Monday, January 7, 2019

Indigenous Women’s Cultural Rights 18/20

219. According to the UN Special Rapporteur on Cultural Rights, cultural rights are meant to “protect the rights of each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their world view and the meanings they assign to human existence and development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life.”543 These rights also protect access to tangible and intangible cultural heritage as important resources enabling such identification and development processes.544 The Expert Mechanism on the Rights of Indigenous Peoples has found that the right to culture in the context of indigenous peoples includes the right to self-determination, to their own culture, customs and languages, and the right to their institutions, and judicial systems.545

220. In order to ensure respect for the right to self-determination of indigenous peoples, the close connection between indigenous peoples’ cultural and language rights and their rights related to their lands, territories and natural resources must be recognized. 546 Additionally, indigenous peoples’ connections to traditional territories, to their homes and to their communities are important, even for those who have migrated elsewhere for work and education, to preserving and developing indigenous cultures.547 The Inter-American Court has held that the culture of the members of indigenous communities “corresponds to a specific way of life, of being, seeing and acting in the world, constituted on the basis of their close relationship with their traditional lands and natural resources, not only because these are their main means of subsistence, but also because they are an integral element of their cosmology, their spirituality and, consequently, their cultural identity.”548 The IACHR has previously noted that indigenous women belong to societies where ancestral land is an essential element of their existence and culture.549 In the context of a visit conducted by the Commission to Colombia, indigenous women stated that their survival is linked to preserving their lands, because that is where they can freely express their culture.550 Indigenous woman from Trinidad and Tobago and from Belize, respectively, informed the Commission of the central role women play in passing down culture from one generation to the next, affirming that “culture is who we are as indigenous women,”551 and that, “[indigenous] women are seen as the protectors and custodians of cultural values, customs and practices, and are protectors of that knowledge. They have the power to translate this knowledge to satisfy the sustainable lives of their children.”552 In addition, they spoke of the strength and resilience of  indigenous women, and of their ability to empower entire communities through the revival of their traditional knowledge on their culture or land preservation.553

221. In her report on indigenous peoples and their relationship to the land, former UN Special Rapporteur of the Working Group on Indigenous Populations, Erica-Irene Daes, identified several elements: a) indigenous peoples have a deep relationship with their lands, territories, and resources; b) it is a relationship involving a variety of dimensions and social, cultural, spiritual, economic, and political responsibilities; c) the collective dimension of that relationship is important; and d) the intergenerational aspect of this relationship is fundamental to the cultural identity, survival, and viability of indigenous peoples.554 The IACHR has addressed the unique relationship between indigenous peoples and their lands on many occasions, expressing that “the use and enjoyment of the land and its resources are integral components of the physical and cultural survival of the indigenous communities and the effective realization of their human rights more broadly.”555 The Commission has observed that the particular connection between indigenous communities and their lands and resources is linked to these peoples’ very existence, both in terms of material subsistence and of cultural integrity, and therefore “warrants special measures of protection.”556 Likewise, the Inter-American Court has underscored that “for indigenous communities, relations to the land are not merely a matter of possession and production, but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.”557

222. Given that cultural and community identity is highly important to indigenous peoples, the forcible removal of children from their lands and the forced break up of families can have a variety of effects on the community in general and especially, on women and girls. State policies involving forced removal of children from families cause strong intergenerational impacts.

223. The situation of indigenous children and families in Canada provides an emblematic example of violations of the right to cultural identity. From 1879 to 1996, for over a century, as part of government assimilation strategies, the Canadian government established a mandatory residential schools policy for indigenous children. These government-funded and church-run schools and residences were “set up to assimilate Aboriginal people forcibly into the Canadian mainstream by eliminating parental involvement and community involvement in the intellectual, cultural, and spiritual development of Aboriginal children.”558 This policy was based in racist and discriminatory beliefs, they “were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, "to kill the Indian in the child".”559 More than 150, 000 First Nation, Métis and Inuit children were forcibly removed from their families and placed in boarding schools, where they were purposefully cut off from their indigenous traditions and cultures. At these boarding schools, the indigenous children were provided an inferior education, were instead encouraged to learn a craft or a trade, and school management and staff frequently mistreated and abused their students emotionally, physically and far too often, sexually. In addition to being removed far from their families, having their traditional clothes thrown away, their hair cut, and their customs mocked, they were not permitted to communicate in their native languages, including in letters to their families, who in most instances were neither English nor French speakers.560

224. While also acknowledging that residential schools have scarred many young men and have had lasting effects on them, the IACHR considers that the legacy of the residential school program is a cause and a consequence of the discrimination and violence existing today in Canada against women and indigenous girls.561 This policy caused social disruption, the breakdown of families and communities, as well as trauma for former students.562 Based on information gathered by the IACHR, many indigenous students grew up separated from their cultures, language, and families, affecting their sense of identity and their relationships to their families and communities.563

225. The separation of young children from their families, communities and cultures, paired with the severe discipline, abuse and neglect of children in these schools, are understood as having undermined the ability of many survivors to adequately parent their own children. The former UN Rapporteur on the rights of indigenous peoples, James Anaya, has noted that among the results of the residential school era has been a lack of intergenerational transmission of child-raising skills and high rates of substance abuse.564 In this regard, he highlighted the fact that “Aboriginal children continue to be taken into the care of child services at a rate eight times higher than non-indigenous Canadians.” 565 The Commission also received information that demonstrated that the high rates of indigenous child removal in Canada were not only related to the trauma of survivors, but also to the inadequate funding of child welfare services on reserves by the Federal government, in comparison to non-indigenous children.566 The Commission was also informed of the funding and service level disparities in child and family services for indigenous children compared to nonindigenous children that persist to this day. 567 In fact, the Truth and Reconciliation Commission concluded that: “Canada’s child-welfare system has simply continued the assimilation that the residential school system started.”568

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