Permanent Forum on Indigenous Issues
New York, 20 April-1 May 2015
Item 7 of the agenda
Human rights: (a) Implementation of the United Nations Declaration on the Rights of Indigenous Peoples (with specific focus on economic, social and cultural rights)
Speaker: National Chief Perry Bellegarde, Assembly of First Nations
Joint Statement of the Assembly of First Nations; Grand Council of the Crees (Eeyou Istchee); Amnesty International; Canadian Friends Service Committee (Quakers); Chiefs of Ontario; Congress of Aboriginal Peoples; First Nations Summit; First Peoples Human Rights Coalition; Indigenous World Association; KAIROS: Canadian Ecumenical Justice Initiatives; Native Women’s Association of Canada; Samson Cree Nation; Union of British Columbia Indian Chiefs.
The United Nations Declaration on the Rights of Indigenous Peoples constitutes a principled framework for justice, reconciliation, healing and peace. Former Special Rapporteur James Anaya has underlined that “implementation of the Declaration should be regarded as political, moral and, yes, legal imperative without qualification.”
Full and effective implementation of the UN Declaration is a critical objective that continues to have both international and domestic dimensions. It is imperative thatStates, UN bodies and specialized agencies, in conjunction with Indigenous Peoples, addressa wide range of challenges, consistent with a human rights-based approach.
There are significant achievements that we all celebrate. Regretfully, there are also substandard actions and omissions – as well as widespread human rights abuses – that serve to undermine Indigenous Peoples’ rights and the UN Declaration.
Such conduct often entails the very serious challenge of “rights ritualism”. This term can be understood as ”a way of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses” .
States often acknowledge to human rights bodies Indigenous Peoples’ rights and related State obligations. They alsomake positive statements in this Forum to indicate that Indigenous rights are a priority concern.Yet too often States’ positions and actions at home or in international negotiations contribute to undermining Indigenous peoples’ rights and the UN Declaration.
Some international agencies are taking seriously their commitments in the UN Declaration and other international human rights law. The UN Development Programme (UNDP) “will not participate in a Project that violates the human rights of indigenous peoples as affirmed by Applicable Law and the United Nations Declaration”. The UNDP affirms that the “term “indigenous peoples” refers to distinct collectives, regardless of the local, national and regional terms applied to them, who satisfy any of the more commonly accepted definitions of indigenous peoples.” The Food and Agriculture Organization (FAO) also applies broad criteria in relation to the term “Indigenous peoples”.
In contrast, in October 2014, the use of the term “peoples” was undermined at a Convention on Biological Diversity meeting in Korea. In seeking an informal response from the Office of Legal Affairs on the current use of the term “indigenous peoples”, the CBD Secretariat failed to provide essential documents, which would have been necessary for the Office to make an accurate assessment. The Conference of the Parties (COP) decided to use the term “Indigenous peoples and local communities” (instead of “Indigenous and local communities”) solely with the proviso that this change would have no legal effect whatsoever within the CBD now or in the future. Such action contradicts use of the term Indigenous “peoples” in the UN Declaration, the Outcome Document of the World Conference on Indigenous Peoples (WCIP) and other international law.
At the CBD meeting, Canada played a key role in opposing use of the term “peoples” – even though this term is enshrined in Canada’s Constitution and diverse federal legislation. States have no authority to restrict the status of Indigenous Peoples, in order to impair in any way theirright to self-determination or other human rights. Such actions constitute racial discrimination.
As we have discussed in previous years, there is an ongoing problem with States using procedural rules of international organizations to undermine Indigenous peoples’ human rights and evade related State responsibilities. Such violations of the rule of law run counter to the 2012 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels.
Bill C-641 and Canada’s “impossible” claims
In Canada a member of the official opposition has introduced a private member’s bill on the UN Declaration, Bill C-641 – United Nations Declaration on the Rights of Indigenous Peoples Act. The Bill calls on the government, in consultation and cooperation with Indigenous Peoples, to take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration.
This proposed legislation is consistent with the following commitment by States in the consensus WCIP Outcome Document:
We commit ourselves to taking, in consultation and cooperation with indigenous peoples, appropriate measures at the national level, including legislative, policy and administrative measures, to achieve the ends of the Declaration and to promote awareness of it among all sectors of society, including members of legislatures, the judiciary and the civil service.
