First Nations leaders: Canada must obey international law – Including UN Declaration (as endorsed)
Another speaker at the forum, Quebec lawyer Paul Joffe, stated that the United Nations Declaration on the Rights of Indigenous Peoples — which Canada signed in 2010 — has legal consequences in this country.
He cited a recent decision regarding a human-rights complaint about child-welfare services on First Nations reserves. “The Federal Court said the following: ‘The Supreme Court of Canada has recognized the relevance of international human-rights law in interpreting domestic legislation,’ ” Joffe said. “So right away, you can see there are legal effects.”
The UN declaration has 46 articles calling on countries to protect indigenous peoples’ economic, social, cultural, political, environmental, and spiritual rights. The Conservative government has claimed that the UN declaration is “not legally binding”, describing it as “an important aspirational document”.
Joffe, however, adamantly rejected that argument. He noted that the Federal Court decision stated that Parliament “will be presumed to respect the values and principles enshrined in international law, both customary and conventional”. He said that conventional referred to treaties.
Two things must be demonstrated for customary international law to apply. “You have to prove that most states—not all states—adhere to the norm, and the second thing is that there must be a belief that they have some legal obligation to respect that norm,” Joffe stated.
As examples of customary international law recognized by Canadian courts, he listed the right to self-determination, an obligation to honour treaties, and prohibitions of genocide and racial discrimination. He maintained that the UN declaration can be read into Section 35 of the Constitution Act, 1982, which recognizes and affirms aboriginal and treaty rights.
“It hasn’t been decided yet,” Joffe acknowledged, “but it’s my view that one day the courts will have to recognize when it says ‘existing aboriginal treaty rights in Section 35’, it has to refer to all of the rights in the declaration.”
Chief Doug White of the Snuneymuxw First Nation told the audience at VCC that no Canadian court has ever had the courage to declare aboriginal title exists on one square inch of land in this country, notwithstanding decades of litigation. He also highlighted the importance of a 2004 Supreme Court of Canada decision, which imposes a “duty of consultation” on the Crown when making decisions that have an impact on aboriginal rights.
In addition, White stated that the UN declaration recognizes that decisions affecting the rights of indigenous people must be done with their “free, prior, and informed consent”. And he claimed that Prime Minister Stephen Harper is “incorrect” when he claims that the declaration is not enforceable in Canada.
The federal government “was going down a pathway that has only become clearer and clearer to us this year,” White said. “So we need to be able to use international rights to achieve a proper pathway to respect and recognition in this country.”
UN panel hears natives’ complaints against Harper government
By: GLORIA GALLOWAY – OTTAWA — The Globe and Mail
(Published Friday, Feb. 22 2013)
Twenty Canadian first nations have taken to the world stage to accuse the Harper government of violating the human rights of their people and of failing to take action against “racist” media reports.
The communities – most of them Cree – made two presentations before the UN Committee on the Elimination of Racial Discrimination in Geneva on Friday.