Expert Mechanism on the Rights of Indigenous Peoples
7–11 July 2014
Item 5 of the provisional agenda
Continuation of the study on access to justice in the promotion and protection of the rights of Indigenous peoples
Joint Statement of the Grand Council of the Crees (Eeyou Istchee); Canadian Friends Service Committee (Quakers); Assembly of First Nations; Assemblée des Premières Nations du Québec et Labrador/Assembly of First Nations of Quebec and Labrador; Chiefs of Ontario; Federation of Saskatchewan Indian Nations; First Nations Summit; First Peoples Human Rights Coalition; Indigenous Rights Centre; Indigenous World Association; Inuit Circumpolar Council; KAIROS: Canadian Ecumenical Justice Initiatives; Native Women’s Association of Canada; Union of British Columbia Indian Chiefs
Speaker: Paul Joffe, Grand Council of the Crees (Eeyou Istchee)
Thank you for the opportunity to address the continuation of the study on access to justice in the promotion and protection of the rights of indigenous peoples.
This statement highlights i) Supreme Court of Canada decision in Tsilhqot’in Nation v. British Columbia; ii) redress for dispossession of lands, territories and resources; and iii) James Bay Cree justice program.
Access to justice is often assessed in terms of the availability of both judicial and non-judicial remedies. Remedies become illusory if they are not accessible. The Supreme Court of Canada has ruled: “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.”
i) Landmark Supreme Court Decision in Tsilhqot’in Nation v. British Columbia
The Tsilhqot’in Nation decision by Canada’s highest court is a precedent-setting decision relating to Aboriginal or Indigenous title. The Supreme Court issued a unanimous ruling in favour of the Tsilhqot’in. We convey our heartfelt congratulations to the Tsilhqot’in Nation for their courage, determination and perseverance in obtaining this judicial victory.
This struggle began 31 years ago, when the British Columbia government granted “a forest licence to cut trees in part of the territory at issue”. The Supreme Court ruled that the Province failed to consult the Tsilhqot’in on uses of the lands and accommodate their interests and, therefore, breached its constitutional and procedural duty to the Tsilhqot’in. The Province failed to uphold the honour of the Crown.
Throughout Canada’s history, no Aboriginal people has ever been successful in proving Aboriginal title in a domestic court. In 2002 and 2007, the UN Committee on the Elimination of Racial Discrimination conveyed its concern to Canada and urged the government to take steps to facilitate proof of such title before the courts. However, the Canadian and British Columbia government continued to take strong adversarial positions against a territorial approach to title.
The Supreme Court confirmed that “regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources” could suffice to establish Aboriginal title based on a territorial approach. The Court ruled that Aboriginal title confers ownership rights including “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”
These are essential elements of the collective human right of Indigenous peoples to self-determination, including self-government, and their right to development.
The “right to control the land” conferred by Aboriginal title means that “governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.” Incursions on title lands are permitted only with the consent of the Indigenous nation or group, or if they are justified by a compelling and substantial public purpose. Such intrusions must be consistent with the Crown’s fiduciary duty to the Aboriginal group. A “compelling and substantial purpose” “must be considered from the Aboriginal perspective as well as from the perspective of the broader public”.
The Court also underlined that collective Aboriginal title is “held not only for the present generation but for all succeeding generations” and it “cannot be … encumbered in ways that would prevent future generations of the group from using and enjoying it.” “What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.”
In regard to remedies, the Court ruled that if the Crown were to begin a project without consent, prior to Aboriginal title being established, it may have to cancel the project if title is established and if the project would be unjustifiably infringing on title rights. The Court confirmed a similar approach to legislation, even if validly enacted before title was established.
ii) Redress for dispossession of lands, territories and resources
Globally Indigenous peoples have been dispossessed of their lands, territories and resources. Such dispossessions have severe consequences for present and future generations, including impoverishment, discrimination, denial of self-determination and self-government, marginalization, forced assimilation and destruction of culture.
