures and has made use of direct violence by means of their repressive institutions.

We, the members of the IVth RUSSEL TRIBUNAL find that in this case the following national and international laws have been violated.

Violation of international laws.

In this case the following international laws have been violated:

—Treaty about prevention and punishment of genocide, subscribed by Colombia in 1959.

—Convention 107 of the international Labour Organisation as regards to the protection and integration of the Indian people and the ethnic minorities and independent nations (art. 10 and 11).

—International pact of civil and political rights (art. 9, 14 and 17).

—The interamerican convention concerning the human rights (art. 7, 8, and 11 ).

—International convention about the economic, social and cultural rights (art. 7, and 9).

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Violation of national laws.

In the case of the national park law no. 2 from 1959 and the art. 30 of the Constitution has been violated.

—Concerning the spoiling of the land, law no. 135 from 1961 (Law of the “Reforma Agraria” art. 1, 58 and 94) and the decree 1576 from 1974 and the law 31 from 1976 (art.-14) have been violated.

—In general law 89 from 1890 has been violated.

—In the case of the mine, law 85 from 1945, law 20 from 1969, art. 16 of the Constitution, the lawsuit Procedure Code and the art. 16 of the Constitution have been violated

—The acts of repression have violated the Colombian Code of Penal Law (art. 417, 430 and others).

ACCUSER: The peasant community of San Juan de Ondores and National Committee of the Human Rights (Conadeh), Lima.

THE ACCUSED: The Civil Guard of Peru and the Ministry of Agriculture as organs of the government of Peru and the agricultural society of Social Interest Tupac Amaru.

LOCATION: District of Ondores, province of Junin, department of Junin. Andean region of the centre of Peru.

SUMMARY OF EVIDENCE

The rural community of Ondores, long ago deprived of their lands, initiated in 1958 a legal case to obtain restitution from the “fundo Atocsayco” of 14,500 hectares, which at that time was in the hands of the North American enterprise “Cerro de Pasco Corporation”. While the process followed its legal course, this “fundo” was expropriated for the Reforma Agraria of 1968, but the community obtained a favourable judgement from the Agrarian Tribunal which is the highest juridical authority. This judgement was issued in September 1970.

The farm Atocsayco was assigned to a third party (the SAIS Tupac Amaru)—after the decision of the first court and before the ruling of the Agrarian Tribunal, the fact that the constitution and laws forbide the sale of community land, the Ministry of Agriculture obtained the consent of the community representatives to a low valvation “for the fundo” Atocsayco.

The local magistrate attempted to enforce the decision of the Agrarian Tribunal by restoring the “fundo” to the community of San Juan de Ondores. The Agrarian Tribunal then overruled this transfer and contradicted its earlier decision by giving over the land to SAIS instead. This transfer was made brutally on December 18, 1979, with the intervention of a detachment of about 200 civil guards who caused the death of two Indian peasants (Gelacio Osorio and Claudio Castillo), and also the destruction of bouses and the disappearance of personal goods and cattle. Many Indians were wounded and 40 peasants were arrested. The juridical authorities refused to bring prosecutions for the crimes committed by the civil guards who acted in complicity with the SAIS Tupac Amaru.

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On August 2, 1980, trusting the word of the constitutional government recently installed, the community of San Juan de Ondores once again occupied the fundo Atocsayco. A new eviction was carried out contrary to the written order of the vice minister of interior. The peasants were attacked once again and left behind them wounded people; their houses were occupied and plundered.

Conclusion

This case shows the efforts of the Indian peasants (los campesinos) of the Sierra del Peru to regain their rights to occupy their lands, usurpated in the past. At this moment the peasants are subjected to a systematic repression by the Land Reform Act, such as the agricultural cooperatives for social interest (Sociedades Agriculas de Interés Social), which are of a total alien structure in regards to the social and communal organisation of the Indian peasant.

Very clearly is shown the existing conflict between the government of Peru and the farming Indians, discriminated against and deprived of their rights to make use of their environment as they always have done since the Spanish conquest.

The peasants generally have little or no opportunity to express their problems nor to solve them. Like in San Juan de Ondores, justice is contradictory and doesd not suppot the demands and rights of the peasants. That is why they organize themselves to try to confront the government, that oppresses them by protecting ,their own interesses. In these conditions, the Fourth Russell Tribunal supports the organization of meetings and other events or indigenous people and peasants, who, without any earlier intervention of the state and in an autonomous way, try to find alternative solutions for their problems. The First Congress of Quechua and Aymara nationalities that took place in Cuzco autumn 1979, is a good example of this and therefore, we, members of the Fourth Russell Tribunal, find that the following national and international laws have been violated:

—art. 163 of the Political Constitution of Peru

—art. 121 and art. 154 of the “Reforma Agraria nr. 11716”;

—International Covenant on Civil and Political Rights, art. 6(1), 9, 12 (1, 4), 14, 26, 27.

-International Convention on Elimination of All Forms of Racial Discrimination, art. 2 and 5 (a, b, c, d (v))

-Universal Declaration on Human Rights, art. 1, 3, 5, 9, 17, 22.

—International Covenant on Economic, Social and Cultural Rights, art. I and 2.

At the same time big lumbering companies are forcing through the Indian Territory. The intrusion on campa land is a threat to their own cultural survival. They are constantly forced to move to areas which are not their traditional habitat. The communal way of life is being distorted, and they experience a climate of psychological disturbence which will lead to violence. The colonists defend their status as possesor by force. This case is the cause of a conflict between the Campa and the

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colonists. A remedy to this situation would be existing legislation which garuantees the ownership of the land to the Campa. The construction of roads andf the dam can only be acceptable in conjonction with government garuantees that the remaining land would be owned in perpetuity by the Campa. By permitting the prosecution of this situation, the national legislation of Peru, is openly violated. Especially the law protecting the Indian territories and natural recources. The following norms have been violated:

—The political Constitution of Peru, article 163, garuantees perpertual ownership of the lands of the native communities. The article 35 of the decree 21147 regulates the lunbering in the native territories.

—The articles 10 and 12 of the degree 2217 5, of the la w on the native Communities and the Agararian Development of the Area of Selva and Ceja de Selva.

—The articles 2 and 2 of the International Convention of the Economic, Socila and Cultural rights.

