International norm diffusion in the pimicikamak cree nation: A model of legal mediation

Harvard International Law Journal

Volumn 48, Issue 2, 2007, Pages 441-482

  Sarfaty, Galit A ^a,b  

^a HARVARD LAW SCHOOL   (United States)

^b HARVARD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548637457     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (197)

1. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (1996);
2. Chris Tennant, Indigenous Peoples, International Institutions, and the International Legal Literature from 1945-1993, 16 HUM. RTS. Q. 1 (1994).
3. The U.N. Economic and Social Council ("ECOSOC") created the Permanent Forum on Indigenous Issues on July 28, 2000. According to ECOSOC Resolution 2000/22, the Permanent Forum "shall serve as an advisory body to the Council with a mandate to discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights." U.N. Doc. E/RES/2000/22 (July 28, 2000); see also John Carey & Siegfried Wiessner, A New United Nations Subsidiary Organ: The Permanent Forum on Indigenous Issues, ASIL INSIGHTS Apr. 2001, http://www.asil.org/insights/insigh67.htm.
4. On June 29, 2006, the U.N. Human Rights Council passed a resolution recommending that the General Assembly adopt the U.N. Draft Declaration on the Rights of Indigenous Peoples, which was finalized in 1994. While the declaration would not be binding on states, it could serve as a tool for pressuring states to protect indigenous rights. U.N. Human Rights Council, Draft Report to the General Assembly on the First Session of the Human Rights Council, U.N. Doc. A/HRC/1/L.10 (June 30, 2006) (prepared by Musa Burayzat).
5. See Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996) [hereinafter Koh, Transnational Legal Process];
6. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997) [hereinafter Koh, Why Do Nations Obey International Law?].
7. See Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004);
8. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935 (2002).
9. See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998).
10. See THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse et al. eds., 1999) (constructing a five phase "spiral model" of socialization to international human rights norms).
11. During my field research, I compiled data from semi-structured interviews, analysis of government documents in Cross Lake and Winnipeg, and visits to the United Nations in Geneva.
12. My use of the terms "custom" and "customary law" refers to the de facto habits that have developed in a people's practices and institutions, based on a group's cultural traditions. It does not imply that there exists an authoritative expression of a people's culture. While I often refer to the Cree Nation as a collectivity with customary practices and laws, I recognize that there exists a multiplicity of perspectives within the group that I am not able to fully account for. Thus, my discussion of the Cree does not presuppose a single ethnic identity. It is a construction based on my personal encounters with different community members and my approximation of internal differences.
13. See, e.g., BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION (1995);
14. John Griffiths, What Is Legal Pluralism?, 24 J. LEGAL PLURALISM & UNOFFICIAL L. 1 (1986);
15. Sally Engle Merry, Legal Pluralism, 22 LAW & SOC'Y REV. 869 (1988);
16. Gunther Teubner, The Two Faces of Janus: Rethinking Legal Pluralism, 13 CARDOZO L. REV. 1443 (1992).
17. Michael Kearney, The Local and the Global: The Anthropology of Globalization and Transnationalism, 24 ANN. REV. ANTHROPOLOGY 547, 560 (1995).
18. See, e.g., Michael B. Likosky, Introduction to TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES xxiv (Michael B. Likosky ed., 2002);
19. Sally Falk Moore, An International Legal Regime and the Context of Conditionality, in TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES, supra, at 333;
20. Koh, Transnational Legal Process, supra note 4;
21. Koh, Why Do Nations Obey International Law?, supra note 4;
22. Catherine Powell, The Role of Transnational Norm Entrepreneurs in the U.S. "War on Terrorism," 5 THEORETICAL INQUIRIES L. 47 (2004).
