Canada s Positions on the Adoption of the U.N. Declaration on the Rights of Indigenous Peoples: Concerns and Recommendations

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1 August 21, 2006 The Honourable Jim Prentice Minister of Indian Affairs and Northern Development House of Commons Ottawa, Ontario K1A 0A6 Dear Minister Prentice: Re: Canada s Positions on the Adoption of the U.N. Declaration on the Rights of Indigenous Peoples: Concerns and Recommendations Thank you for your letter dated July 14, I am writing to respond to your letter and, in particular, to discuss further with you the adoption of the U.N. Declaration on the Rights of Indigenous Peoples by the U.N. and Canada s continued opposition to this historic initiative. In regard to these crucial human rights matters, the Native Women s Association of Canada (NWAC) remains deeply concerned about the ongoing actions and positions of your government. I would like to take this opportunity to outline our concerns and make some specific recommendations. To provide sufficient context, we are enclosing with this letter an Annex that elaborates on the various legal and strategic considerations that should govern Canada s overall approach. During the period leading up to the inaugural session of the Human Rights Council and at the June 2006 session itself, the government of Canada articulated a number of unsubstantiated positions on the U.N. Declaration. These positions are also reflected in your letter to me dated July 14, These positions are highly prejudicial to the world s Indigenous Peoples and our human rights. Decisions were also taken without any consultation and collaboration with Indigenous Peoples in Canada, even though NWAC and other Indigenous organizations have been actively involved in the U.N. standard-setting process over the past two decades. In different regions of the world, Indigenous Peoples are continuously facing life-anddeath issues and a host of other human rights atrocities of the greatest urgency. While the adoption of the Declaration will not resolve all of these crises and injustices, it is a critical positive step. Therefore, it is deplorable and highly damaging for Canada, as a member of the Human Rights Council, to be encouraging States in Asia, Africa and other regions to withhold their support for the Declaration.

2 2 It is widely recognized that Asia and Africa are regions where there continue to be massive human rights violations against Indigenous Peoples. It is a huge betrayal of Indigenous Peoples globally and the international community for the government of Canada to counsel the States in these and other regions not to support an urgently-needed human rights instrument. In adopting this prejudicial strategy to advance its own political self-interest, Canada is demonstrating utter disregard for its solemn obligations as a Council member. In particular, Canada is abjectly failing to uphold the highest standards in the promotion and protection of human rights [and] fully cooperate with the Council. For example, last June Canada successfully influenced the Philippines to withdraw its support for the adoption of the Declaration and abstain even after the Philippines had publicly declared on May 18, 2006 its full support at the U.N. Permanent Forum s fifth session and added that this should be one of the priorities of the Council. As Canada is well aware, Indigenous Peoples are dealing with life-threatening issues in the Philippines. One of these issues is the extrajudicial killings of Indigenous leaders with impunity. The total number of political killings for just a period of one year is 705 people and there are a total of 182 enforced disappearances (see accompanying Annex, pp ). In this context it is completely unprincipled for Canada to discourage States like the Philippines from supporting the Declaration, especially when human rights violations continue to be rampant and undermine the security of Indigenous Peoples. For Canada to have actively encouraged the Philippines not to support the Declaration a human rights instrument is unconscionable, callous and cruel beyond words. At the very least, it portrays the policies and agenda of the Conservative government of Canada as anti-human rights and anti-indigenous. It undermines the integrity of the international human rights system. It also makes a mockery of Canada s foreign policy on human rights. Your government s conduct in this and other lobbying efforts clearly merits a full and impartial investigation. Despite our ongoing positive efforts to collaborate, the Canadian government continues to act in a unilateral manner that is inconsistent with its obligations under Canada s Constitution and under international law. This undermines our efforts to advance all human rights of Indigenous women and Peoples in Canada. As U.N. Secretary-General Kofi Annan underlined in his Address to the General Assembly on September 12, 2002: every government that is committed to the rule of law at home, must be committed also to the rule of law abroad. And all States have a clear interest, as well as clear responsibility, to uphold international law and maintain international order. It is clearly unacceptable that your government would ignore Indigenous representatives and exclude our democratic input, when making far-reaching decisions affecting our inherent human rights. In a spirit of cooperation and frankness, we have substantiated in