—The articles 1, 2 clause I and 2, 12 clause 1, 14, 26 and 27 of the International Convention on civil and political rights.

—The articles 17, 22, 25, 26 and 27, clause I of the Universal Delcaration of Human rights.

—The article 12 of the Convention concerning the protection and intergration od Indians and other tribal and semi-tribal populations and independent countries, consitute a disrespect and a violation of the principle of that law.

CASE OF THE RIO NEGRO

ACCUSER: Mario Souza.

ACCUSED: The Salesian order and its bishop Don Miguel E. Alagna.

LOCATION: Rio Negro and tributaries, Amazonia, Brasil.

SUMMARY OF THE EVIDENCE.

Illegal seizure and registration in the name of the Salesian mission of lands traditionally belonging to the Aruak and Tukana indians of the Rio Negro, which has resulted into the transformation of the number of nations occupying a vast territory with their own languages and cultures into a marginalized mass of landless peasants, subjected to the worst imaginable conditions of deprevation.

Radical loss of the tribal character of the indian peoples of the Rio Negro as a result of the intentional destruction of their social organization based on local exogamix clans, and by means of the desintegration of the traditional family through

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its dispersion in smaller units forced into a christian religious model.

Installment of an education system based on authority, which separates the children from their parents by placing them in boarding-school. With the argument that they should be given opportunities of progressive in the national society, the young people become unfit for life in their traditional environment and the young girls are desinated to domestic services or prostitution.

In this way the Salesian order obtains much help from the brasilian government and from international institutions of assistance to the Indians and this for maintaining an institution which is using the available means for its own interest, when these would be desinated to help and satisfy the needs of the indians of the Rio Negro.

Conclusions:

Violated international laws

Genocide, by the destruction of the physical bases of subsistance and survival of the indian peoples of the Rio Negro.

Ethnocide, by the systematic and continuous efforts to desintegratethe culture, to prohibit the habits, to persecute the traditions and to impede the use of the languages (Convention 107 of the ILO), Art. II; Universal Declaration on Human Rights, Article 12 and 13).

Violation of the principle of non-descrimination negating expressely and annulating in practice the rights of the indian peoples for reasons of race and by imporing a policy of integration which negates their possibilities of survival as nations. (International Convention against Discrimination; Universal Declaration of Human Rights).

Infringement of national legislation:

Constitution of the Brasilian federation, Article 198, Indian Statute by registering in name of the Salesian order lands belonging to the Indians and by acting in an ethnocidical way.

MANGUEIRINHA CASE

ACCUSER: Wilmar Rocha d’Angelis, coordinator of CIMI-South (Missionary Indian Council, south area)

ACCUSED: Funai (lndian National Foundation), Slaviero & Sons, S.A.; Electrosal; government of the State of Paraná, Brazil

LOCATION: Mangueirinha Indian Post, Paraná, Brazil.

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SUMMARY OF EVIDENCE

By means of an illegal and unconstitutional treaty signed on May 12, 1949 by the government of the State of Paraná and the Federal Government, the Kaingang and Mbya-guarani tribes of the Mangueirinha Indian Post were dispossessed of 8,975 hectares of land; that is to say, half of their territory.

Subsequently the terms of this treaty were not respected either: the land promised for a reservation was not given to the Indians nor to settlers, but was made over to private companies. Today it is in the bands of the company Stavieiro & Sons, L.C. who attempt to clear away between 120 and 170 thousands Ara caria Brasiliensis trees which produces the nut which is the stople food of the Kaingang and the Guaranies Indians.

The Funai established a sawmill in Manguereinha which is also felling araucaria brasiliensis trees. The profits obtained from the sawmill ware going, illegally, to the officers of the Funai. A unique forest reservation, that constitutes the traditional means of life for the Kaingang: and the Guaranies, is threatened thus with extingtion. Another part of the reservation territory was flooded by the dam which was built to feed the hydro electric plant of the Electrosul Company. In the near future, another hydro electric plant will be built nearby, which will mean a further upheaval of the Guaranies and Kaingangs way of life. There are laws, which would permit the restitution of Kaingangs’ and Guaranies’ land.

However a claim made in this case has received a negative ruling and is now in the Higher Tribunal of Claims. The situation in the Indian post is more and more tense. The murder of one chief, Angelo Cretâ, in obscure circumstances is aggraving the conflict.

CONCLUSIONS

The Mangueirinha case exemplifies the conditions and problems currently faced by the Indian populations of Brazil. The evidence shows that only that bureaucrats and private individuals with capital, and not the Indians, benefit from the exploitation of Indian land resources.

Instead, this exploitation seriously threatens the survival of those Indians whose land is employed in money-making enterprises.

The Brazilian government, ignoring the fact that Indian people enjoy a distinct lifestyle and culture, that suffers from modern development of the land or its resources, has embarked upon a systematic program of dimishing the Indian land base for the benefit of monetary profit-seekers.

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The Brazilian Indian people are unable to obtain any relief from the judicial system, like the executive branch of the Brazilian government, has relegated the Indian people to a rapidly approaching annihilation.

The foregoing demonstrate a systematic genocidal and ethnocidal program.

The folowing Brazilian laws have been violated:

—Art. 216 of the Constitution of the federative Republic of Brazil of 18/09/’46

—Art. 198 of the same constitution, constitutional amendment nr. 1/17/10/69.

The following articles of the Indian Statute:

—Art. 2, paragraph 3 & 4

Art. 18 par. 1; Art. 22 unique parag.; art. 23; art. 24, parag. 1 and art: 47.

Therefore, we, members of the IV Russell Tribunal, find that the government of Brazil violates and goes on violating:

—Art. 216 of the Constitution of the Federative Republic of Brazil of 18/9/’46

Art. 198 of the same Constitution, constitutional amendment nr. 1/17/10/69.

—Art. 2, par. 3 and 4

—Art. 18, par. 1; art. 22; art. 23; art. 24, par. I and art. 47 of the Indian Statute, nr. 6001

and also:

—Art. II-c of the Convention on Prevention and Punishment of the Crime of Genocide

—Art. 11 and 12 of the ILO-Convention no. 107

—Art. 2 and 5 of the Int. Convention on the Elimination of All Forms of Racial Discrimination

—Resolution 1803 about the Permanent Sovereignty over Natural Resources

—Art. 17(1) and 22 of the Universal Declaration of Human Rights.