23. Harold Hongju Koh, Transnational Legal Process After September 11th, 22 BERKELEY J. INT'L L. 337, 339 (2004).
24. Paul Schiff Berman, From International Law to Law and Globalization, 43 COLUM. J. TRANSNAT'L L. 485, 545 (2005).
25. The Chayes' managerial model and Thomas Franck's fairness model similarly focus on states in their theories of norm compliance. See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1995);
26. THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995).
27. See, e.g., KECK & SIKKINK, supra note 6; Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 INT'L ORG. 887 (1998);
28. Thomas Risse & Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practices: Introduction, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC: CHANGE, supra note 7, at 1.
29. See, e.g., MARTHA FINNEMORE, NATIONAL INTERESTS IN INTERNATIONAL SOCIETY (1996);
30. THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE, supra note 7;
31. John Gerard Ruggie, What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge, 52 INT'L ORG. 855 (1998);
32. Alexander Wendt, Anarchy Is What States Make of It: The Social Construction of Power Politics, 46 INT'L ORG. 391 (1992).
33. FINNEMORE, supra note 17, at 5.
34. Finnemore & Sikkink, supra note 16.
35. Id.
36. Berman, supra note 14, at 539.
37. See id. at 507.
38. See, e.g., Griffiths, supra note 10.
39. See, e.g., Merry, supra note 10.
40. See LEOPOLD POSPISIL, ANTHROPOLOGY OF LAW: A COMPARATIVE THEORY 125 (1971).
41. See SALLY FALK MOORE, LAW AS PROCESS: AN ANTHROPOLOGICAL APPROACH 24, 57 (1978).
42. Id.
43. Id. at 56.
44. See, e.g., David M. Engel, Law, Time, and Community, 21 LAW & SOC'Y REV. 605 (1987);
45. Carol J. Greenhouse, Nature Is to Culture as Praying Is to Suing: Legal Pluralism in an American Suburb, 20 J. LEGAL PLURALISM 17 (1982);
46. Sally Engle Merry, Going to Court: Strategies of Dispute Management in an American Urban Neighborhood, 13 LAW & SOC'Y REV. 891 (1979). For a review of "classic" and "new" scholarship on legal pluralism, see Merry, supra note 10.
47. Merry, supra note 10, at 880.
48. Gunther Teubner, 'Global Bukowina': Legal Pluralism in the World Society, in GLOBAL LAW WITHOUT A STATE 3, 14 (Gunther Teubner ed., 1997).
49. See GUNTHER TEUBNER, LAW AS AN AUTOPOIETIC SYSTEM 11 (1993).
50. Boaventura de Sousa Santos, Law: A Map of Misreading. Toward a Postmodern Conception of Law, 14 J. L. & SOC'Y 279, 298 (1987).
51. SANTOS, supra note 10, at 457.
52. Francis Snyder, Governing Economic Globalisation: Global Legal Pluralism and European Law, 5 EUR. L.J. 334 (1999).
53. Id. at 335.
54. Sally Engle Merry, International Law and Sociolegal Scholarship: Towards a Spatial Legal Pluralism 4-5 (Jan. 2007) (unpublished manuscript, on file with author).
55. Id. at 24.
56. Berman, supra note 14, at 539.
57. See generally KECK & SIKKINK, supra note 6.
58. See Maivan Clech Lam, Making Room for Peoples at the United Nations: Thoughts Provoked by Indigenous Claims to Self-Determination, 25 CORNELL INT'L L.J. 603 (1992);
59. Sally Engle Merry, Anthropology and International Law, 35 ANN. REV. ANTHROPOLOGY 99 (2006).
60. Berman, supra note 14, at 551.
61. Carey & Wiessner, supra note 2.
62. In 2001, the U.N. Commission on Human Rights appointed Rodolfo Stavenhagen from Mexico as the first Special Rapporteur. See U.N. Commission on Human Rights Res. 2001/57, U.N. Doc. E/CN.4/Res/2001/57 (Apr. 24, 2001).