3 3 the Annex our understanding of the current situation and your related duties and commitments. NWAC fully supports the letter, dated July 27, 2006, and accompanying Annex that was sent to you by the Assembly of First Nations National Chief, Phil Fontaine. The fundamental questions posed in the Annex illustrate the severe problems arising from Canada s positions on the U.N. Declaration. We, too, wish to pose the same questions and, therefore, request timely and reasoned responses from your government. In this letter and accompanying Annex, we also raise a number of additional concerns and questions that merit a full reply. It is our understanding that the government of Canada and the Assembly of First Nations will be making arrangements to meet in a few weeks time on this whole matter. We kindly request that such meetings include representatives from NWAC and other Indigenous Peoples and representative organizations in Canada that are actively involved in, and contributing to, the standard-setting processes at the United Nations and Organization of American States. At this late stage, Canada should be engaging with us in a full and fair process of consultation and accommodation and not just convening meetings. The General Assembly will be considering the U.N. Declaration for final adoption this fall. Therefore, at this critical stage, we urge the Canadian government to alter its present course and play a positive and principled role in support of the approval of the Declaration. Yours sincerely, Beverley Jacobs, LL. B., LL.M. President cc. The Right Honourable Stephen Harper, Prime Minister of Canada The Hon. Peter MacKay, Minister of Foreign Affairs The Hon. Bill Graham, Leader, Liberal Party of Canada The Hon. Gilles Duceppe, Leader, Bloc Québécois The Hon. Jack Layton, Leader, New Democratic Party National Chief Phil Fontaine, Assembly of First Nations H.E. Ambassador Luis Alfonso de Alba, President of the Human Rights Council The Hon. Louise Arbour, U.N. High Commissioner for Human Rights

4 Annex Canada s Positions on the Adoption of the U.N. Declaration on the Rights of Indigenous Peoples Concerns and Recommendations Table of Contents Page 1. Significance and Scope of Indigenous Rights in the U.N. Declaration Failure of Canada to Uphold the Honour of the Crown Failure to Consult, Accommodate or Give Adequate Notice Defective Nature of Federal-Provincial Consultations Use of Extreme, Absolutist and Unsubstantiated Interpretations Deceptive Nature of Canada s Proposed Amendment Canada s Support for its Obstructionist Allies Canada s Sweeping Dismissal of the U.N. Declaration Failure to Fulfill Canada s International Obligations Undermining of Indigenous Peoples Collective Human Rights Adverse Impacts of Canada s Actions Recommendations for a Principled Approach... 36

5 Annex Canada s Positions on the Adoption of the U.N. Declaration on the Rights of Indigenous Peoples Concerns and Recommendations 1. Significance and Scope of Indigenous Rights in the U.N. Declaration Although the United Nations has existed since 1945, it has never adopted a comprehensive human rights instrument pertaining to the world s Indigenous peoples. The Universal Declaration on Human Rights was adopted in 1948, but without any consideration whatsoever of Indigenous peoples - particularly our worldviews and collective human rights. As the international jurist Richard Falk describes: What is not in doubt is the continued claim that the 1948 Universal Declaration utterly failed to encompass the circumstances and worldviews of indigenous peoples, and that it never considered their participation in the norm-creating processes as essential to establish the claim of universality. (R.A. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York/London: Routledge, 2000), at p. 51) Presently, the newly-established Human Rights Council has adopted a historic instrument the latest text of the U.N. Declaration on the Rights of Indigenous Peoples (Human Rights Council, Res. 2006/2, 29 June 2006, Annex). If adopted by the U.N. General Assembly, the U.N. Declaration would serve to redress the unjustified omission of our collective human rights from the 1948 Universal Declaration. More importantly, the U.N. Declaration would constitute a crucial step towards eliminating the widespread and persistent human rights violations against Indigenous peoples globally. In light of these and other compelling objectives, it is unjustified and shocking for the new Conservative government of Canada to have unilaterally sought to prevent the adoption of the Declaration by the Human Rights Council last June. While the attempts by Canada were widely rejected by States and Indigenous peoples at the Council, it is deeply troubling that the Harper government is continuing its efforts to undermine the current text of the Declaration. In particular, the government is prepared to oppose the positive recommendation of the Council, in favour of the adoption of the Declaration by the U.N. General Assembly this fall. The U.N. Declaration affirms the economic, social, cultural, political and environmental rights of Indigenous peoples globally. These rights constitute the minimum standards for