ACCUSER: Vincent Carelli (on behalf of the Committee for the defence of the Nambiquara People).

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ACCUSED: The Government of Brazil (the Dept. of Home Affairs, FUNAI, the State of Mato Grosso, the Dept. of Transport, etc.), the World Bank.

LOCATION: Yale do Guaporé, NE of Mato Grosso State and State of Rondon Territory. 190 of the remaining 600 (530) Nambiquara. These are the forest Nambiquara.

SUMMARY OF EVIDENCE

The systematic dispossession of the Nambiquara people of their land and the deliberate intrusion into their land with a major new road in order to speed this process were described. Specifically, the actions of the following were indicated:

—The Brazilian Government, through the agency of the Department of Interior and FUNAI (Brazilian Agency for Indian Affairs), consistently and illegally encourages settlement of land occupied by Indians and fails to protect the interests of the Indians.

—FUNAI, issues negative Certificates falsely denying the existence of Indians on the land and authorizing private companies to take advantage of the highly favourable tax incentives to start agricultural projects on such land.

—The State of Mato Grosso, illegally sells Indian land.

—FUNAI, forcibly translocating Indians from fertile land to poor and unfamiliar land in Reserves.

—The Brazilian Government, promoting the destruction of the environment and endangering the lives of the inhabitants through inappropriate development and the irresponsible use of dangerous herbicides (e.g. Agent Orange) banned elsewhere.

—Agricultural Companies, preventing Indians from cultivating their own land.

—FUNAI, failing to provide proper health care to Indians.

—FUNAI, deliberately neglecting to demarcate the Nambiquara territory as they are required by law to do.

—The Brazilian Department of Transport, constructing highway BR 364, routing it unnecessarily through Indian land so as to promote the elimination of the Indians for the benefit of a few individuals and companies.

—The World Bank, participating in the BR 364 road project and financing it while fully aware of the dangers

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to the Indians; failing to use their influence sufficiently to ensure adequate protective measures for the Indians.

Conclusions:

The facts show a disinterested attitude on the part of the. Government of Brazil regarding the protection of the indigenous rights on the natural resources which exist on the territories the indigenous peoples occupy, promoting the completement of the process and ethnocide. The following standards therefore have been violated:

—the Constitution of the Federal Republic of Brazil and Amendment number one,

—the Statute of the Indian proclaimed by law 6001,

—the Treaty on the Prevention and the Punishment of the crime of ethnocide, article 2-c,

—the Convention on the Protection and Integration of the indigenous peoples and other tribal and semi-tribal peoples of independent countries, articles 11 and 12,

—the International Convention on the Elimination of all forms of Racial Discrimination, articles 2 and 5,

—the Universal Declaration on Human Rights, articles 17 and 22.

B. Other Cases and Situations

In addition to the cases selected by the organizing committee for full hearings there are a number of other significant and even grave cases or situations which merit comment. The time available to the Tribunal did not allow for full hearings on these matters, however, oral presentations and written documentation have been received.

It is absolutely clear that serious violations of human rights or ethnocide exist in many places, from the Arctic to Chile and Argentina. Taken together, these additional cases clearly indicate that the following violations are occurring:

(1) The seizure of Indian lands in violations of treaties, agreements, or international principles of justice involving the Shuar of ECUADOR; the Aché of PARAGUAY; the Mapuche of CHILE; the People of Colcabamba vicinity and the Province of Tayacaya in PERU, also in the Cochapata area of the Dept. of Cuzco and in the Dept. of Cerro de Pasco, in PERU; the Yanomami of Northern BRAZIL; the Waimiri of BRAZIL; the Kaingang and Guarani of Rio Grande do Sul, BRAZIL; many groups in the UNITED ST ATES including the Lakota (Sioux), the Klamath, the Pitt River Tribe, and the Nez Perce; the Mixe, the Purhepecha, and other groups in MEXICO, including the

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Papago of Northern Sonora and Huasteca of Hidalgo; and many other groups in CANADA including the partially unrecongized Metis and Cree people (non-status Indians).

(2) The appropnat10n of Native Resources (mineral, water, timber etc.) as if the Native People did not exist or possessed no right to lands possessed for centuries or even millenia, as in situations involving the Yanomami and Waimiri of BRAZIL, the Shuar of ECUADOR the community of Coris in PERU, the Lakota, Klamath, Pitt River Tribe and others in the UNITED ST ATES, many groups in CANADA, including especially the Cree, Dene, and Inuit peoples, and the Inuit of GREENLAND, The Kaingang of BRAZIL are also severely suffering from seizures of their forests by a timber company, aided by the government of Rio Grande do Sul.

(3) Uncontrolled Invasions of Indian Territories by NonIndians, in a manner clearly indicating genocidal or ethnocidal intentions on the part of governments which refuse to restrain the invaders, as in BRAZIL in the case of the Yanomami, Waimiri, Kaingang, Guarani, and other groups, in parts of Northern CANADA and the ARCTIC, in ECUADOR with the Shuar, in PARAGUAY with the Aché, in all parts of PERU, in MEXICO in the instances of the Papago and the Huasteca, and in other countries as well. In the case of the Waimiri the government of BRAZIL and its armed forces have led the invasion.

(4) Extreme Oppression as Near-Slaves, Peons, Kidnapped Domestic Servants, Cheap Labor etc., without normal recourse to basic legal protection as human beings, as in PERU and BOLIVIA with Indian females; as in Colcabamba and throughout most of PERU; in several areas of BRAZIL, including the enslavement of Amazonian Indians with Shuar of ECUADOR (under the control of missionaries as well as secular groups) in PARAGUAY with the sale of the Aché as slaves, and in many other areas.

(5) Violations of All Forms of Internal Self-Government and even of the Right of Local Community-Level Government, as in the cases of the Communities of Colcabamba and Tayacaya and elsewhere in PERU, of virtually all ‘Brazilian groups, of the Mapuche in CHILE, of native groups refused recognition as Indians in CANADA, the UNITED ST ATES, and elsewhere, and also with the Pitt River Tribe, the Lakota, the Puyallup and other nations in the UNITED ST A TES. This is a general problem in almost every country of the Americas.

