Download ppt - United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013

United Nations Declaration on the Rights of Indigenous Peoples

LEXPERT – Aboriginal Law 2013

Overview 2007: U.N. Declaration: a non-legally binding,

aspirational declaration adopted by the U.N. General Assembly

Describes both individual and collective rights of Indigenous peoples around the world

Principles: equality, partnership, good faith and mutual respect

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OverviewTimeline1985: U.N. Working Group on Indigenous Populations (“WGIP”) (independent experts) decided to create a declaration on Indigenous rights1993-94: WGIP submitted draft declaration to Sub-Commission on the Promotion and Protection of Human Rights (parent body of WGIP), which adopted the draft declaration without changes1995: Working Group of the Commission on Human Rights was established to elaborate a Declaration on the Rights of Indigenous Peoples based on the WGIP draft

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OverviewTimeline, cont. …2004: U.N. General Assembly commenced substantive negotiations on the draft Declaration 2006: U.N. Human Rights Council brought forward Declaration without prior discussion by member States or Indigenous representatives 2007: Canada, New Zealand, Colombia and Russian Federation suggested possible amendments to secure further negotiations; negotiations did not occur and Declaration was adopted without changes

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OverviewU.N. Adoption of DeclarationAdopted on September 13, 2007 by resolution of U.N. General Assembly

143 states voted in favour of adopting Declaration 4 states voted against adopting Declaration: Canada, New Zealand,

Australia and USA (all have since endorsed the Declaration conditionally)

11 states abstained 34 states were absent

Caveats: Many states in favour qualified their vote, emphasizing that the Declaration is non-binding and subject to varying interpretations

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Overview2007: Canada voted against DeclarationCanada expressed disappointment in voting against a document that it had actively participated in developing for over 20 years Liberals, NDP and Bloc Quebecois criticized the Conservatives for failing to follow the will of Parliament and failing to meet the Crown’s duty to consult In 2008, Parliament voted 148 to 113 in favour of adopting the DeclarationCanada gave both procedural and substantive reasons for voting against adoption of Declaration

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OverviewProcedural ReasonsCanada proposed further, open and transparent negotiations with effective involvement of Indigenous peoples – this did not occurCanada proposed amendments to ensure the Declaration could be interpreted in accordance with each state’s Constitutional framework – these were not acceptedLast-minute modifications prepared by a limited number of delegations were presented to the General Assembly. The modifications did not address concerns of key delegations, including Canada; Canada was not satisfied with the final text of the Declaration

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OverviewCanada’s reasons for voting against in 2007:Government of Canada submitted that the Declaration:

(a) was fundamentally flawed and lacked clear, practical guidance for implementation;

(b) was ambiguous and open to broad interpretations that may not take into account Indigenous rights in Canada; and

(c) contained provisions that were fundamentally incompatible with Canada’s constitutional framework

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OverviewIncompatible with Canada’s Constitution

Lands, territories and resourcesArticle 26(1):

Indigenous peoples have the right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Difficult to reconcile with Canada’s recognition of a range of Aboriginal rights in relation to land, from rights of use such as hunting and fishing, to Aboriginal title. Does not take into account different interests, legislative regimes or protections that apply to the land

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Lands, territories and resourcesArticle 28(1):

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Canada preferred a clause that explicitly excluded retroactive application, so as not to apply to lands formerly held but extinguished by treaty or other lawful means“traditional occupation” likely not the same as Aboriginal title

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Free, prior and informed consentArticle 19:

States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

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Free, prior and informed consentCanada’s concerns:

implies that states cannot act without the consent of Indigenous peoples even when such actions are matters of general policy and could be interpreted as a ‘veto’; and

could be interpreted as going beyond the Constitution Act, 1982 and overriding the “duty to consult” in Canadian law

Criticism: “Free, prior, and informed consent” is not automatically a veto, and there is

no reference to a ‘veto’ in Declaration; and “Free, prior and informed consent” is a means of participating on an equal

footing in decisions However, “consent” means “consent”

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Self-governmentArticle 4:

Indigenous peoples, in exercising their right to self determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 4 is silent on the importance of paramountcy of federal or provincial laws of overriding national or provincial importance Canada viewed the scope of Aboriginal jurisdiction as extending to matters internal to a group; it preferred a clause that would ensure a harmonious relationship among federal, provincial and Aboriginal government laws

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OverviewCriticism of Canada

“Canada’s refusal to endorse and implement the Declaration is a stain on the country’s human rights record. The nation has failed to uphold its international obligations. It can no longer credibly claim to be a defender of human rights in the international community.”