63. See supra note 3.
64. World Bank, The World Bank Operational Manual, Operational Directive 4.20: Indigenous Peoples (Sept. 1991).
65. Id. at paras. 8, 14.
66. World Bank, The World Bank Operational Manual, Operational Directive 4.10: Indigenous Peoples (July 2005).
67. See INTER-AMERICAN DEVELOPMENT BANK, STRATEGY FOR INDIGENOUS DEVELOPMENT (2006), available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx? docnum=691275;
68. ASIAN DEVELOPMENT BANK, POLICY ON INDIGENOUS PEOPLES (1998), available at http://www.adb.org/Documents/Policies/Indigenous_Peoples/ADB-1998-Policy-on-IP. pdf.
69. See generally Galit A. Sarfaty, Note, The World Bank and the Internalization of Indigenous Rights Norms, 114 YALE L.J. 1791 (2005).
70. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.). This case was brought in the early 1980s by the Gitksan and Wet'suwet'en peoples, who sought to pressure the government of British Columbia to acknowledge aboriginal title and enter into land claims negotiations. The most significant evidence of a spiritual connection between the two groups and their territory was a feast hall where the Gitksan and Wet'suwet'en peoples orally passed down stories and songs that tied them to their land. The Supreme Court ruled against the trial judge's refusal to recognize the indigenous peoples' oral history as permissible evidence and ordered that a new trial be convened that gave weight to their oral histories as evidence.
71. Id. at paras. 80, 87.
72. MANUELA TOMEI & LEE SWEPSTON, INDIGENOUS AND TRIBAL PEOPLES: A GUIDE TO ILO CONVENTION No. 169 25 (1996).
73. Id.
74. Colombia's new constitution, adopted in 1991, recognizes and protects the ethnic and cultural diversity of the Colombian nation. See Constitución Política de la República de Colombia, as amended, 27 de Julio de 2005, art. 7 (Colom.). A 1991 amendment to the Mexican constitution states that Mexico has a multicultural composition based originally on its indigenous peoples. See Constitución Política de los Estados Unidos Mexicanos, as amended, Diatio Oficial de la Federación [D.O.], 27 de Septiembre de 2004, art. 2 (Mex.).
75. See Constitución Política de la República de Bolivia, as amended, 6 de Julio de 2005, art. 171 (Bol.).
76. See Constitución Política de la República de Colombia, as amended, 27 de Julio de 2005, art. 246 (Colom.).
77. Resolution on Action Requited Internationally to Provide Effective Protection for Indigenous Peoples, EUR. PARL. DOC. PV 58(2) (1994).
78. Id. at 3, para. 2.
79. See SWISS AGENCY FOR DEV. & COOPERATION, SWISS ACTION FOR INDIGENOUS PEOPLES 32 (1998) (referencing Netherlands's Policy on Indigenous Peoples, 1993; Denmark's Strategy for Support to Indigenous Peoples, 1994; The United Kingdom's Guidance on Ethnicity, Ethnic Minorities and Indigenous Peoples, 1995; Germany's Policy for Indigenous Peoples in Latin America, 1996; and Spain's Strategy for Cooperation with Indigenous Peoples, 1997).
80. Id. at 18.
81. Id. at 21. In accordance with this policy, Switzerland supported the creation of human rights defense centers in Bolivia that pay special attention to the rights of indigenous peoples in the administration of justice. Id.
82. See VERNER GOLDSCHMIDT, Introduction to THE GREENLAND CRIMINAL CODE 3 (Leonard Kaplan, Michael Merrit & Norval Morris eds., 1970).
83. Elaine Schechter, The Greenland Criminal Code and the Limits to Legal Pluralism, 1 ÉTUDES INUIT 79, 79 (1983) (quoted in ABORIGINAL & TORRES STRAIT ISLANDER SOC. JUSTICE COMM'R, AUSTRALIAN HUMAN RIGHTS & EQUAL OPPORTUNITY COMM'N, THIRD REPORT 23 (1995)).
84. Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 91 HARV. L. REV. 4 (1983).
85. Id. at 25.
86. Id. at 15.
87. Id. at 32.
88. CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 167-234 (1983).
89. See infra Part II.A.1.
90. JOHN AITCHISON ET AL., REPORT OF THE INTERCHURCH INQUIRY INTO NORTHERN HYDRO DEVELOPMENT (2001).
91. Grand Council of the Crees, Submission to the U.N. Committee on Economic, Social and Cultural Rights, Reciting the Symptoms, Ignoring the Cause: The Systematic Dispossession of Aboriginal Peoples in Canada (Nov. 16, 1998), available at http://www.gcc.ca/archive/article.php?id=67 (citing data communicated verbally by anthropologist Ronald Niezen).
92. RONALD NIEZEN, THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND THE POLITICS OF IDENTITY 66-67 (2003).
93. Can. Dep't of Indian Affairs & N. Dev., First Nations Community Profiles (2007), available at http://pse2-esd2.ainc-inac.gc.ca/ FNProfiles/FNProfiles_home.htm. On-reserve means living on the reservation.
94. Jason Miller, Statement to the Interchurch Inquiry on Northern Hydro Development (June 22, 1999) (on file with the Harvard International Law Journal).
95. Operating since 1979, the local television station broadcasts talk shows and public service announcements in the Cree language as well.
96. Hunters had to leave areas fallow in order to allow the animals to replenish themselves. As they moved their families from one trapline to another, the hunters needed to coordinate their activities with othet families. Cooperation and consultation within the village were necessary for survival. See RONALD NIEZEN, DEFENDING THE LAND 16-17, 62 (1998).
97. The five affected native communities were the Cree Nations of Cross Lake, Split Lake, Norway House, York Landing, and Nelson House.
98. The 1992 Report states, "[w]e found no evidence that a comprehensive environmental impact assessment had ever been performed. We believe that such an assessment is essential for NFA implemenration. . . ." OFFICE OF THE AUDITOR GEN. OF CAN., 1992 REPORT OF THE AUDITOR GENERAL OF CANADA § 15.118, at 377, available at http://www.oag-bvg.gc.ca/domino/reports.nsf/html/ ch9215e.html [hereinafter 1992 AUDITOR GENERAL REPORT]. The 1996 Final Report states, "Although the [Churchill River Diversion] project directly affected the lands and livelihood of five treaty communities, . . . they were not consulted, nor did they give their approval for the undertaking." 2 ROYAL COMM'N ON ABORIGINAL PEOPLES ("RCAP"), REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES 516 (1996).
99. PATRICIA M. LARCOMBE COBB, ROYAL COMMISSION ON ABORIGINAL PEOPLES LAND, RESOURCE, AND ENVIRONMENTAL REGIMES PROJECT, THE NORTHERN FLOOD AGREEMENT: THE IMPLEMENTATION OF LAND, RESOURCE, AND ENVIRONMENTAL REGIMES IN A TREATY AREA § 3.5.2 (1995). The flooding was unexpected given that "the Premier repeatedly stated that the project would not result in any reserve flooding." Id. The Federal government misled the Cree regarding the expected effects of the project. The "Lime Green Brochure" (information bulletin) distributed by the Canadian government in 1975 states that there were no unexpected long term effects and that it was "hoped that conditions [would] be such that it [would] be unnecessary to pay compensation to anyone." Gov't of Can., Lime Green Brochure (1975), quoted in AITCHISON ET AL., supra note 71, at 11).
100. As a result of these physical and biological changes, there has been "a systemic degradation of rhe local economy." Id. at § 2.5.3. For a derailed list of the adverse effects of the projecr, see 1992 AUDITOR GENERAL REPORT, supra nore 79, at 372.