The UN Declaration on the Rights of Indigenous Peoples calls for effective mechanisms for prevention of, and redress from such dispossession. Access to justice must include processes or mechanisms for redress, including restitution.
In this regard, we wish to draw your attention to the 2014 study on the doctrine of discovery issued by the UN Permanent Forum on Indigenous Issues:
Within existing States, the key issues urgently requiring resolution are those relating to making jurisdictional space for indigenous sovereignty and self-determination, including the effective operation of distinct indigenous legal orders over their territories. (para. 23)
Processes and mechanisms of redress, as well as independent oversight, are required at international, regional and domestic levels. Decolonization processes must be devised in conjunction with indigenous peoples concerned and compatible with their perspectives and approaches. Such processes must be fair, impartial, open and transparent, and be consistent with the Declaration and other international human rights standards. (para. 34)
Such processes should encourage peace and harmonious and cooperative relations between States and indigenous peoples. Where desired by indigenous peoples, constitutional space must be ensured for indigenous peoples’ sovereignty, jurisdiction and legal orders. (para. 35)
iii) James Bay Cree Justice Program
Finally, we would like to share a leading example of good practice in the restorative justice context. In 1975, the Grand Council of the Crees (Eeyou Istchee) negotiated administration of justice provisions in the James Bay and Northern Quebec Agreement. In 2007, the principles and framework of Cree justice and corrections systems were reaffirmed and expanded upon in a new Justice Agreement with the Province of Québec.
Today, the Department of Justice and Correctional Services (DOCJS) under the Cree Nation Government develops, integrates and maintains Cree values, culture, traditions and language in the provincial and federal juridical and corrections systems. A fundamental principle of justice is that it should represent the people it seeks to serve. Therefore, the Cree systems begin with recognition of Cree collective rights, obligations and interests, and the value of community. Community tribunals of Elders, men, women and youth have the authority to hear a wide variety of cases locally. Courtrooms are made round to reflect the Cree culture and importance of being inclusive in decisions that can impact members, as well as broader groups within Cree society. Eeyou Istchee (the land) is used in restorative justice programming with youth, and in rehabilitation for members returning from detention, to heal, learn and grow through reconnecting with their traditions, culture and language.
It is with the assertion and understanding that an Indigenous group is in the best position to serve, communicate and work with its own people, and it will be within their societies, communities and families they eventually integrate back into. In working with issues such as domestic violence that disproportionately affects women and children, the DOJCS has hosted conferences, studies and working groups leading to the creation of new programs, offices for victims’ services, and the creation of two regional women’s shelters that integrate culture and focus on protecting and healing families.
The majority of staff are trained in mediation, facilitation and conciliation and establish mechanisms that integrate Cree culture and values when dealing with conflict locally, or working in the juridical systems. When looking at the overall objectives of a traditional or restorative justice approach, the DOJCS decided to develop programs focusing on high risk youth and children. The program is highly successful, and impacts a whole Nation of children and community members. The Indigenous philosophy of helping children at an earlier age to grow strong in values, traditions, culture, and knowledge has proved an incredible learning experience for both the children and DOJCS staff.
Recommendations to EMRIP
1. The United Nations Declaration on the Rights of Indigenous Peoples constitutes a principled framework for justice, reconciliation, healing and peace. It is crucial that States, in collaboration with Indigenous peoples, integrate the Declaration at legislative and policy levels to protect and promote Indigenous peoples’ right to access to justice.
2. States must cease invoking extreme arguments and aggressive procedures in judicial and administrative processes, so as to deny Indigenous peoples their human rights. Such actions deprive them of access to justice and their right to an effective remedy.
3. Access to justice must include processes or mechanisms for redress, including restitution. Decolonization processes must be devised in conjunction with indigenous peoples concerned and be compatible with their perspectives and approaches. Such processes must be fair, impartial, open and transparent, and be consistent with the UN Declaration and other international human rights standards. Peace and harmonious and cooperative relations must be encouraged between States and indigenous peoples.