– Former National Chief of the Assembly of First Nations

“No credible legal rationale has been provided to substantiate these extraordinary and erroneous claims…. We are concerned that the misleading claims made by the Canadian government continue to be used to justify opposition, as well as impede international co-operation and implementation of this human rights instrument.”

– Open letter of Canadian scholars and experts

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Balancing of RightsDeclaration did not recognize Canada’s need to balance Indigenous rights to land and resources with the rights of other Canadians, and did not contain any “balancing” of individual and collective rights Declaration suggests that Indigenous rights prevail over the rights of others, without sufficiently taking into account the rights of other individuals and groups, and general welfare of society.

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OverviewCanada eventually adopted the Declaration

November 12, 2010: Canada issued a Statement of Support endorsing the DeclarationReasons:

Declaration had potential to contribute positively to the advancement of Indigenous rights;

underlying principles were consistent with Canada’s goals; by 2010, Canada was confident it could interpret the

Declaration in a manner consistent with its Constitution and legal framework;

better to endorse Declaration while explaining concerns, than to reject it entirely; and

was an opportunity for Canadian government to strengthen relations with Aboriginal peoples in Canada

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OverviewCaveats in Canada’s Statement of Support

Declaration is a non-legally binding document Declaration does not reflect customary international law Declaration does not change Canadian Law

Canada’s endorsement with caveats has been met with mixed reviews

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Voting and the Declaration 88 countries have identifiable Indigenous populations based on

data provided by the UNHCR RefWorld database of countries with minorities and Indigenous peoples.

192 states were eligible to vote on the Declaration in 2007.

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HAVE ABORIGINAL PEOPLE

DON’T HAVE ABORIGINAL PEOPLE

TOTAL

IN FAVOR 42 101 143

AGAINST 4 0 4

ABSTAIN 11 0 11

ABSENT 31 3 34

TOTAL 88 104 192

Voting and the Declaration Since 74% voted in favor of the Declaration, the general

assumption has always been that it was seen as a welcome development by all

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Voting and the Declaration Out of 192 countries with voting power at the time, 143 voted

in favor of the Declaration. 101 of those nations voting in favor do not have Aboriginal

peoples

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Voting and the Declaration Of those who voted in favor, only 29% had Indigenous peoples 100% of those who voted against had Indigenous peoples 100% of those who abstained had Indigenous peoples 91% of those who were absent had Indigenous peoples

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Commentary Revealing statements were made by countries who qualified

their vote Majority emphasized that Declaration is non-binding and

subject to varying interpretations Concerns expressed by countries with caveats suggest a focus

on the wording and implementation of the Declaration, rather than a disregard for Indigenous rights

The following countries expressed significant reservations about the right to self-determination, free prior and informed consent; or because of ambiguities in the text generally:

Australia; Bangladesh; Brazil; Canada; Colombia; Egypt; India; Japan; Jordan; Mexico; Namibia; Nepal; New Zealand; Nigeria; Paraguay; Philippines; Russia; Slovakia; Suriname; Sweden; Thailand; Turkey; and the United States

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CommentaryStates entering caveats took an approach in their caveats that fits into one of the three following approaches:

1. An intention to interpret the Declaration flexibly; 2. Making a statement that the Declaration does not create

any new rights; and/or3. Stating that the Declaration does not interfere with

territorial integrity or state sovereignty.What these caveats indicate is that out of the already 42 (out of 88) countries with Indigenous peoples who voted in favor, 9 made a caveatThose 9 countries agreed to the Declaration, but not without qualification

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Concluding CommentsCanada’s situation is unique At law, Canada’s constitutional treatment of Aboriginal treaty

rights is unique globally Aboriginal and treaty rights in Canada are also safeguarded in

other agreements and in judicial decisions These demonstrate Canada’s commitment to the underlying

principles of the Declaration Canada’s constitutional treatment of Aboriginal treaty rights is

unique globally Canada’s reaction to the Declaration is in line with the

uneasiness expressed by other countries also having Indigenous peoples and issues.