6 2 the survival, dignity and well-being of the indigenous peoples of the world (Art. 43, Council s re-numbered, approved version). As evident from its comprehensive scope, the Declaration covers a wide range of Aboriginal and treaty rights contemplated in s. 35 of the Constitution Act, According to Canadian government policy, s. 35 includes the inherent right of selfgovernment: Consistent with recommendations of the Royal Commission on Aboriginal Peoples, the federal government has recognized the inherent right of selfgovernment for Aboriginal people as an existing Aboriginal right within section 35 of the Constitution Act, (Indian Affairs and Northern Development, Gathering Strength - Canada s Aboriginal Action Plan (Ottawa: Minister of Public Works and Government Services, 1997)) The collective human right of self-government includes important economic, social, cultural, political and environmental dimensions. Further, the Declaration seeks to enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, nondiscrimination and good faith (preamble). In view of the diverse effects of the Declaration on Indigenous peoples rights and Indigenous-State relations, the government of Canada has a constitutional duty to uphold the honour of the Crown at all stages of the current U.N. standard-setting process. This duty is especially relevant, if Canada is seeking to diminish the standards in the Declaration. For over two decades, Indigenous peoples have been involved with Canada and other States in this process of discussions and negotiations relating to Indigenous peoples inherent rights. According to the Supreme Court of Canada: Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights. (Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, para. 26) As federal and provincial governments are well aware, the government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. (Haida Nation, supra, para. 16) In many instances, there are also fiduciary duties of a constitutional nature that are owed to Indigenous peoples in Canada. All of these duties are reinforced by the international commitments agreed to by Canada, when it ran and was elected to the Human Rights Council in the spring of this year. All of these aspects are further substantiated below. As we illustrate, the new Harper government has repeatedly failed to fulfill both its constitutional and international commitments and obligations, in taking unjustified and prejudicial actions to oppose the adoption of the U.N. Declaration by the United Nations.

7 3 2. Failure of Canada to Uphold the Honour of the Crown As explicitly affirmed by the Supreme Court of Canada, there is a duty in s. 35 of the Constitution Act, 1982 to uphold the honour of the Crown in all its dealings with Aboriginal peoples. This duty of the Crown applies in regard to its historical and future relationship with Indigenous peoples: In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1). (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, para. 24) In other words, the principle of the honour of the Crown must be understood generously. Moreover, the duty to act honourably in all its dealings with Aboriginal peoples covers a wide range of matters from the assertion of sovereignty to the resolution of claims and the implementation of treaties (Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, para. 17). The constitutional duty to uphold the honour of the Crown is fundamental to the interpretation and implementation of treaties and treaty rights relating to Indigenous peoples. This duty also applies in resolving aboriginal claims to consultation in the absence of any treaty. As confirmed by the Supreme Court of Canada: The honour of the Crown is itself a fundamental concept governing treaty interpretation and application... The honour of the Crown exists as a source of obligation independently of treaties as well, of course. In R. v. Sparrow, [1990] 1 S.C.R. 1075, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, Haida Nation and Taku River, the "honour of the Crown" was invoked as a central principle in resolving aboriginal claims to consultation despite the absence of any treaty. (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, para. 51). In particular, the Supreme Court of Canada has emphasized: The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of sharp dealing (Haida Nation, supra, para. 19). The Court added: Section 35 represents a promise of rights recognition, and "[i]t is always assumed that the Crown intends to fulfil its promises" (R. v. Badger [1996] 1 S.C.R. 771, at para. 41). This promise is realized and sovereignty claims reconciled through the process of honourable negotiation. (Haida Nation, supra, para. 20) Therefore, there is no doubt that the honour of the Crown must also be upheld in the making and interpretation of the U.N. Declaration on the Rights of Indigenous