Special mention should be made of the ‘termination’ policy of the USA; which asserts the ultimate right to totally eliminate native societies as governmental units.

(6) The General Refusal or Failure to Involve Native Nations in the Creations of Constitutions or Basic Instru-

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ments of Government in the States of the Americas, even in instances where the federal principle of government obtains, as in the current creation of a new constitution in CANADA where Indian rights are, at present, not being considered. As sovereign units of governance, Native Nations and Republics or Pueblos possess the inherent right of refusing any incorporation or of being authentically represented as a self-governing unit where their territory has been included in the area claimed by a state apparatus. In other words, a constitution and government cannot be imposed on Indian people without authentic participation and the right of refusal to be incorporated involuntarily is a precondition.

(7) The Denial of Fundamental Rights of Religious Freedom, the seizure and destruction of places of worship, and the granting of secular power and assistance to missionaries seeking the elimination of native spiritual life (a matter constituting total ethnocide in certain areas). We wish especially to refer to the unbelievable behaviour of the protestant missionary groups in ECUADOR (Shuar), PARAGUAY (Aché), and in VENEZUELA and eastern PERU, especially the New Tribes Mission and the Instituto Linguistico Verano (known as the Wycliffe Bible Translators and by other names).

Similarly the Catholic Salesian missionaries have obtained a degree of governmental authority which allows them to duplicate the coercive culture change of the notorious missions of an earlier epoch.

Forceful reference must also be made to the violations of native religion and seizure of sacred places in the UNITED STATES and CANADA, evident in many cases such as the Lakota and Cheyenne in the USA and to the appropriation of sacred places in MEXICO and other parts of Central and South America to be used only as public museums or tourist attractions, with little consideration of the religious or cultural sentiments of indigenous nationalities.

It is clear that this general problem is an issue throughout the Americas, and betrays a lack of essential respect for the humanity of Indian people.

(8) The Pervasive Existence of Racism or Euro-Ethnocentrism and its Impact upon the lives of Indian People, both in terms of the daily negation of the value of an lndian’s individual life and in terms of the ethnocidal impact of the media, systems of education textbooks, propaganda, and, in general, an almost total deluge of anti-Indian imagemaking. The Tribunal takes notice, not only of the specific testimony received, but of the many studies undertaken in various countries relative to the bias found in educational systems and to the general suppression of the use of Indian languages in many countries or provinces. The conscious denial of native languages and the negation of native culture and personality by the instruments of communication can only be seen as conscious ethnocide since it is common

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knowledge that such practices have a disastrous impact upon the negated peoples. Mention must also be made of the discriminatory administration of justice in many countries, and police brutality, based upon racism.

Finally, strong notice must be taken of the racist attitude of non-Indian Bolivian elites who have called for the settlement of South-African whites in order to alter the Indian character of the country. This plan is ethnocidal in intention.

(9) The Denial of Adequate Health Programs, the Denial of Basic Public Hygiene, and the Sterilization of Indian Women, together, constitute a direct genocidal attack upon the native populations since they lead to indefensibly high rates of infant mortality, low life expectancy (in the range of 45 years or less), and the denial of future generations.

Excessively high rates of infant mortality may be a function of poverty but we cannot excuse such, since both the poverty of Indian communities and the denial of public hygiene measures are both a result of governmental policy in almost every country.

Sterilization of Indian women without permission or request has been alleged against many countries, but has been fully documented and proven with respect to the United States by a report of the General Accounting office of the United States Congress.

(10) The Use of Torture, Extreme Forms of Repression, lmprisonment, and ‘Behavious Modification’ techniques to Maintain Systems of Oppression, as in BOLIVIA and CHILE generally, and PARAGUAY in relation to the Aché in particular, in the suppression of community organization in the Colcabamba area of PERU, in the harassment of Indians in the UNITED STATES including the imprisonment of such persons as Leonard Peltier, and in the armed intervention of outside authorities in the internal affairs of Indian nations or communities, as in the instance of the Oglala Sioux Nation (Pine Ridge Reservation) in the United States in 1973.

Special reference should be made of planned killings of the Waimiri in BRAZIL.

In BRAZIL also the well organized Kaingang and Juarani peoples have been experiencing threats upon their leadership, and even deaths, in order to halt their efforts to defend their lands. Similarly, the Huasteca of Hidalgo have experienced deaths in attempting to defend their lands.

Police brutality against Indians, as in areas of Oklahoma in the United States, as well as many other places, must be seen as part of the total system of terror used to keep Indians passive. In certain countries, such as Bolivia, such force and terror serves to prevent the effective political participation of much of the Indian masses.

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(11) The Denial of Native Rights and Recognition as Indians (or as Native Tribes or Nations) to certain groups of persons of Indian identity, as in the case of many tribes in the eastern United States, in the case of the so-called Metis and non-status Indians of Canada, and in the instance of ‘terminated’ and ‘landless’ Indians in the western United States.

In general, it is clear that many states of the Americas do not allow Native communities to define their own membership or to determine their appropriate ethnic identity. Certainly, the right of an ethnic community to define its own membership and identity is a basic right of all nationalities and a clear function of self-governance and self-determination. We are especially concerned, as in the instance of the Mashpee of Massachusetts, when landrights are negated by an assertion by outsiders that a historically continuous Indian community is no longer Indian enough to recover land, recognized to be illegally-seized.

Special mention must be made in relation to several instances where murders of Native People have occurred on a large scale or seem very likely to occur in. the immediate future. Evidence indicates that there is a widespread willingness on the part of certain American governments to totally liquidate, by physical force when necessary, any Indian group which might stand in the way of the extraction of resources, the opening of highways, or other projects planned by the government apparatus or by corporations.

We wish to especially note the continuous military assaults upon the Waimiri and Atroari nations in northern BRAZIL which, from 1968 to 197 5, resulted in a dramatic population decline (3,000 to 600-1,000). We must also make pointed reference to the enslavement, sale, and liquidation of the Aché people of PARAGUAY. Moreover, we must cite the situation of the Yanomami whose 10,000 or so people in BRAZIL face the high probability of genocide unless immediate protective action is taken by the Federal authorities of BRAZIL at the highest levels.