4. In promoting effective restorative justice systems, it is important to recognize that Indigenous peoples are in the best position to serve, communicate and work with their own people in accordance with their own perspectives, legal systems and institutions. It will be within their societies, communities and families that high risk youth and children eventually integrate. In working with issues such as domestic violence that disproportionately affects women and children, it is important to not only provide shelters but also integrate culture and focus on protecting and healing families.
For the references in this joint statement – download it in PDF.
More public statements on Indigenous rights
More about our Indigenous rights work at international forums
Joint statement of Canadian Friends Service Committee and Amnesty International Canada
Amnesty International Canada and Canadian Friends Service Committee (Quakers) extend our congratulations to the Tsilhqot’in people in their historic victory for the rights of Indigenous peoples.
In an unanimous decision released this morning, the Supreme Court of Canada recognized the right of the Tsilhqot’in people to own, control and enjoy the benefits of approximately 2,000 km2 of land at the heart of their traditional territory in central British Columbia.
Today’s decision marks the first time that a Canadian court has awarded land ownership to a particular First Nation, rather than relying solely on negotiations between Canada and First Nations to resolve outstanding title disputes. In doing so, the Court also firmly rejected the federal and provincial governments’ position that Indigenous title should be restricted to small tracts of land under continuous, intensive use.
Responding to the decision, the Tsilhqot’in Nation said today, “The Supreme Court of Canada’s ruling ends a long history of denial and sets the stage of recognition of Aboriginal title in its full form.”
Our organizations made formal interventions in the Tsilhqot’in title case to encourage the Court to adopt an approach to Indigenous land rights that would be consistent with international human rights standards, including the United Nations Declaration on the Rights of Indigenous Peoples.
We strongly agree with the Court’s statement that, “What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.”
We welcome the Court’s affirmation that Indigenous peoples’ rights to own and control lands should be on a broad, territorial basis, which is necessary to ensure the health of their cultures and economies. We also welcome the cautionary message that the Court sent to governments and private developers looking to push ahead with projects in lands where, like much of BC, the issue of Indigenous title has not yet been resolved.
In its decision the Court advised, “Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”
We will be commenting further on this decision once we have had the opportunity to review it in greater depth.
Download this joint statement in PDF.
Canada’s failure to uphold the human rights of Indigenous peoples in its approval of Northern Gateway
BC Assembly of First Nations, First Nations Summit, Union of BC Indian Chiefs, Amnesty International Canada, Canadian Friends Service Committee (Quakers), Chiefs of Ontario, Federation of Saskatchewan Indian Nations, Grand Council of the Crees (Eeyou Istchee), Indigenous Rights Centre, Indigenous World Association, and KAIROS: Canadian Ecumenical Justice Initiatives
The overall process surrounding the proposed Northern Gateway pipeline has failed to respect and protect the human rights of Indigenous peoples whose lands and waters would be affected by the project. Having reviewed the environmental impact assessment and the positions taken by affected First Nations, as well as the federal and provincial governments, our organizations conclude that this week’s conditional approval of the project by the federal government violates Canada’s legal obligations under both domestic and international law. Unfortunately, these serious concerns were only minimally addressed in the federally commissioned Eyford Report on the broader issue of West Coast energy infrastructure.
In a Joint Submission to the federal government this March, our organizations pointed out that large-scale resource development and infrastructure projects can have significant impacts on a wide range of human rights. These include rights to health and a healthy environment, the right to culture, the right to equality, the right to livelihood, and Indigenous peoples’ rights to self-determination and to use, control and benefit from their lands, territories and resources.
In decisions potentially affecting the rights of Indigenous peoples, special measures are required. Increased rigor must be applied because Indigenous peoples face a greater risk of harm due to the largely unaddressed legacy of rights violations and ongoing impoverishment and marginalization. Indigenous peoples’ rights are not a barrier to economic development. They provide a principled framework to ensure that development will be carried out sustainably and will benefit Indigenous peoples, rather than compounding injustices they have experienced.