8 4 Peoples. This is especially the case, since the Declaration may be a precursor to the negotiation of an international treaty or convention. The Canadian government recognizes the importance of this whole process and related rights and duties, since it has agreed to be involved with Indigenous peoples from Canada in the discussions and negotiations in the various stages of the U.N. standard-setting process for over twenty years. In fact, Canada has made an explicit commitment in relation to achieving a Declaration: Canada is committed to achieving a declaration that reflects the unique place of indigenous peoples in the world and applies universally; that promotes and protects indigenous rights; that works against discrimination; and that provides clear guidance for developing effective and harmonious relationships between indigenous peoples and the states in which they live. (Indian Affairs and Northern Development, Gathering Strength - Canada s Aboriginal Action Plan (Ottawa: Minister of Public Works and Government Services, 1997) For many years, Canada did not contribute positively to international standard-setting processes concerning Indigenous peoples human rights. In recent years, however, Canada has played a leadership role. An effective process of collaboration was established, whereby representatives of the Canadian government and Indigenous peoples from Canada would meet in a timely manner to discuss specific issues that were to be soon considered within the working groups of the U.N. or Organization of American States (OAS). Canada-Indigenous meetings were held on most mornings prior to the start of the standard-setting sessions. In this way, the concerns of participating representatives were considered and, where possible, successfully addressed. Indigenous peoples thus had an opportunity to deal with Canada s concerns before positions were formally taken within international forums. Regretfully, this collaborative process was effectively shut down by the new Conservative government in Ottawa. The same federal officials who had contributed positively could no longer discuss matters in a meaningful, substantive manner. Both States and human rights organizations in Geneva reported a significant negative change in Canada s international role. In late February 2006, the Chair of the U.N. intersessional Working Group issued an advance copy of his final report and proposed text on the U.N. Declaration. Yet, for the next 3¾ months leading up to the Human Rights Council, the government of Canada refused to adequately disclose and explain its positions or consult Indigenous representatives despite repeated requests. As Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Conference made clear to Canada s Prime Minister: We are extremely disturbed by the recent change in position by the Government of Canada with regards to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. That Canada has effectively reversed its position by calling for further negotiations based on a narrow, literal, overly legalistic, and incorrect view of the implications of the draft declaration, and to do so at this

9 5 eleventh hour is, frankly, outrageous. That Canadian officials in Geneva have refused to explain or justify this new position is insulting. (Sheila Watt-Cloutier, Letter to Prime Minister Stephen Harper, June 27, 2006) Similarly, at the OAS meeting on the draft American Declaration on the Rights of Indigenous Peoples in Brasilia, Brazil in March 2006, genuine collaboration with Canadian officials had mostly disappeared. At one point, NWAC and other Indigenous organizations had to insist that Canada cease its active support of U.S. positions since the U.S. was playing its generally unhelpful role. Clearly, these actions constitute a failure by Canada to uphold the honour of the Crown. As described under the following headings, the government of Canada engaged in other highly questionable conduct so as to abdicate its responsibilities under Canadian constitutional and international law. 3. Failure to Consult, Accommodate or Give Adequate Notice On very serious issues that may have adverse effects on our established rights, the Supreme Court has indicated that full consent of the Aboriginal nation would be required (Haida Nation, supra, para. 24). In our view, Indigenous consent would be required in a wide range of specific contexts, but we will focus here on other relevant aspects. At the very least, federal and provincial governments in Canada have a duty to consult, which may lead as well to a duty to accommodate: The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. (Taku River Tlingit First Nation, supra, para. 25) These constitutional duties exist even where Indigenous peoples rights are not yet established through treaties, court rulings, negotiations or other means: Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants' inherent rights. (Haida Nation, supra, para. 26). The U.N. Declaration affirms much more than Indigenous peoples rights to lands, territories and resources. It establishes minimum standards on a wide range of Indigenous rights, including treaty rights. Within the international human rights system, treaty monitoring bodies and Special Rapporteurs are continually assessing and affirming our inherent rights and highlighting their significance. In insisting upon changes to the latest text on the U.N. Declaration, the government of Canada is attempting to unilaterally affect Indigenous rights in a manner inconsistent with its constitutional obligations. This