The Tribunal has also granted time to representatives of different aboriginal groups from other continents in order for them to explain their situation. The testimonies which have been presented during the week of the sessions showed how serious their situation really is. The Kurds have been arbitrarily dispersed into several countries where they are suffering from severe persecution and ethnocide; more than 150,000 Papuas have been assassinated since 1962 when the present Indonesian government took power; the Gypsies have been living in the Netherlands for more than a century· and still haven’t gained recognition of their right to choose their own lifestyle, nor do they have guarantees to stay permanently in this country; the Maori of New Zealand and the Aboriginees of Australia have lost great amounts of their land which has been taken away from them by force;

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and a representative of the people from Tahiti showed dangers created by atomic experiments in the surroundings of Tahiti which are being carried out by the French government.

The Tribunal wants to point out the dramatic present day character of the accusations received about violations of the rights of the Indian people of Bolivia, who make up the majority of the population of this country. The Movimiento lndio Tupaj Katari-MITKA and the Confederacion Sindical Unica de Trabajadores Campesinos de Bolivia have separately presented different accusations in form of Declarations which have been backed by documents and personal testimonies.

The Tribunal expresses its solidarity with Indian nationalities in Bolivia, who have been victims of a history of oppression which begins with the Spanish Conquist and culminates with the brutal dictatorship of Garcia Meza. The millions of Bolivian Indians who are still being treated like invaders in their own country, are suffering from the merciless exploitation of their workforce on the fields, in the mines and in the cities and they are victims of different forms of discrimination and cultural persecution. The killings which have taken place during the takeover of the government by general Garcia Meza as well as the tortures and all forms of state-terrorism implemented by the new dictatorship, are part of the last chapter of a very long history of oppression which will not end as long as the State continues to be only an armed rule of a dominant minority against the will of the majority.

IV. RECOMMENDATIONS

A. Governments

I.

The Indian peoples of the Americas must be recognized according to their own understanding of themselves, rather than being defined by the perception of the value-systems of alient dominant societies.

II.

The States of the Americas, in any dispute about the infringement or violation of the autonomous and cultural rights of the Indians people; to engage in good faith negotiation to seek a peaceful settlement of the dispute; and to refrain from taking recourse to any procedure, which is not mutually agreed upon.

III.

“Treaties and agreements made with indigenous nations or groups shall not be subject to unilateral abrogation. ln no event may municipal law of any state serve as a defence to the failure to adhere to and perform the terms of treaties and agreements made with indigenous nations or groups. Nor shall

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any state of refuse to recognize and adhere to treaties or other agreements due to changed circumstances where the change in circumstances has been substantially caused by the state asserting that such change has occurred.” (N.G.O. conference on discrimination against indigenous populations, Geneva, 1977).

IV.

States must prohibit all action or course of conduct with respect to an indigenous nation or group, or in relation to the territories of an indigenous nation or group, which will result in the destruction, desintegration or deterioration of such nation or group or otherwise threaten the national or cultural integrity of the nation or group.

V.

American States must immediately bring a halt to the gross and continuous violations of the rules and principles recognized under international law. States should implement measures to prevent further violations of the basic human rights and fundamental freedoms of the Indian peoples. Those existing national laws which forcefully assimilate indigenous peoples against their will and violate their basic rights defined by international standards should be annuled.

B.OTHER

I.

The fourth Russell Tribunal on the rights of Indians recommends that the above findings of the gross and continous violatons of Human Rights be transmitted to the Commission of Human Rights of the United Nations, to the Inter-American Commission on Human Rights and in the relevant cases to the International Labour Organisation, and other appropriate bodies.

II.

The international, multinational and intergovernemental Banks (Worldbank, Inter-american Bank of development), as well as the International Monetary Found must change their policy in order to avoid the extremly grave consequences caused by the abuse of financial development funds. Projects must be avoided which will cause serious harm to members of the indigenous Indian people. Before funding projects these banks must ascertain wether they are a party to these serious violations of Human Rights.

III.

A. All religious groups must recognize the sacred nature of land to Indian people in its necessity for their spiritual and physical survival.

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B. Until native groups are free to determine their own destiny, efforts of religious conversion should be halted in order to avoid becoming a party to ethnocide and the denial of religious freedom.

C. The Declarations of the Pope, made in Manaos, Brazil, giving full recognition to the nation-status of indigenous peoples, should be put to effect by the Roman Catholic church every where.

IV.

The ILO should be informed of the constant infringements of the rights of the indigenous peoples of the Americas to work (and for proper payment), to dispose freely of their means of subsistance, to associate-in whatever form they want-and to choose their representatives and leaders without them having to fear for the lives of their families and themselves.

V.

The commission of Human Rights is requested under ECOSOC- Resolution 1503 (XLVIII) to investigate the gross and continous violations of Human Rights, inflicted upon the indigenous peoples of the Americas. The ECOSOC and the International Court of Justice should provide remedies for the indigenous people, that are not provided for in courts of national states.

C.

I.

Members of the Organisation of the American States should press the O.A.S. to take immediate action to halt the practices of the governments of Bolivia and Guatemala. The organised massacres and the most flagrant and inhuman treatment of the indigenous people of Guatemala as reported by Amnesty International are fully supported by the evidence that · has been presented through the Tribunal.

II.

The Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Commission of Human Rights is requested to set up a permanent committee for the effective and continous protection of the rights of indigenous people. Indigenous people should have the right to communicate with this committee and a fund should be established to provide assistance to such groups for the purpose of these communications.

III.

Teachers and educators in the Americas are called upon to live up to their professional responsibilities to bring to an end

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the anti-Indian character of instruction in the schools attended by Indian children.

IV.

Sterilisation campaigns directed against the indigenous populations must stop. Agencies are to halt involuntary sterilisation.

V.

The high infant mortality rates found among native people should be corrected by ending enforced poverty and by the providing of the means for native people to have potable water and other basic essentials of public health.

VI.

All American States must ratify the American Convention on Human Rights.

IV. Final Statement

The Fourth Russell Tribunal is not a formal court of law and does not have the power to enforce its decisions. This weakness however at the same time constitutes its strength. Not being able to impose sanctions, it appeals to human conscience and human reason alone.