The environmental impact assessment of the proposed Northern Gateway pipeline did not consider fundamental aspects of Indigenous peoples’ rights, such as their title to affected lands – rights that would include the “right to exclusive use and occupation of land” and the “right to choose to what uses land can be put”. Such matters were specifically excluded from the Joint Review Panel’s mandate.
During the review process, the federal government assured the Panel that it would consult with Indigenous peoples on their rights before giving the project final approval. Having failed to do so, the federal government has now called on the project proponent to carry out further consultation as a condition of the government’s approval of the project. It is the Crown alone that has the Constitutional duty to consult and accommodate Aboriginal peoples in regard to their rights and titles. It is unclear how meaningful, good faith consultation can take place at this point.
A series of Supreme Court decisions has established a Crown duty to consult with Indigenous peoples whenever considering action that might have an impact on their rights and interests. The objective of such consultation is to ensure that Indigenous peoples’ concerns are “substantially” addressed in a timely manner and not after the decision is made. Even before announcing approval of the project, federal ministers had already virtually declared that the government was determined to proceed with the project.
The Prime Minister’s special representative on west coast energy infrastructure noted that the Northern Gateway Review Panel did not address Aboriginal concerns. Douglas Eyford also criticized Canada’s approach to consultation, calling on the federal government to consider “early engagement to address Aboriginal interests” that may not be dealt with in a regulatory process.
Critically, however, when dealing with projects on the scale of the Northern Gateway proposal, the government’s obligations go beyond consultation. As described by the Supreme Court of Canada, the Constitutional protection of Indigenous rights requires “full consent of [the] aboriginal nation on very serious issues. This applies as much to unresolved claims as to intrusions on settled claims.”
International human rights standards, as set out in the United Nations Declaration on the Rights of Indigenous Peoples and the rulings of regional and international human rights bodies, also require a high standard of precaution in all decisions affecting Indigenous peoples’ rights and their lands, territories and resources. In many instances, the standard required is that projects should proceed only with the free, prior and informed consent (FPIC) of Indigenous peoples.
The UN Special Rapporteur on the Rights of Indigenous Peoples concluded in 2013:
Indigenous peoples’ free, prior and informed consent is required, as a general rule, when extractive activities are carried out within indigenous territories. Indigenous consent may also be required when extractive activities otherwise affect indigenous peoples, depending on the nature of the activities and their potential impact on the exercise of indigenous peoples’ rights.
Canadian courts have made clear that international human rights standards are “relevant and persuasive” sources of interpretation of domestic legal requirements. It is presumed that courts will interpret Canadian laws in conformity with international standards. Courts have already relied upon the UN Declaration in interpreting Canadian law.
The federal government also acknowledges that the regulation of resource development should comply with international human rights standards. The Cabinet Directive on Regulatory Management states, “Departments and agencies are to respect Canada’s international obligations in areas such as human rights, health, safety, security, international trade, and the environment. They are also to implement provisions related to these obligations at all stages of regulatory activity, including consultation and notification, as applicable.”
The need to obtain the free, prior informed consent of Indigenous peoples is not diminished by court statements that Indigenous peoples do not have a “veto.” A “veto” is absolute, arbitrary and unilateral. In contrast, whether as a precautionary measure or as an expression of Indigenous peoples’ right to self-determination and ownership of their lands, FPIC is founded on legally-recognized rights and the risks that these rights could be harmed. As a standard of Canadian and international law, assertions of FPIC are also subject to review by Canadian courts and international human rights bodies.
The federal government has not responded to our Joint Submission and has not taken a human rights-based approach. Canadians concerned about government compliance with domestic and international human rights standards are encouraged to read the joint submission.
Download this statement in PDF for the references in this article.
“The Duty to Consult, Aboriginal Communities, and the Canadian Natural Resource Sector”: A Flawed Analysis by Dwight Newman
May 27, 2014
For the references in this article download the PDF version.
In May 2014, the Macdonald-Laurier Institute (MLI) published a paper by Professor Dwight Newman The Rule and Role of Law: The Duty to Consult, Aboriginal Communities, and the Canadian Natural Resource Sector.