101. Luke Hertlein, Lake Winnipeg Regulation Churchill-Nelson River Diversion Project in the Crees of Northern Manitoba, Canada 8 (Wotld Comm'n on Dams, Thematic Review 1.2: Dams, Indigenous People and Vulnerable Ethnic Minorities, 1999), available at http://www.dams.org/docs/kbase/contrib/ soc205.pdf.
102. Id.
103. Ronald Niezen, Treaty Violations and the Hydro-Payment Rebellion of Cross Lake, Manitoba, 23 CULTURAL SURVIVAL Q. 18, 19 (1999).
104. COBB, supra note 80, at § 3.1.
105. Id. at § 3.9.
106. Id. at §§ 3.9, 4.2.1, 4.2.2, 5.4, 5.5.3.
107. Treaty No. 5 Between Her Majesty the Queen and the Saulteaux and Swampy Cree Tribes of Indians, 1875, available at http://www.ainc-inac.gc.ca/pr/ trts/trty5_e.html. In exchange for giving up rheir rights to huge tracts of land in northern Manitoba, the treaty provides reserve lands of not more than 160 acres per family of five, an annual paymenr of five dollars for each band member, and legal protection of the tribes' water, fishing, trapping, and hunting rights.
108. Northern Flood Agreement art. 25, Dec. 16, 1977, available at http://www.nfa-arb.org/agmnt/art25.
109. Northern Flood Agreement Schedule E, Dec. 16, 1977, available at http://www.nfa-arb.org/agmnt/sched_e.
110. Indian Act, 1876 S.C., ch. 18 (Can.).
111. Id. at § 61.
112. Id.
113. Indian Act, 1951 S.C., ch. 29 (Can.).
114. Indian Act, R.S.C., ch. 1-5 (1985) (Can.). Status Indians are those who are registered with the federal government as Indians according to the terms of the Indian Act. Before the 1995 amendment, the Indian Act only removed Indian status from Indian women who married non-Indians and their children. In the reverse situation, when Indian men married non-Indian women, the Indian men and their children could still hold Indian status.
115. Constitution Act, 1982, pt. I, ch. 11 (U.K.), as reprinted in R.S.C., No. 44 (Appendix 1985).
116. HOUSE OF COMMONS, SPECIAL COMMITTEE ON INDIAN SELF-GOVERNMENT, INDIAN SELF-GOVERNMENT IN CANADA: REPORT OF THE SPECIAL COMMITTEE 32 (1983).
117. GOV'T OF CAN., INHERENT RIGHT OF SELF-GOVERNMENT POLICY (1995).
118. The 1996 Report states, "[The NFA's] history has been marked by little or no action in implementation of NFA obligations and a long, drawn out (and continuing) process of arbitration to force governments to implement their obligations." RCAP, supra note 79, at 517.
119. AITCHINSON ET AL., supra note 71, at 23.
120. COBB, supra note 80, at § 7.1.
121. In March 1999, Warren Allmand, the federal Minister of Indian Affairs who negotiated the NFA in 1977, stated to a parliamentary committee: "Last year, much to my dismay, I discovered that the great majority of the Northern Flood Agreement was never implemented. After twenty-one years, virtually nothing had been done." Allmand also suspected that at some point, governments "came to the conclusion that they didn't like the Northern Flood Agreement, that maybe it had too many obligations, it was too rich and they decided they would try to get something better in its place - [the Comprehensive Implementation Agreements]." Standing Committee on Aboriginal Affairs and Northern Development, House of Commons (Mar. 9, 1999) (statement of Warren Allmand, former federal Minister of Indian Affairs), available at http://cmte.parl.gc.ca/Content/HOC/committee/361/aand/evidence/ev1039313/ aandev52-e.htm.
122. 1992 AUDITOR GENERAL REPORT, supra note 79, at 139; AITCHINSON ET AL., supra note 71, at 18.
