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Sharon Verne: Five hundred and seven years for justice?

Sharon Verne

Sharon Verne: Is five hundred and seven years too long for justice?

By Sharon H. Venne

Sharon Venne is an accomplished First Nations Lawyer, who has worked on the United Nations Declaration on the Rights of Indigenous Peoples since the 70′s at the United Nations in Geneva and New York. She works with First Nations communities on the implemention of their own legal systems and self-determination.

Let me tell you a story. It is a story of five hundred years of oppression. It is a story of hope for the future generations.

When Columbus came across the great pond known as the Atlantic Ocean and fell onto the shores of Indigenous Peoples, our view of the world was overtaken by the colonizers. They changed the name of our lands to their names, calling our lands "America". If the name is to be America then it should be Indigenous America. These are our lands and territories. We are still alive to talk and write about our own history and our own view of the world. This short essay is about our work at the United Nations (UN) and our attempts to place ourselves among the family of nations. We have worked to have our rights recognized as a collective. We Indigenous Peoples want to have our right to self-determination recognized since we are peoples. We are human beings. It has been a long time since the family of nations recognized us as nations.

At contact with Europeans, each of the hundreds of Indigenous Peoples of Indigenous America possessed all the elements of nationhood that were well-established by European settlers: territory, governing structures, legal systems and a historical continuity with our territories. All Indigenous Nations were and remain sovereign in our own rights. Nothing since the arrival of Columbus has occurred to merit any reduction in the international legal status of Indigenous Peoples. The recognition of Indigenous Nations and our rights poses no threat to non-Indigenous Peoples.

According to the documents of the time, Europeans were generally unsure about the status of the peoples they encountered, who fell outside of the Christian family of nations. In the fourteenth and fifteenth centuries, the Catholic Church issued numerous papal bulls relating to the rights of Europeans in Indigenous territories. Romanus Pontifax (1455) for example, denied people living overseas from Europe any rights to lands and possessions, thereby allowing Christian monarchs to claim our lands and territories. With the legal support of the Pope, the "new world" was thus divided between the Portuguese and the Spanish.

Atrocities committed by explorers against inhabitants of lands sought as colonies became known in Portugal and Spain. This knowledge resulted in a public debate led by scholars, which had a profound effect on contemporary legal thinking about the rights of Indigenous Peoples. One side of this debate was a departure from accepted contemporary international law norms. This view held that peoples indigenous to these newly discovered lands were not human, owing to their lack of Christian knowledge, and, therefore, did not possess the same rights as Europeans; scholars, such as Bartolomé de Las Casas, urged the conversion of the Indigenous inhabitants rather than the slaughter and enslavement that was occurring. Las Casas was able to persuade the Spanish king to suspend the licensing of permits in Indigenous Peoples’ lands while the debates pursued; however, when they continued for many months without a clear conclusion, expeditions were resumed. The opposing side held that the Indigenous inhabitants were human and had rights that needed to be respected; this view was based on the international legal norms of the time.

A seminal legal essay of 1532, De India et De Jure Belli Reflections, was Francisco de Vitoria’s review of the rights of Indigenous Peoples. He argued that Indigenous Nations were the true owners of our lands and territories and, as such, could not be dispossessed of our territories through the doctrine of discovery or terra nullius. Vitoria argued that title to the lands of Indigenous Peoples could not be conveyed to a European power -- title could not be derived by either the Spanish monarchy or the pope, whose authority did not extend to secular matters. Thus, by Vitoria’s legal reasoning, the Spanish could not acquire title to Indigenous lands through discovery. With recognition that title to our lands was vested in Indigenous Peoples, Vitoria also held that our lands could be surrendered as a result of a "just war" waged to Christianize us. For the Christian nations, then, the mission to convert Indigenous inhabitants could justify continued atrocities and the claiming of our lands and territories by the colonizers. This "just war" continues to this day.

Part of the strategy of Indigenous Peoples to gain recognition for our lands and territories involves a lobby at the international level through the system known as the United Nations (UN). The UN is a complex and multi-layered body that is slow and cumbersome in its internal procedures. There are so many actors that need to be consulted on any issue. Indigenous Peoples have been learning the system and pushing forward towards being recognized as Peoples. In real terms, Indigenous Peoples have achieved a number of remarkable goals within the system: a study on treaties, a study on land rights, inclusion in the 1992 Rio Declaration and many other points of entry within the system.

