Chief Bernard Ominayak, et al. v. Canada

Chief Bernard Ominayak (the “author”) was the leader and representative of the Lubicon Lake Band (the “Band”), a Cree Indian Band living in the Province of Alberta in Canada. He argued that the State party expropriated Lubicon land for commercial interest despite its recognition that the Band members had the right to continue their traditional way of life (as per the Indian Act of 1970 and Treaty 8 of 1899). The author claimed that the expropriation destroyed the Band’s land, depriving the band of its traditional means of subsistence ability to enjoy the right of self-determination, and causing irreparable injury to the Band.

Each party made a number of submissions regarding the State party’s culpability in the deteriorating health conditions of the Band, the extent of the destruction of the Band’s physical territory, the extent of the Band’s loss their traditional way of life, the bias in the Canadian courts, and whether the state party was negotiating in good faith. Ultimately, the Band alleged that such expropriation and the State party’s legal delaying tactics had breached articles 1 (guaranteeing the right to self-determination and the right to freely dispose of their natural wealth and resources), 7 (guaranteeing freedom from cruel, inhuman and degrading treatment), 14 (guaranteeing a fair trial), 17 and 23 (guaranteeing respect for family life), 18 (guaranteeing freedom of religion, and 2 (guaranteeing freedom from discrimination) of the International Convention on Civil and Political Rights (“ICCPR”). The author requested the Committee find that the Band’s rights under the ICCPR had been violated in order to convince the State party of the following: (1), the Band’s existence was in serious peril, and (2) that Canadian government was responsible for this situation.

The State party denied the allegations, arguing that Band’s claim was part of a complex situation involving many competing claims of native groups in the area, that effective domestic redress of the Band’s claim was available, that article 1 of the Covenant, concerning the rights of a group, not an individual, could not be invoked under the Optional  Protocol, which only permitted consideration of alleged violations of an individual’s claim, that no irreparable damage to the Band’s traditional way of life had occurred or was imminently threatened, and that any delay in the domestic legal proceedings was attributable to the Band.

The Committee had found the author’s communication admissible under s.1 of the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) on the grounds that the author raised issues under article 27 (minority rights to culture, religion, and language) and potentially other articles of the ICCPR. The Committee had requested that the State party take interim measures to avoid irreparable damage to the Lubicon Lake Band and its members.

The Committee, after considering Canada’s request to review the admissibility of the author’s communication, determined that domestic litigation could not effectively save or restore the Band’s traditional subsistence and way of life, and would be an ineffective remedy under article 5, paragraph 2(b) of the Optional Protocol. The Committee concluded that domestic remedies had thus been exhausted.

The Committee concluded the article 1 question of whether the Band constitutes a “people” was not appropriate for the Committee to address under the Optional Protocol. The Committee observed that many of the author’s claims raised issues under article 27 (guaranteeing the rights of persons to engage in economic and social activities which are part of the culture of the community) of the ICCPR, but sweeping allegations that other articles of the Covenant had been seriously breached were not substantiated.

The Committee held that historic inequities and recent developments on the Band’s traditional lands threatened the Band’s way of life and culture, and constituted a violation of article 27 as long as they continued. The Committee found that the State party’s proposed remedy, the establishment of reserve land pursuant to the treaty concluded in 1899, was appropriate under article 2 of the Covenant.

“16.2 The author further alleges that the State party, through actions affecting the Band's livelihood, has created a situation which ‘led, indirectly if not directly, to the deaths of 21 persons and [is] threatening the lives of virtually every other member of the Lubicon community. Moreover, the ability of the community to [survive] is in serious doubt as the number of miscarriages and stillbirths has skyrocketed and the number of abnormal births ... has gone from near zero to near 100 per cent’. This, it is submitted, constitutes a violation of article 6 of the Covenant.”

“23.2 In substantiation of earlier allegations, the author explains that the Band's loss of its economic base and the breakdown of its social institutions, including the transition from a way of life marked by trapping and hunting to a sedentary existence, has led to a marked deterioration in the health of the Band members:

‘... the diet of the people has undergone dramatic changes with the loss of their game, their reliance on less nutritious processed foods, and the specter of alcoholism, previously unheard of in this community and which is now overwhelming it .... As a result of these drastic changes in the community's physical existence, the basic health and resistance to infection of community members has deteriorated dramatically. The lack of running water and sanitary facilities in the community, needed to replace the traditional systems of water and sanitary management .... is leading to the development of diseases associated with poverty and poor sanitary and health conditions. This situation is evidenced by the astonishing increase in the number of abnormal births and by the outbreak of tuberculosis, affecting approximately one third of the community.’”

“29.5 The author has accused the State party of creating a situation that has directly or indirectly led to the death of many Band members and is threatening the lives of all other members of the Lubicon community, that miscarriages and stillbirths have skyrocketed and abnormal births have risen from zero to near 100 per cent, all in violation of article 6 of the Covenant; that the devastation wrought on the community constitutes cruel, inhuman and degrading treatment in violation of article 7… that the Band members have been "robbed of the physical realm to which their religion attaches" in violation of article 18, paragraph 1; and that all of the above also constitutes violations of article 2, paragraphs 1 to 3, of the Covenant.”