123. The United States similarly tried to compensate American Indian tribes with monetary payments in the 1946 Indian Claims Commission Act, 25 U.S.C. §§ 70-70w (1976) (repealed 1978). This policy was intended to overcome procedural and financial obstacles in the way of Indian tribes seeking resritution for grievances against the United States. In repaying tribes for historical abuses, the Indian Claims Commission also attempted to extinguish long-standing Indian rights.
124. There were earlier attempts, beginning in 1985, to extinguish the NFA by offering cash settlements, but they were rejecred. See NIEZEN, supra note 73, at 68.
125. However, the federally-administered process by which the agreements were ratified casts serious doubt on the credibility and legitimacy of the settlement. In Norway House, for instance, although an initial referendum on the CIA failed, the government administered a repeat vote only two months later. Ir relaxed rhe criteria for approval and promised monetary payments to each community member who voted for the settlement deal, which was finally approved. See AITCHINSON ET AL., supra note 71, at 66.
126. Interview with Gerald Frogg, Resident of Pimicikamak Cree Nation, in Cross Lake, Manitoba (July 25, 1999).
127. See AITCHINSON ET AL., supra note 71, at 66. There were also allegations of "arbitrary changes to locations and hours of polling stations, intimidation of voters, insufficient and inaccurate communication about the diffetence between the NFA and the MIA [Master Implementation Agreement, which is another name for the CIA], . . . withholding the per capita payments to MIA opponents, and arrests of Band members legitimately seeking to communicate their opinions." Id.
128. Former Norway House Cree Chief Allan Ross, Srarement to the Interchurch Inquiry into Northern Hydro Development (June 21, 1999) (on file with Harvard Internarional Law Journal).
129. Id.
130. Roland Robinson, Broken Promises Litter Northern Hydro Treaty, WINNIPEG FREE PRESS, July 14, 1998, at A11.
131. Chief John Miswagon, Speech to the Frontier Center for Public Policy: A Government of Our Own (Apr. 21, 2005).
132. Former Cross Lake Cree Chief Roland Robinson, Statement to the Interchurch Inquiry into Northern Hydro Development (June 25, 1999).
133. Robinson, supra note 111.
134. Niezen, supra note 84, at 21.
135. See NIEZEN, supra note 73, at 170-71 ("The exercise of inherent legal authority is . . . not only an assertion of self-determination but also parr of a process of reconstituting sovereignty, of indigenous nation building.").
136. The Pimicikamak Cree's use of the "politics of embarrassment" was modeled after the campaign against hydroelectric development by the James Bay Cree of Quebec. Beginning in the early 1990s, the James Bay Cree successfully campaigned against the construction of the Great Whale hydroelectric project. Their international lobbying efforts aimed to bring "to the attention of a largely sympathetic audience of voting constituents, the injustice, bigotry, and impact of the government's negligence on the living conditions in native communities." Niezen, supra note 84, at 5.
137. Pimicikamak Cree Nation, A New Relationship (Jan. 1999) (on file with Harvard International Law Journal). This working paper, drafted in January 1999, is a 32-page booklet that proposes a new relationship berween the Cree and the Crown parties. Based on communiry discussions within circle groups and general assemblies, the paper outlines principles and structures for the implementation of the NFA in a manner that respects Cree laws, traditions, and rights.
138. Id. at 2.
139. See U.N. Charter art. 1, para. 2; Inrernational Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights art. 1, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
140. Will Braun, Manitoba Aboriginal Rights Coalition Information Sheet, "Cross-Border Kilowatts, Indians, and Human Rights" (Sept. 10, 1999), available at http://www.alphacdc.com/treaty/pmicikamak.html.
141. NIEZEN, supra note 73, at 181.
142. Id.
143. See Grand Council of the Crees, About the Grand Council of the Crees (Eeyou Istchee), http://www.gcc.ca/gcc/whogcc.htm (last visited Mar. 16, 2007).