When Indigenous Peoples came to the UN in 1977 as "outsiders" looking for our rightful place, we were met by state governments and the inherent prejudices against Indigenous Peoples. To overcome the prejudices, Indigenous Peoples have had to find our way among the different procedures and forums to create a space for ourselves. The struggle has been to break down the barriers that state governments have raised against Indigenous Peoples within and outside of the state system. Going to the UN was not intended as a promotion of the system but rather to concentrate efforts to break down the barriers of racism and colonization. Our struggle at the UN is a history of continued efforts to decolonize. Our focus has been our collective rights to our lands and territories, and this has been crystallized around the concept of self-determination.

When we reviewed the international legal instruments at the UN, we realized that these instruments did not protect our rights. The rights protected in those instruments were rights of the individual within a state system. If an Indigenous person had the same rights as a non-indigenous person within a state, their rights as an Indigenous person would be lost. For example, the right to an education. Whose education? An education within the Indigenous edu-cation system? Or within the colonizer’s education system? Within the colonizer’s education system, an Indigenous person is assimilated and lost to their collective identity. Our focus on collective rights is at odds with the UN focus on the rights of the indivi-dual. The approach to this problem was to promote the drafting of a declaration on our rights.

Initially, Indigenous Peoples did not think that the UN would draft such a document. In the early 1980’s shortly after the founding of the permanent body of the UN known as the Working Group on Indigenous Peoples, Indigenous delegates in our own internal meetings started drafting our own declaration. At the time, Indigenous delegates wanted to draft an instrument that would encompass our rights and our understanding of our rights. As the years moved along, the number of principles in our draft reached twenty-one. The key provisions related to our right to self-determination, our land and resources rights and our collective rights as Peoples.

When the UN Working Group on Indigenous Peoples took up the task of drafting a declaration in the late 1980’s, Indigenous Peoples were involved. We spent many hours in private meetings prior to each Working Group to determine our course of action. It became clear to us that there was going to be a struggle to get some minimum standards into the UN draft. It was absolutely necessary to have our right to self-determination recognized by the states within the UN.

The UN’s recognition of self-determination as a governing principle in the determination of decolonization, and member states’ acceptance of this principle was a primary objective. We have been living under colonial states since Columbus. We could not get access to the decolonization committee. We needed to find another way for our right of self-determination to be recognized. In the declaration, we wanted a clear statement of our right to self-determination. There were two major UN Covenants -- the Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights. Both have as their first article: "All Peoples have a right to self-determination..." This article does not apply to Indigenous Peoples. State governments have signalled their position. In 1988 and 1989, when the International Labour Organization (ILO) was revising its Convention 107, the revised ILO Convention 169 states explicitly that the use of the term "Indigenous Peoples" has no international legal meaning. It is clear to Indigenous Peoples that state governments do not consider us to be "Peoples". So that article in the two covenants should read: "All Peoples except Indigenous Peoples have the right to self-determination".

It is absolutely critical to Indigenous Peoples that the right of self-determination be included in the declaration. When there was an effort by state governments to have the language removed from the draft in early 1990, Indigenous Peoples stated that if self-determination was removed, they would need to condemn the whole process and step away from the draft declaration. For us, removing self-determination from the draft would be a strong and visible sign that after five hundred years, we are still not recognized as human beings.

Our position is clear. If it means walking away from the draft that we spent so much time and effort to draft, we will do so. We could wait for a better opportunity to push our rights. If state governments remove the right to self-determination, then the UN as a collective body is acting as a colonizer. Rather than promoting decolonization, it would merely be continuing the process. This would be a shame on all people from the family of nations.

Sharon Helen Venne (Old woman Bear) is Cree but, through marriage, a citizen of the Blood Tribe in Treaty Seven. She has played an active role in the national and international struggles of many Indigenous Peoples, including the Lubicon Cree and Dineh Nation. Sharon has a Masters of Law degree from the University of Alberta, and is presently a doctorial candidate, writing a thesis on treaty rights of Indigenous Peoples and international law.