Aboriginal rights in Canada are safeguarded in other agreements and in judicial decisions

These demonstrate Canada’s commitment to the underlying principles of the Declaration

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Concluding CommentsLegal Effect of Declaration

Two possible ways Declaration could have a direct legal effect and become binding:

1.Customary International LawSome provisions can be considered a “reflection of norms of customary international law”. Canada did not achieve “persistent objector” status to avoid being bound by these rules of customary international law - Special Rapporteur S. James Anaya

2.Impact on Canadian CourtsJudges may take Declaration into account when considering Aboriginal rightsSCC has repeatedly ruled that declarations and other international instruments are relevant and persuasive sources of interpretation of domestic human rights

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Concluding CommentsLegal Effect of Declaration

“Free, Prior and Informed Consent” v. Duty to Consult Concept of “free, prior and informed consent” is referred to in the Declaration in relation to administrative and legislative measures, redress, development, environmental protection and military activitiesIn Canada, Crown is not required to receive “consent” from Aboriginal peoples (Haida Nation)Unless Canada’s “duty to consult” standard is challenged, it is unlikely that the Declaration will cause Canada to adopt “free, prior and informed consent” as a policy

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Concluding Comments The three main reasons that the Declaration is fundamentally

flawed is that it lacks clear, practical guidance for implementation; that its text is ambiguous and open to broad interpretations that may not take into account Indigenous rights in Canada; and that it contains provisions that are fundamentally incompatible with Canada’s constitutional framework.

Canada’s actions are in harmony with those of other nations having Indigenous populations.

Despite doubts cast, Canada’s legal treatment of Indigenous rights has actually been substantive.

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Payments Made to Aboriginal Groups United States Foreign Corrupt Practices Act (FCPA) Canada’s Corruption of Foreign Public Officials Act

(CFPOA) UK’s Bribery Act 2010 (Bribery Act) FCPA prohibits bribery of “foreign officials” to

obtain or retain business CFPOA prohibits the bribery of “foreign public

officials” to obtain a business advantage Bribery Act makes it an offence to bribe a “foreign

public official” to obtain an advantage in the conduct of business

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Payments Made to Aboriginal Groups No material guidance or case law yet Common practice throughout Canada and

encouraged by Canadian governments and regulators

Plain reading suggests that agreements entered into with Aboriginal groups arising out of Crown consultation with such groups will likely not breach these statutes

However: Agreement is with group not individuals Bribery Act in particular is broadly framed No evidence of corrupt or improper intentions by

representatives of either the company or the Aboriginal group

Community transparency; no secret payments

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Tom Isaac B.A., M.A., LL.B., LL.M.Tom Isaac is a partner of Osler, Hoskin & Harcourt LLP and leads the firm’s National Aboriginal Law Group. He advises industry and government clients across Canada on aboriginal, energy, natural resource and environmental assessment matters and regularly acts as a negotiator for industry and governments dealing with aboriginal groups. He has appeared before the Supreme Court of Canada, the Ontario Court of Appeal, British Columbia Court of Appeal and Supreme Court, Northwest Territories Supreme Court, Yukon Supreme Court, Ontario Energy Board and British Columbia Environmental Appeal Board dealing with aboriginal legal matters.

He was a Chief Treaty Negotiator for the Province of British Columbia and prior to that was Assistant Deputy Minister for the Government of the Northwest Territories responsible for establishing Nunavut. He also served in a senior capacity with the Government of Saskatchewan.

He is the author of Aboriginal Law: Commentary and Analysis (2012) and Aboriginal and Treaty Rights in the Maritimes: The Marshall Decision and Beyond, along with eight other books and numerous articles on aboriginal legal matters. Mr. Isaac’s published work on aboriginal law has been cited with approval by courts across Canada, including the Supreme Court of Canada and the Federal Court of Appeal. Mr. Isaac has been a contributing editor to the Canadian Native Law Reporter since 1991.

Mr. Isaac is recognized in the 2013 edition of The Best Lawyers in Canada in the area of aboriginal law and in the 2013 edition of Benchmark Canada, The Definitive Guide to Canada’s Leading Litigation Firms & Attorneys. He also appears in the 2013 Canadian Legal Directory, as a leading practitioner in aboriginal law, as well as the 2013 Chambers Global: The World’s Leading Lawyers for Business in aboriginal law.

Mr. Isaac is a member of the law societies of British Columbia, Alberta, the Northwest Territories, Nunavut and Yukon (formerly a member of the Law Society of New Brunswick).

Address: Osler, Hoskin & HarcourtSuite 2500, TransCanada Tower450 – 1st Street SWCalgary, AB T2P 5H1

Calgary: (403) 260-7060Vancouver: (604) 913-2303Toronto: (416) 862-6451Fax: (403) 260 7024Email: [email protected]

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