Hulquminum Treaty Group v. Canada Organization of American States (OAS), Inter-American Commission on Human Rights (IACHR) Case No.

12.374 Backgrounder to the case The Hulquminum Treaty Group (HTG) filed a human rights complaint against the government of Canada before the OAS Inter-American Commission on Human Rights on May 10, 2007. The complaint, filed in the form of a petition to the IACHR, alleges that Canada has violated the human rights of the Hulquminum peoples by granting approximately 85% of the lands traditionally used and occupied by the Hulquminum to private land owners without ever offering any form of restitution, either through return, replacement or payment of just compensation. HTGs petition explains that Canadas confiscation of virtually all of the Hulquminum traditional lands has resulted in the plundering and destruction of the natural environment upon which the Hulquminum peoples depend for their subsistence, livelihood, enjoyment of their culture and survival as indigenous peoples. By far, the largest act of confiscation of Hulquminum territory and resources by Canada, as the petition explains, was the 1884 grant of approximately 237,000 hectares (or 70% of the Hulquminum ancestral territories) to the E & N Railway Company, a private railroad corporation formed in the late 19th century to encourage rapid colonization of Vancouver Island. As HTGs subsequent submissions to the Commission detail, that corporation, in turn, regranted many of these same Hulquminum traditional lands to private third parties, so that today, almost two-thirds of the Hulquminum ancestral territory, nearly 190,000 hectares, is owned and controlled by three large forestry and real estate development corporations Hancock Timber Resource Group, TimberWest Forest Corporation, and Islands Timberlands. As HTGs petition alleges, since the 2003 announcement of the 2010 Winter Olympics being held in British Columbia, large-scale logging operations have dramatically accelerated on these lands. The Big Three forestry corporations have clear-cut large parcels of undeveloped lands that have been traditionally used by the Hulquminum for hunting, gathering, and maintaining their traditional culture, economy and way of life, in order to make way for the intensive commercial, residential and tourist development witnessed on Vancouver Island during the past decade. The Big Threes planned future development activities on the remaining forested ancestral lands of the Hulquminum threaten further environmental damage destruction and the continuing cultural survival and integrity of the Hulquminum as indigenous peoples. As the petition alleges, Canada refuses to even recognize or discuss the claims of the Hulquminum to restitution for their lost ancestral lands that are now owned and controlled by these large forestry development corporations. On October 30, 2009, the Commission ruled that HTGs Petition is admissible with regard to alleged violations of Articles II (right to equality), III (right to religious freedom), XIII (right to culture), and XXIII (right to property) of the American Declaration on the Rights and Duties of Man, the OAS main human rights instrument. As a member of the OAS and signatory to the OAS Charter, Canada is internationally responsible for violating rights that are affirmed in the American Declaration and by other relevant rules and principles of international human rights law. The case now moves to the merits stage, where the Commission will, for the first time, consider substantive arguments on Canadas alleged violations of human rights against the Hulquminum peoples.

In ruling HTGs petition admissible, the Commission waived the normal requirements under international law and its own rules and procedures that petitioners must first exhaust domestic remedies before a case can be considered on the merits. The Commissions decision admitting HTGs petition agreed with HTG that Canada has failed to provide an effective remedy for its alleged violations of the Hulquminum peoples human rights in their traditional lands. Canada had argued before the Commission that the British Columbia Treaty Commission (BCTC) process could provide HTG with a remedy for the taking of Hulquminum ancestral lands in the form of a negotiated treaty that would settle its claims, but the Commission specifically found that the BCTC process has not allowed negotiations on the subject of restitution or compensation for HTG ancestral lands in private hands, which make up 85% of their traditional territory. Since 15 years have passed the IACHR notes that by failing to resolve the HTG claims with regard to their ancestral lands, the BCTC process has demonstrated that it is not an effective mechanism to protect the right alleged by the alleged victims." Canada had also argued that HTG could pursue its claims for restitution in Canadas courts. However, the Commission also rejected that argument as no Canadian court case, as HTG showed, had ever resulted in a specific order by a Canadian court mandating the demarcation, recording of title deed, restitution or compensation of indigenous peoples with regard to ancestral lands in private hands." As the court decisions cited by Canada on aboriginal title had failed to provide any reasonable expectation of success, the Commission ruled that because Canadian jurisprudence has not obligated the State to set boundaries, demarcate, and record title deeds to lands of indigenous peoples, , therefore, in the case of HTG, those remedies would not be effective under recognized general principles of international law." HTG has also asked the Commission to issue precautionary measures against Canada by urging it to suspend real estate development and permitting activity on the Hulquminum peoples traditional lands. That request is still being considered by the Commission. The IACHR is an autonomous organ of the Organization of American States (OAS). Its mandate is found in the OAS Charter and the American Convention on Human Rights. The IACHR represents all of the member States of the OAS. It has seven members who act independently, without representing any particular country. The members of the IACHR are elected by the General Assembly of the OAS. IACHR recommendations are in theory non-binding. However, the Inter American Court on Human Rights qualified this and found that states do have an obligation to implement the recommendations of the IACHR. The Court has previously stated that, in accordance with the stipulation regarding interpretation contained in Article 31(1) of the Vienna Convention on the Law of Treaties, in accordance with the principle of good faith, if a State signs and ratifies an international treaty, especially one concerning human rights, it has the obligation to make every effort to comply with the recommendations.