MLI describes itself as “independent and non-partisan … prodding governments, opinion leaders and the general public to accept nothing but the very best public policy solutions for the challenges Canada faces.” Yet to a large degree, this paper does not exhibit these attributes. The analysis in Professor Newman’s paper is seriously flawed. The legal foundation and framework relating to Indigenous peoples’ rights and titles are inadequately described and taken into account. As a result, arguments are skewed in favour of non-Indigenous governments and resource development proponents.
Key issues and concerns are illustrated below.
1. Indigenous peoples’ rights not described as inherent. In addressing the Crown’s duty to consult Indigenous peoples on the rights in s. 35 of the Constitution Act, 1982, Professor Newman fails to indicate that Aboriginal rights are inherent or pre-existing as affirmed by Canada’s highest court. The United Nations Declaration on the Rights of Indigenous Peoples [“UNDRIP”] also affirms that Indigenous peoples’ rights are inherent.
2. Indigenous peoples’ “title” to lands, territories and resources not addressed. “Aboriginal rights” can include “title” and the paper should have explicitly considered this important aspect. The real and potential impacts of resource development on Aboriginal title may differ significantly from those on specific rights.
3. Indigenous peoples’ rights in s. 35 continue to evolve. The Supreme Court ruled that “the constitutionalization of common law aboriginal rights by s. 35(1) does not mean that those rights exhaust the content of s. 35(1).” The paper fails to mention this. Instead, Professor Newman recommends: “courts should be very cautious about continuing to expand the duty to consult doctrine into new contexts. Courts need to leave flexibility for governments to design appropriate procedures for complex scenarios … Vital transportation infrastructure, such as new pipelines, depends upon all taking reasonable approaches.” (p. 2)
4. “Progressive” interpretation of Canada’s Constitution not encouraged. The paper fails to consider that the Constitution is “a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life”. UNDRIP is such a reality. It represents “an authoritative common understanding, at the global level, of the minimum content of the rights of indigenous peoples, upon a foundation of various sources of international human rights law.” UNDRIP calls for “a large and liberal, or progressive, interpretation” of the Constitution so as to ensure its “continued relevance and, indeed, legitimacy”.
5. Indigenous peoples’ rights as human rights should have been considered. Indigenous peoples’ collective rights are human rights and are addressed as such in international and regional human rights systems. In particular, property rights to lands and resources are recognized as human rights in international law. Thus, in addressing Indigenous peoples’ rights, it is important to take a human rights-based approach. Professor Newman makes no mention whatsoever of “human rights”.
6. UNDRIP is an important source for interpreting Indigenous rights. UNDRIP is a consensus, universal human rights instrument. No country in the world formally opposes it. Declarations and other international instruments, as well as customary international law, are “relevant and persuasive” sources for interpreting human rights and related State obligations in Canada. Canadian courts are using UNDRIP for such purposes. Yet Professor Newman’s paper discourages courts from using UNDRIP to interpret the Crown’s duty to consult, claiming that “extending [the duty’s] technical legal applications can create problems.” (p. 20)
7. UNDRIP has essential role in the context of resource development. The “Guiding Principles on Business and Human Rights”, adopted by the UN Human Rights Council, affirm that business enterprises have a responsibility to respect “internationally recognized human rights”. The commentary in the Guiding Principles emphasizes that consideration be given to UN instruments that have elaborated on the rights of Indigenous peoples. This clearly includes UNDRIP, especially since “overwhelming support by the UN General Assembly leads to an expectation of maximum compliance”. The UN Global Compact has produced an in-depth “Business Reference Guide” in regard to UNDRIP. Professor Newman’s paper is regressive in not integrating the international human rights of Indigenous peoples and UNDRIP.
8. Principles of good governance are relevant. In regard to the Canadian Charter of Rights and Freedoms, the Supreme Court ruled: “Compliance with Charter standards is a foundational principle of good governance.” The same rule must apply to the human rights of Indigenous peoples in s. 35 of the Constitution Act, 1982. In the 2011 Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, there are numerous references to good governance. Yet Professor Newman does not consider principles of good governance, which are among the core principles in UNDRIP.