This is consistent with the commitment of Canada’s Prime Minister in 2012: “And, of course, we endorsed the United Nations Declaration on the Rights of Indigenous Peoples. This reaffirms our aspiration and our determination to promote and protect the rights of indigenous people at home and abroad.”
However, the government of Canada opposes Bill C-641, claiming “this proposal is simply impossible to support in view of Canada’s existing legal and constitutional framework.” This contradicts the November 2010 endorsement of the Declaration, when the government concluded: “We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.”
The central objection of Canada is article 19 of the Declaration and “free, prior and informed consent” (FPIC).Canada states that article 19 “would provide first nations with a veto over any sort of legislation or development that concerns them”.
Government statements on C-641 follow a pattern when spokespersons are addressing the rights of Indigenous peoples. While claiming to support Aboriginal rights, the rhetoric is designed to alarm the public. Little regard is accorded to accuracy or justice.
The term veto is not used in the UN Declaration. Veto implies an absolute right or power to reject a law or development that concerns Indigenous peoples, regardless of the facts and law in any given situation. No balancing of rights would occur. No considerations of the rights of others or justice or non-discrimination or good governance would be permitted. Canada then further builds on this imagined frenzy of absolute power and declares:”it would be irresponsible to give any one group in Canada a veto”.
In rejecting Bill C-641, the federal government has failed to consider the landmark decision of the Supreme Court of Canada in Tsilhqot’in Nation. The Court repeatedly referred to the constitutional right of Aboriginal title holders to give or withhold consent. Such title holders have the right to use and control the land and enjoy its benefits. Such right to control “means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” (para. 76).
In Tsilhqot’in Nation, the Supreme Court ruled that, in the absence of Aboriginal consent, “legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.” (para. 92)
At the Committee on World Food Security in Rome last October, Canada would not accept a reference to FPIC without inserting a formal explanation of position in the consensus Report: “Canada interprets FPIC as calling for a process of meaningful consultation with indigenous peoples on issues of concern to them”. Such a view contradicts the policies of the Food and Agriculture Organization, as well as Supreme Court of Canada’s rulings that explicitly refer to “consent”.
In Tsilhqot’in Nation the Supreme Court highlighted Indigenous “consent” in 9 paragraphs; the “right to control” the land in 11 paras.; and the “right to determine” land uses in 2 paras. The Court added that the “right to control” means that the governments and others seeking to use the land must obtain the consent of the Aboriginal title holders unless stringent infringement tests are met. Moreover, the Court ruled that “incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.”
“Consent” is not limited to Aboriginal title and applies to other Aboriginal rights. As described in 2004 by the Supreme Court in Haida Nation v. British Columbia (Minister of Forests), the high end of the spectrum of consultation requires “‘full consent of [the] aboriginal nation’ on very serious issues.”
It is disturbing that the government of Canada claims to uphold the Aboriginal rights of Aboriginal peoples and Canada’s Constitution, but ignores key rulings of Canada’s highest court that favour such peoples.
1. THAT the Permanent Forum emphasize to States that implementation of the UN Declaration provides a common framework for reconciliation, justice, healing and peace.
2. THAT the Permanent Forum encourage UN treaty bodies and mechanisms, as well as the Universal Periodic Review process, to scrutinize the reports and human rights record of States, so as to effectively address rights ritualism. This should include ensuring that State claims are systemically compared to the concerns raised by Indigenous peoples and civil society.
3. THAT the Permanent Forum highlight the unprincipled positions and actions of those States, such as Canada, that undermine Indigenous Peoples’ human rights and the UN Declaration on the Rights of Indigenous Peoples. Such conduct prejudices Indigenous peoples globally and serves to weaken the international human rights system.
4. THAT the Permanent Forum and States take steps, in conjunction with Indigenous peoples, to ensure that State commitments and obligations are not violated in other international forums, as has occurred at the Convention on Biological Diversity meeting following the World Conference on Indigenous Peoples.A study should be undertaken by the Forum regarding how States are exploiting the weak procedural rules in international organizations to devalue the UN Declaration and other international human rights law.
5. THAT the Permanent Forum urge States, in conjunction with Indigenous Peoples, to develop legislation at the national level to ensure that laws are consistent with the UN Declaration. Each State has a prime responsibility and duty to protect, promote and implement all human rights, consistent with the Charter of the United Nations and international human rights law. All forms of discrimination must be avoided.
Download this joint statement in PDF for the end notes.
Read our blog from the UN Permanent Forum on Indigenous Issues.