The Tribunal asserts its moral right to demand that governments and internatinal organizations comply with accepted norms relating to human rights in general as well as to the specific rights of the Native Peoples of the Americas. It also communicates factual information which can contribute to the radical improvement of the juridical means for the protection of these rights.

The Tribunal recognizes that the continuing struggle of the Indian Peoples of the Americas will be the indispensable condition for the achievement of these ends.

The Tribunal regrets that the governments and organizations accused have not responded to the invitation to provide a defence to the charges made. Their silence is eloquent.

The Tribunal wants to influence world-wide opinion and to destroy the widespread but false image of the Indians, created by racism and hostility. It wishes further to draw public attention to the extreme persecution suffered by the lndians and to the numerous violations of their rights. Moreover, it wishes to give emphasis to the heroic resistance of the Indians to continuous acts of humiliation, exploitation and agression.

The Tribunal hopes that its recommendations will be put into effect by the relevant governments and international organizations. Finally, we give voice to the hope that this work

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will constitute a real step forward in the endless struggle to realize human dignity.

MARIO JURUNA, chairman

GUILLERMO BONFIL BATALLA, vice-chairman

DOMITILA BARRIOS DE CHUNGARA

EDUARDO GALEANO

ROBERT JAULIN

ROBERT JUNGK

LOLLENAUTA

DARCY RIBEIRO

KARL SCHLESIER

ELLIOT TAIKEFF

STEFANO VARESE

THE JURY OF THE FOURTH RUSSELL TRIBUNAL ROTTERDAM, November 30th 1980

1. United Nations Charter, 1945

Article I (2)

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

Article 55

With a view to the creation of conditions of stability and well-being which are .necessary based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a) higher standards of living, full employment, and conditions of economic and social progress and development;

2. The Universal Declaration of Human Rights, 10 December 1948

Article 3

Everyone has the right to life, liberty and the security of person.

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Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent an impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each state.

2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 15

1. Everyone has the right to a nationality. Article 17

1. Everyone has the right to own property atone as well as in association with others.

2. No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion.

Article 19

Everyone has the right to freedom of opinion and expression.

Article 21

3. The will of people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be ·by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

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3. International Covenant on Economic, Social and Cultural Rights, 1966

Article 1

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.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligation arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a) Renumeration which provides all workers, as a minimum, with:

(i) Fair wages and equal renumeration for work of equal value without distinction of any kind, …

(b) Safe and healthy working conditions;

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade of his choice, …

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

4. International Covenant on Civil and Political Rights, 1966

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political

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status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistance.

Artile 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 6

1. Every human being bas the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentations.

Article 9

1. Everyone has the right ot liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

Article 14

1. All persons shall be equal before the courts and tribunals.

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Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in communication with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Article 26

All persons are equal before the law and entitled without any discriminations to the equal protection of the law. In this respects, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or sicial origin, property, birth or other status.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorites shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

5. Convention on the prevention and punishment of the crime of the genocide, 1948

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

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(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

6. International Convention on the Elimination of All Forms of Racial Discrimination, 1965

Article 1

1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose of effect of nullifying or impairing the recognition, enjoyment or exercise, on a equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, …

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Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the rights of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(iii) The right to nationality;

(v) The right to own property alone as well as in association with others;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedm of opinion and expression;

7. General Assembly Resolution 1803 (XVII) of 1962 on Permanent Sovereignty over Natural Resources

Chapter 1

Paragraph 1

The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people in the State concerned:

Paragraph 2

The exploration, development and disposition of such resources, as well ·as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities;

Paragraph 5

The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered by the mutual respect of States based on their sovereign equality;

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Paragraph 7

Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace;

8. Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960

Paragraph 1

The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

Paragraph 2

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Paragraph 6

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

9. American Convention on Human Rights, 1969

Article 7

1. Every person has the right to personal liberty and security.

Article 8

1. Every person has the right to hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal, or any other nature.

Article 12

1. Everyone has the right to freedom of conscience and of religion. This includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private.

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2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

Article 20

1. Every person has the right to a nationality.

3. No one shall be arbitrarily deprived of his nationality or of the rights to change it.

Article 21

1. Everyone has the right to the use and enjoyment of his property.

Article 22

5. No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.

10. Helsinki Final Act, 1975

Principle I

The participating States will respect each other’s sovereign equality and individuality as well as the rights inherent in and encompassed by its sovereignty, including in particular the right of every State to juridical equality, to territorial integrity and to freedom and political independence.

Principle VII

The participating States will respect human rights ·and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion.

The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.

Principle VIII

The participating States will respect equal rights of peoples and their right to self-determination, acting at all times in conformity with the purpose and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self-

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determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.

Principle X

The participating States will fullfil in good faith their obligations under international law, both those obligations arising from the generally recognized principles and rules of international law and those obligations arising from treaties or other agreements, in conformity with international law, to which they are parties.

11. Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in independent Countries, 1957 (ILO-Convention No. 107)

Article 7

1. In defining the rights and duties of the populations concerned regard shall be had to their customary laws.

2. These populations shall be allowed to retain their own customs and institutions where these are not incompatible with the national legal system or the objectives of integration programmes.

3. The application of the preceding paragraphs of this Article shall not prevent members of these populations from exercising, according to their individual capacity, the rights granted to all citizens and from assuming the corresponding duties.

Article 11

The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized.

APPENDIX 1—FACTUAL INFORMATION

The following parties were involved in the Fourth Russell Tribunal on the rights of the Indians in the Americas.

A. THE JURY

Mario Yuruna (Brazil), president
Xavante leader of the Indian village Namunkura in the Sâo Marcos Reservation.

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Guillermo Bonfil Batalla (Mexico), vice president
Anthropologist; published about various Indian Groups .in Mexico. Signed the Barbados Declaration.

Domitila Barrios de Chungara (Bolivia)
Active in mining syndicate and women’s organization of mining village. Participated in 1975 in the Women’s Conference in Mexico, and five years later in Copenhagen. Since then, the coup of Garcia Meza made it impossible for her to return to her country.

Eduardo Galeano (Uruguay)
Author of various books, of which “The open vains of Latin America” is the most famous one. Editor of various newspapers and magazines. He is living in Spain.

Robert Jaulin (France)
Anthropologist. Professor in Cultural Anthropology at the University of Paris, with great concern for Indian matters.