144. Grand Council of the Cree, supra note 72.
145. Concluding Observations of the U.N. Committee on Economic, Social, and Cultural Rights, ¶ 18, U.N. Doc. E/C.12/1Add.31 (Dec. 10, 1998) [hereinafter CESCR]. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948); ICESCR, supra note 120; ICCPR, supra note 120; Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty, Dec. 15, 1989, 1642 U.N.T.S. 414. The Canadian government signed and ratified the international human rights covenants in 1975, one year before signing rhe NFA.
146. Helen Branswell, U.N. Report Card Flunks Canada for Social Injustice, CANADIAN PRESS, Dec. 4, 1998, at A9.
147. U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Canada, U.N. Doc. CCPR/C/79/Add.105 (Apr. 7, 1999).
148. See Allison Bray, Nurse Shortage Shuts Northern Health Centre, WINNIPEG FREE PRESS, Sept. 17, 1999, at A9. The shortage of nurses is based on Health Canada's formula for the number of nurses that are needed for a community the size of Cross Lake. There is no hospital in the community, only a nurse's srarion. Anyone in need of serious medical attention must travel to Winnipeg, which is very expensive for most residents.
149. The formal presentation occurred at the WHO's first International Consultation on the Health of Indigenous Peoples, Geneva, November 23-26, 1999.
150. Article 1 of the U.N. International Covenant on Economic, Social and Cultural Rights includes a people's right to self-determination and to its own means of subsistence. Article 2 notes a country's obligation to guaranree the enunciated human tights without discrimination as to race, color, etc. Article 12 recognizes the right to health and health care. ICESCR, supra note 120, arts. 1, 2, 12.
151. NIEZEN, supra note 73, at 181.
152. Transnational advocacy networks are "organized to promote causes, principled ideas, and norms" across borders. KECK & SIKKINK, supra note 6, at 8.
153. Id. at 10.
154. Id. at 12.
155. Sally Engle Merry, Legal Pluralism and Transnational Culture: The Ka Ho'okolokolonui Kanaka Maoli Tribunal, Hawai'i, 1993, in HUMAN RIGHTS, CULTURE, AND CONTEXT: ANTHROPOLOGICAL PERSPECTIVES 28, 29 (Richard A. Wilson ed., 1997).
156. Jean Comaroff & John L. Comaroff, Millennial Capitalism: First Thoughts on a Second Coming, 12 PUB. CULTURE 291, 328 (2000).
157. James Tully, The Struggles of Indigenous Peoples for and of Freedom, in POLITICAL THEORY AND THE RIGHTS OF INDIGENOUS PEOPLES 36, 51 (Duncan Ivison et al. eds., 2000).
158. NIEZEN, supra note 73, at 181.
159. Id.
160. See id. at 149.
161. ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Working Group on Indigenous Populations, Draft Declaration on the Rights of Indigenous Peoples, art. 3, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (Aug. 26, 1994). The U.N. Draft Declaration on the Rights of Indigenous Peoples is a statement of international human rights standards concerning indigenous peoples. Formulated by the U.N. Working Group on Indigenous Populations, the Draft Declaration is the product of over eighr years of extensive deliberarions by indigenous peoples and U.N. experts.
162. See ANAYA, supra note 1, at 80-88. There are some indigenous peoples that do favor secession as an application of their right to self-determination. For example, the Mohawk Nation asserts its right to statehood and refuses to acknowledge Canada's sovereignty over its territory.
163. For a discussion of rhis interpretation of self-determination, see Iris M. Young, Two Concepts of Self-Determination, in HUMAN RIGHTS: CONCEPTS, CONTESTS, CONTINGENCIES 25, 40 (Austin Sarat & Thomas R. Kearns eds., 2001).
164. S. James Anaya, The Capacity of International Law to Advance Ethnic or Nationality Rights Claims, 75 IOWA L. REV. 837, 842 (1990).
165. ANAYA, supra note 1, at 81.
166. Id.
167. S. James Anaya, Self-Determination as a Collective Human Right Under Contemporary International Law, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF- DETERMINATION 3 (Pekka Aikio & Martin Scheinin eds., 2000).
