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INDIGENOUS STRUGGLES for LAND RIGHTS in CANADA, JAPAN and MEXICO: DELGAMUUKW, NIBUTANI DAM and ZIRAHUÉN by Naayeli Esperanza Ra

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INDIGENOUS STRUGGLES for LAND RIGHTS in CANADA, JAPAN and MEXICO: DELGAMUUKW, NIBUTANI DAM and ZIRAHUÉN by Naayeli Esperanza Ra INDIGENOUS STRUGGLES FOR LAND RIGHTS IN CANADA, JAPAN AND MEXICO: DELGAMUUKW, NIBUTANI DAM AND ZIRAHUÉN by Naayeli Esperanza Ramírez Espinosa A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) February 2014 © Naayeli Esperanza Ramirez Espinosa, 2014 Abstract This dissertation is an interpretive case study of the claims and decisions of three legal cases that were brought to the courts by Indigenous peoples with respect to their constitutional rights. The first is the Delgamuukw case in Canada; the second is the Nibutani Dam case in Japan; and the third is the Zirahuén case in Mexico. Even though, in these three cases, the courts seem to be sympathetic to the pleadings of the Indigenous plaintiffs, they all dismissed, rejected, or left their claims unresolved on procedural grounds. The focus of the study are the procedural standards used by the courts for the review of the plaintiffs’ claims in the three cases and focuses on four themes: 1) the paucity of suitable causes of action to challenge the interventions of the state and third parties by Indigenous communities; 2) the difficulties of proof; 3) the inadequacy of remedies corresponding to the rights established in national and international laws; and 4) legal language and uncertainty regarding the content and reach of the rights of Indigenous peoples in the three jurisdictions. The study also looks at the rationality behind such standards and the courts’ concerns with fairness, coherence and autonomy. This study indicates that the Indigenous plaintiffs’ constitutional claims were extremely difficult to frame within the causes of action available for them. The actions were extremely difficult to use either because there were no causes of action to protect their rights at a proper moment, the causes of action disregarded crucial characteristics of the legal and material realities of the communities, or the causes of action lacked corresponding remedies. These difficulties suggest that there was a redundant tension between the notion of sovereignty that courts used in their decisions and the rights of Indigenous peoples. The analysis also suggests that the plaintiffs’ constitutional rights are conditional to an issue of constitutional power that needs to be resolved. ii Preface All research and associated methods were approved by the University of British Columbia’s Behavioural Research Ethics Review Board [Certificate Number H11-00625]. A version of Chapter 6 has been accepted for publication [Naayeli E. Ramirez Espinosa, “Juzgando los Derechos de Minorías Indígenas a su territorio: un estudio comparado de las tenicalidades procedimentales que frustraron las demandas en los juicios de Delgamuukw, Nibutani, y Zirahuén” (2014)]. I was the lead investigator, responsible for all major areas of concept formation, data collection and analysis, as well as the dissertation composition. This dissertation was pursued under the supervision of Professor Shigenori Matsui, with the collaboration of Professors Robin Elliot, Maxwell Cameron, and Steve Wexler. Professors Shigenori Matsui, Robin Elliot, and Maxwell Cameron were members of the supervisory committee of this project and they were involved throughout the project in concept formation and manuscript composition. Professor Steve Wexler was involved in the concept formation and contributed to draft edits. iii Table of Contents Abstract.......................................................................................................................................... ii Preface........................................................................................................................................... iii Table of Contents ......................................................................................................................... iv List of Abbreviations ................................................................................................................... vi Acknowledgements ..................................................................................................................... vii Dedication ................................................................................................................................... viii Chapter 1: Introduction ...............................................................................................................1 Chapter 2: Methodology and Law ..............................................................................................9 2.1 Case studies...................................................................................................................... 14 2.2 Interviews and visits ........................................................................................................ 21 2.3 Literature review and other sources................................................................................. 25 2.4 About the researcher/author............................................................................................. 29 Part I: The Three Cases in Context............................................................................................32 Chapter 3: The Delgamuukw Case ............................................................................................37 3.1.1 Context of the Delgamuukw case.............................................................................. 39 3.1.1.1 Indigenous peoples............................................................................................. 40 3.1.1.2 Aboriginal title in Canada and British Columbia ............................................. 42 3.1.1.3 Judicial decision-making on the matter of Aboriginal title and rights in BC.... 44 3.1.1.4 The Gitksan and the Wet’suwet’en peoples ....................................................... 55 3.1.2 The claims at trial...................................................................................................... 63 3.1.2.1 Study of evidence................................................................................................ 70 3.1.2.2 The trial decision ............................................................................................... 76 3.1.2.3 The British Columbia Court of Appeal’s decision............................................. 78 3.1.2.4 The Supreme Court of Canada’s decision ......................................................... 83 Chapter 4: The Nibutani Dam Case ..........................................................................................91 4.1.1 Context of the Nibutani Dam case............................................................................ 94 4.1.1.1 Ainu people and Japan....................................................................................... 96 4.1.1.2 The Nibutani area and the dam ....................................................................... 108 4.1.1.3 The plaintiffs .................................................................................................... 114 4.1.2 The claims in the Nibutani Dam case ..................................................................... 116 4.1.3 The Sapporo District Court’s decision.................................................................... 119 Chapter 5: The Zirahuén Case ................................................................................................128 5.1.1 Context of the Zirahuén case .................................................................................. 130 5.1.1.1 The Zirahuén Community ................................................................................ 136 5.1.1.1.1 The Zapatista Movement, the San Andrés Accords, and the constitutional reform of August 14, 2001.......................................................................................... 146 5.1.2 The claims............................................................................................................... 153 5.1.3 The decisions rendered in the case.......................................................................... 155 5.1.3.1 The Federal District Court’s decision ............................................................. 156 5.1.3.2 The Second Chamber of the Supreme Court of Justice’s decision .................. 157 Part II: Uncertainty, Misunderstanding and Subordination.................................................161 Chapter 6: Examining the Issues of Procedure in the Three Cases.....................................169 6.1 The paucity of suitable causes of action ........................................................................ 169 iv 6.2 The issue of proof .......................................................................................................... 177 6.3 The lack of suitable remedies ........................................................................................ 193 6.4 The contested meaning of Indigenous peoples’ rights and uncertainty in the law ........ 202 6.5 Conclusions.................................................................................................................... 209 Chapter 7: The Rationale Behind the Law in Delgamuukw, Nibutani Dam, and Zirahuén217 7.1 ‘Reason’ ......................................................................................................................... 218 7.2 Individualism ................................................................................................................
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