Robert Jungk (Austria)
Philosopher and futurologist. Published “The Atom State” and “The future already started”. Participated in the Third Russell Tribunal on the Berufsverbote in Germany.

Lolle Nauta (The Netherlands)
Philosopher. Professor in Groningen (The Netherlands). At the moment he is founding the Faculty of Philosophy in Lusaka (Zambia). Was member of the Jury of the Third Russell Tribunal.

Darcy Ribeiro (Brazil)
Anthropologist. Former Minister of Education. Publishes books on Indians. Professor of the University of Rio de Janeiro.

Stefano Varese (Peru)
Anthropologist. Signed the Barbados Declaration and publishes many articles about Indian matters in Peru, Mexico and other Latin American countries. Is living in Mexico and working for the Directorate of Popular Cultures.

Karl Schlesier (West Germany)
Anthropologist. Working and living in the United States of America. Professor of Cultural Anthropology at Wichita State University, Kansas. Many publications on North American Indians, past and present.

Elliot Taikeff (United States of America)
Jurist. Was a jury member of the Third Russell Tribunal.

Loek Hulsman (The Netherlands)
Technical chairman. Professor in Criminal Law in Rotterdam.

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B. HONORARY MEMBERS OF THE JURY

Hortensia Bussi de Allende (Chile)
Widow of the former President of Chile. Famous advocate of human rights. Member of the Second Russell Tribunal. Lives in exile in Mexico.

George Casalis (France)
Theologist. Member of the jury of the Second and Third Russell Tribunal.

Jose Chipenda (Angola)
Member of the World Council of Churches.

Trevor Griffiths (England)
Playwriter. Member of the jury of the Third Russell Tribunal.

Lucio Lombardo Radice (ltaly)
Mathematician, member of the executive committee of the PCI, member of the jury of the Third Russell Tribunal.

Josephine Richardson (England)
Lawyer, Labour-MP, member of the jury of the Third Russell Tribunal.

Stan Steiner (USA)
Author of various books on minority-groups in the Americas and elsewhere. Expert on Native American Peoples.

Yap Thiam Hien (Indonesia)
Lawyer, eminent advocate of human rights.

C. Philip Deer (USA)
Spiritual leader of the Muskogee tribe.

Jack Forbes (USA)
Professor on Native American Studies.

Robin Hanbury-Tenison (England)
Chairman of Survival International.

Evaristo Nunkuak (Peru)
President of the Aguaruna Confederation.

Robert Pac (France)
Member of the Mouvement contre le Racisme.

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South America

NAME CASE CHARGE MADE BY SUBJECT OF THE CASE
COMUNIDAD TAHAMI-EMBERAA (COLOMBIA) José Silvio Tapasco, responsable for the Frente Indigena of ANUC Genocide, theft of a goldmine and theft of means of survival in the Alto Andagueda.
NEW TRIBES MISSION (VENEZUELA) Ethnocide and violation of human rights of the Indigenous Nations in the Amazone Area.
SURINAME (SURINAME) Aktie Grondrechten Binnenland (National Land Rights Action) Land rights in Marowijne.
KOLLASUYO (BOLIVIA) Movimiento Indio Tupac Katari (MITKA) Ethnocide and genocide ever since the discovery.
BOLIVIA (BOLIVIA) Embargo Embargo
BOLIVIA CSUTCB Repression and violation of basic human rights of the Aymara, Quechuas and other minorities.
CHILE Mapuche Indians Indigenous law.
MAPUCHE (CHILE) Comité Mapuche Europa Repression and ethnocide.
MANGUEIRINHA (SOUTH OF BRAZIL) Conselho Indigenista Missionario (CIMI)-Sul Landgrabbing; ethnocide and theft of means of support of the Guarani and Kaingang.
*RIO NEGRO PRELACY (NORTH OF BRAZIL) Marcio Souza on behalf of the Indigenous peoples of the Rio Negro region Radical ethnocide and repression of the Nations of Aruak and Yanomami.
*NAMBIQUARA (BRAZIL) Camissao de Defesa do Povo Nambiquara Deliberate genocide caused by the construction of a highway through Indian land.
WAIMIRI-ATROARI (BRAZIL) Egydio Schwade (CIMI) Genocide: Road construction and hydro-electric project on Indian territory.
YANOMAMI (BRAZIL) ARC/CCPY Indian territory is proclaimed a “National Reserve Park” for national resource exploitations.

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This is the French version of page A:49.

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Carlos Taype Campos (Peru)
Secretary of Defense of the Peasant Confederation of Peru

D. GENERAL DEFENDERS

John Clinebell (USA)
Lawyer

Daniel Estrada Perez (Peru)
Lawyer in Cuzco. Advisor of popular organizations

E. LIST OF MEMBERS OF THE INTERNATIONAL ADVISORY COUNCIL

Noam Chamsky
Philosopher and philologist, USA

Shelton Davis
Anthropologist and author, USA

Ole Esperson
Lawyer and M.P., Denmark

Lord Tony Gifford
Lawyer, Member of the House of Lords, Member Third Russell Tribunal, U.K.

Robin Henbury Tenison
Anthropologist, chairman of Survival International, U.K.

François Houtart
Theologian and sociologist, Belgium

J. W. van Hulst
Historian and M.P., member of the European Council, Netherlands

Torkel Opsahl
Lawyer, Norway

Alfonso Ortiz
Anthropologist, USA

Robert Pac
Mouvement contre Racisme, France

James F. Petras
Sociologist, USA

François Rigaux
Philosopher and sociologist, Belgium

Elliot Taikeff
Lawyer and author, USA

Edward W. Scott
Primate of the Anglican Church of Canada

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F. LIST OF MEMBERS OF THE DUTCH SECTION OF THE ADVISORY COUNCIL

Arend Hilhorst
Social Democratic Party (PvdA)

Mrs. Ata Kando
Author and photographer

Michiel van de Kasteelen
Radicals (PPR)

Mrs. Dr. Marga Klompé
Chairman of Justitia & Pax

Drs. Jan Pronk
Former Minister, now working for UNCTAD

Ton Regtien
Communist Party (CPN)

Mrs. Drs. Susanne Bischoff
Democrats (D’66), M.P.