9. Right to give or withhold “consent” not synonymous with “veto”. The term “veto” may imply an absolute right to block a proposed development regardless of the facts and law in any given case. In contrast, Indigenous consent in international and Canadian law is neither arbitrary nor absolute, but responds to the rights at stake and the potential for harm. The Supreme Court of Canada ruled that – at the high end of the consultation spectrum – the Crown’s duty to consult would require the “‘full consent of [the] aboriginal nation …’ on very serious issues”. The Special Rapporteur on the rights of indigenous peoples, James Anaya, has concluded: “Indigenous peoples’ free, prior and informed consent is required, as a general rule, when extractive activities are carried out within indigenous territories.” Anaya adds: “The general rule identified here derives from the character of free, prior and informed consent as a safeguard for the internationally recognized rights of indigenous peoples that are typically affected by extractive activities that occur within their territories.” Professor Newman never addressed “consent” in regard to the duty to consult or any other context.
10. “Veto” portrayed inaccurately. At p. 9, Newman indicates: “The courts have consistently reiterated that the duty to consult is not a legal veto power”. In support of this statement, Newman cites Haida Nation, para. 48. However, the Supreme Court referred to “veto” solely in the context of asserted Aboriginal rights but yet unproven. Where a strong prima facie case exists, the Supreme Court focused on finding interim solutions “pending final resolution”. The issue in such situations is not “veto”.
11. Indigenous peoples’ status and rights as self-determining “peoples” not considered. The right of Indigenous peoples to self-determination is a prerequisite to the enjoyment of all other human rights. It is “a foundational right, without which indigenous peoples’ human rights, both collective and individual, cannot be fully enjoyed.” In regard to the two international human rights Covenants, the right of self-determination – including the right to natural resources – has been applied to Indigenous peoples by UN human rights bodies. The right of self-determination includes “consent”. None of these considerations are included in Professor Newman’s analysis.
12. Underlying constitutional principles are relevant in interpreting Aboriginal and treaty rights. Such principles, often unwritten, are “invested with a powerful normative force, and are binding upon both courts and governments”. These principles “dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.” Such principles include: federalism, democracy, the rule of law, and respect for minority rights. A further underlying principle is “respect for human rights and freedoms”. “These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.” “Protection of existing aboriginal and treaty rights” can be “looked at in their own right or as part of the larger concern with minorities”.
13. Federalism principle requires more than consultation. Indigenous peoples, as self-determining peoples, are an essential part of the principle of federalism. In this context, Indigenous peoples must be “endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority.” The three elements in Canada’s Constitution are federal, provincial and Aboriginal. The Supreme Court has emphasized: “Cooperation is the animating force” in the federalism principle and “nothing less”. In implementing the provisions in UNDRIP, States are required as a minimum standard to take measures “in consultation and cooperation” with Indigenous peoples.
14. Rule of law inadequately considered. Although the title of Professor Newman’s paper highlights the rule of law, the text only includes a single explicit reference. In international law, “human rights, the rule of law and democracy are interlinked and mutually reinforcing.” Such interrelationships are highly relevant to Aboriginal and treaty rights. For example, democracy is “fundamentally connected to substantive goals, most importantly, the promotion of self-government”.
Indigenous peoples’ rights are not a barrier to economic development. The rights of Indigenous peoples as protected in domestic and international law provide a principled, unbiased framework to ensure that development which does take place will be carried out sustainably and will benefit Indigenous peoples, rather than compounding the injustices they have experienced.
Once a month we collect and share some of the most important news and updates from our collective work for justice and peace. In the June e-news you’ll find:
- CFSC at UN Permanent Forum on Indigenous Issues;
- Synthetic biology;
- Children and family of the incarcerated;
- Ethical reflections on fracking;
- CFSC’s website spring cleaning;
- Quaker records now on Ancestry.ca; and
- International Conscientious Objectors Day.