168. Benedict Kingsbury, Reconstructing Self-Determination: A Relational Approach, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION, supra note 148, at 34.
169. HECTOR DÍAZ POLANCO, INDIGENOUS PEOPLES IN LATIN AMERICA: THE QUEST FOR SELF-DETERMINATION 95 (Lucia Rayas trans., 1997).
170. Sustaining Healthy Communities in the Transition from Modernization to Globalization: Resource Development and Social Capital Formation in Northern Manitoba, 1960s to present, http://www.sfu.ca/igs/netherton.html (last visited Apr. 3, 2007).
171. Pimicikamak Cree Nation, supra note 118, at 22.
172. Interview wirh Raymond Robinson, Former Director of Economic Developmenr, Pimicikamak Cree Nation, in Cross Lake, Manitoba (Aug. 6, 1999).
173. Interview with Datwin Paupanekis, Resident of Pimicikamak Cree Nation, in Cross Lake, Manitoba Only 13, 1999).
174. AWASIS AGENCY OF N. MANITOBA, FIRST NATIONS FAMILY JUSTICE 37 (1997). This was distribured as a booklet on August 12, 1999, during the Women Wellness Healing Conference, Cross Lake.
175. Id. at 36-37.
176. Id. Author Transliterated these terms for justice from the original Cree language which, along with English, is widely spoken in Cross Lake.
177. Ronald Niezen, Speech at the Interchurch Inquiry into Northern Hydro Developmenr (June 22, 1999).
178. 20 THE OXFORD ENGLISH DICTIONARY 136 (2d ed. 1989).
179. Tom Tso, The Navajo Concept of Justice, 6 LAW & ANTHROPOLOGY 1, 2 (1991).
180. The development of A New Relationship, the Pimicikamak Cree Nation's working paper on NFA implementation and self-government, also utilized methods of consensus decision-making, including "written communications, phone calls and verbal messages, Circle Groups, general assemblies, TV call-in programs, and a 'did we get it right' check before it was finalized." Pimicikamak Cree Nation, supra note 118, at 1.
181. Miswagon, supra note 112.
182. Paupanekis, supra note 154. Darwin Paupanekis also noted the possible dangers of writing one's laws down: "When you start writing things down, you're subject to criticism and outside challenges. When you start challenging things, you start breaking that supreme law of respect that governs relations." Id.
183. Interview with Sandy Beardy, Former Chief, Pimicikamak Cree Nation Council of Elders, in Cross Lake, Manitoba (July 20, 1999).
184. PIMICIKAMAK CREE NATION, THE FIRST WRITTEN LAW (1996).
185. Pimicikamak Cree Nation, supra note 118, at 9.
186. Id.
187. Pimicikamak Cree Nation, supra note 118, at 9.
188. Miswagon, supra note 112.
189. See PIMICIKAMAK CREE NATION, PIMICIKAMAK CREE NATION LAWS (on file with author).
190. Corbiere v. Canada, [1999] 2 S.C.R. 203 (Can.). This case struck down provisions of the Indian Act's section 77(1) and held that members of Indian bands who live off-reserve have the right to vote in on-reserve elecrions. In accordance with this decision, the Cree Citizenship Law broadened the Indian Act definition of a band member to include off-reserve Indians, thus making them eligible to vote in elections and run for office.
191. ICCPR, supra note 120, art. 1, paras. 1 & 3; ICESCR, supra note 120, art. 1, paras. 1, 3.
192. PIMICIKAMAK CREE NATION, supra note 165.
193. Pimicikamak Cree Nation, supra note 118, at 9-10.
194. Id.
195. Interview with Rita Monias, Spokesperson, Pimicikamak Cree Nation's Women's Council, in Cross Lake, Manitoba (June 30, 1999).
196. Id.
197. Women also participate in the other three councils.