A. G. van der Spek
Pacifistic-socialists (PSP), M.P.

Phili Burgers
Christian-democrats (CDA)

G. WORKGROUP INDIAN PROJECT

The Workgroup Indian Project is an organization that consist almost exclusively of volunteers. These people are often working a few days a week at the Tribunal. As there are dozens of volunteers, it would be impossible to mention them all here, as well as the names of the voluntary translators (± 80) and the members of the fourty local support groups.

Coordinator: Fons Eickholt

H. EUROPEAN SUPPORT GROUPS

BANAI, Belgium
Comité de Soutien aux Indiens d’Amérique, Belgium

Gesellschaft für bedrohte Volker, Federal Republic of Germany

A.I.M.—Support Group Hamburg, Federal Republic of Germany

International Workgroup for Indigenous Affairs, Denmark

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MITKA Paris, France

Comité d’Amérique indienne, France

Comité de Soutien aux Luttes indiennes, France

Abya Yala, France

Survival International, Great Britain

Soconas Incomindios, Italy

Werkgroep lndianen Zuid Amerika, the Netherlands

Nederlandse Actiegroep Noord Amerikaanse Indianen, the Netherlands

KIVA, the Netherlands

Incomindios Melle, Austria

Svenska Indianska Fôrbundet, Sweden

Incomindios Schweiz, Switzerland

Address Russell Peace Foundation: Ken Fleet (secretary)
Gamble Street
Nottingham NG 7 4ET
United Kingdom

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ANNEX 2 LIST OF CHARGES

North America

NAME CASE CHARGE MADE BY SUBJECT OF THE CASE
*HOTEVILLA HOPI Independent Hopi Village of Hotevilla American law that regulates the forms of government of the “reservations”.
*BIG MOUNTAIN DINE Herbert Blatchford in name of B.M.D. Sovereignty and mining: a case of ethnocide.
DAKOTA Dakota Treaty Council Violation of independence by the U.S. Government.
GENERAL CASE Indian Law Resource Centre a. Issue of the land rights of the Indians in the U.S.A.
b. Situation of the Iroquois, Dakota, Hopi, Seminoles and Shoshone.
URBAN INDIANS IN MINNEAPOLIS Rosemary Christensen (Minneapolis Public Schools) Situation of the Indians in the city of Minneapolis.
*HAUDENOSAUNEE (IROQUOIS) Grand Council of the Iroquois Confederacy Violation of treaty rights and land annexations.
DEEP WATER PEOPLE TEME AUGAMA ANI-SHABAI (ONTARIO-CANADA) Chief Gary Potts in name of Deep Water People Ethnocide and violation of indigenous rights.
MICMAC NATION (NOVA SCOTIA, CAN.) Union of Nova Scotia Indians Lands rights.
CHIEF SMALLBOY CASE A. Webster MacDonald (barrister) Right to an own territory for a camp of “survival group”
*GRAND COUNCIL TREATY NO. 9 (ONTARIO- CAN.) Chiefs of Grand Council Treaty No. 9 Hunting rights and fishing rights.
NATIVE COUNCIL OF CANADA Native Council of Canada Situation of the “Metis” and “Non-Status” Indians.
*CONSEIL ATTIKAMEK- MONTAGNAIS (CANADA) Attikamek-Montagnais Council Territorial rights and hydro-electric projects.
PELTIER CASE Bruce Ellison (lawyer) Political prisoners, F.B.I. activities on Indian land.
GANIENKEH TERRITORY (MOHAWK-U.S.A.) Indian Law Recourse Centre in name of the community Treaties and land rights.
HUPA CASE Hupa Survival Group Fishing rights.
WESTERN SHOSHONE Western Shoshone Sacred Land Association Territorial rights and military projects.
ALONQUIN COUNCIL (CANADA) Alonquin Council Deficient medical care.

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This is the French version of page A:54.

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Central America

NAME CASE CHARGE MADE BY SUBJECT OF THE CASE
MIXE (MEXICO) C.O.D.R.E.M.I. and a community of the Mixe Nation Genocide and territorial rights of authochtonous Mixes
*SPANISH EMBASSY CASE (GUATEMALA) Frente Democratico Contra la Represion Genocide: the murder of 23 Indian peasants in the Spanish Embassy.
GUAYMI (PANAMA) Guaymi representatives Projects in Cerro Colorado and hydro-electric plants; exploitation of copper in Guaymi land.
PURHEPECHAS (MEXICO) K’unguarekua P’urhécheri a. Landrobbery in Santa Fé de la Laguna
b. Landrobbery in Parikutin.
HUASTECA (HIDALGO, MEXICO) Representatives of several Huasteca-villages and CENCOS Genocide and ethnocide in several villages of the Huasteca Hidalguense
*GUATEMALA Anonymous indians Genocide and ethnocide.

South America

SIERRA NEVADA (COLOMBIA) Equipa de lnvestigacion y Trabajo Antropologico de la Sierra Nevada Landgrabbing and ethnocide of Arhuac, Kogais and Malayo Nations.
SHUAR (ECUADOR) Federacion de Centras Shuar Landgrabbing of the Shuar.
LEGISLACION PENAL (PENAL CODE IN PERU) Centra de lnvestigacion y Promocion Amazonica Peruvian legislation applied on Indians.
CCOCHAPATA (PERU) Oficina de Estudios y Asesoria Juridica Centra Bartolomé de las Casas Landgrabbing of the Indians of the community of Ccochapata.
SAN JUAN DE ONDORES (PERU) Comision Nacional de Derechos Humanos Landgrabbing and agression of the community of S.J.O.
*CAMPA (PERU) Centro de Investigacion y Promocion Amazonica (CIPA) Ethnocide and landgrabbing; invasions and theft of the natural resources.
*C.R.I.C. (COLOMBIA) Consejci Regional lndigena del Cauca (CRIC) Genocide, ethnocide and landgrabbing.
MUCHACHA (PERU) Movimiento Indio Pedro Vilca Apaza (MIPVA) Kidnapping of young girls from their parents by religeous organizations, to serve western families; ethnocide.
COLCABAMBA (PERU) Halvez Rios in name of Taype Campos of the peasant community of Colcabamba Genocide and ethnocide to this community.


Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14* 15 16 17 18 19
20 21 22 23 24 25 26* 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57

*On Order — Available Soon


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