10 6 is unacceptable. Rather, in all its dealings in this regard, Canada must uphold the honour of the Crown and, at the very least, fulfill its duty to consult with Indigenous representatives in Canada. The obligation to consult is a free-standing constitutional duty that has both procedural and substantive aspects under s. 35 of the Constitution Act, Regardless of whether the decisions of a government Minister or the Cabinet are ultimately deemed to support a finding of infringement of Indigenous rights, the government of Canada must fulfill the procedural requirements of ensuring an adequate consultation process compatible with the honour of the Crown : The Court must first consider the process by which the "taking up" [in this case, a winter road] is planned to go ahead, and whether that process is compatible with the honour of the Crown. If not, the First Nation may be entitled to succeed in setting aside the Minister's order on the process ground whether or not the facts of the case would otherwise support a finding of infringement of the hunting, fishing and trapping rights. (Mikisew Cree First Nation, supra, para. 59) The Canadian government is well aware that simply writing letters or having meetings with Indigenous leaders to indicate that Canada had problems with the latest text of the U.N. Declaration is not consultation. As clearly stated by Canada s highest court: Consultation that excludes from the outset any form of accommodation would be meaningless. The contemplated process is not simply one of giving [an Aboriginal people] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along. (Mikisew Cree First Nation, supra, para. 54) Your government failed to demonstrate an intention of substantially addressing [Aboriginal] concerns... through a meaningful process of consultation (Haida Nation, supra, para 42). Prior to any decisions of the Canadian government to oppose the adoption of the U.N. Declaration by the Human Rights Council in June 2006, there were no substantive responses to the letters from NWAC and other Aboriginal organizations; no provision of all necessary information to any of us so that we would have an opportunity to express our interests and concerns; no meetings or written documents to explain in detail the nature of your government s concerns; no meetings with us and other Aboriginal representatives to ensure that our concerns would be taken into account in a timely manner; and no indications to us how our concerns were in fact seriously considered and accommodated. Adequate notice of your government s intended position on the adoption of the U.N. Declaration would not mean that the requirement for adequate consultation has also been met. However, there was not even adequate notice of Canada s intentions either prior to or during the first session of the Human Rights Council. The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

11 7 The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.] (Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 178 D.L.R. (4 th ) 666 (per Finch J.A., B.C.C.A.), paras , cited with approval in Mikisew Cree First Nation, supra, at para. 64) While you were explaining to Parliament that your government needed more time to study the Declaration, States were already informing us that Canada was seeking another two years to negotiate changes to the text. In the hope of convincing other member States on the Council to oppose the adoption of the Declaration, Canadian government representatives were aggressively lobbying State capitals and State representatives in Geneva. Further, your government failed to consult when it decided to propose an amendment that would effectively block the adoption of the Declaration by the Council at its inaugural session. Indigenous representatives from Canada only received a copy of the proposed amendment on the same day that the amendment was given to States attending this session. The purpose of Canada s proposed amendment was to re-open negotiations, even though Indigenous peoples had cautioned that further delays could easily result in serious reversals of our collective progress to date (see, e.g., letter dated March 2, 2006, from Grand Chief Matthew Mukash, Grand Council of the Crees (Eeyou Istchee) to Prime Minister Stephen Harper). Such a measure could severely jeopardize the adoption of the Declaration by the United Nations. As AFN National Chief explained to you in his letter of June 26, 2006: Re-opening negotiations on the Declaration creates significant risk. The consensus already reached on many provisions could be unraveled. The gains achieved to date could be erased. As a result, all the actions that Canada took at the Human Rights Council to oppose and block the adoption of the U.N. Declaration were not in good faith. Nor was Canada s unilateral and misleading declaration to the Human Rights Council that this Declaration has no legal effect in Canada (see our comments under heading 8 below). These actions were inconsistent with your constitutional duties, which were never fulfilled. There was a failure to even consult with Indigenous representatives at every stage from the time that the latest text was available in late February At all stages, good faith is required. Your government repeatedly failed to demonstrate an intention of substantially addressing [Aboriginal] concerns... through a meaningful process of consultation (Haida Nation, supra, para 42) Therefore, measures were taken by Canada through a decision-making process that was fundamentally flawed. As Mr. Justice Binnie has

12 8 concluded on behalf of the Supreme Court of Canada: I agree that the measures were adopted through a process that was fundamentally flawed. (Mikisew Cree First Nation, supra, at para. 68) 4. Defective Nature of Federal-Provincial Consultations In an attempt to justify Canada s vote against the U.N. Declaration, your government indicated to the Human Rights Council on June 29, 2006: Consultations with Canada s provinces and territories have revealed concerns that are similar to those of the federal government. (Human Rights Council, Statement by Ambassador Paul Meyer [Canada], 1 st sess., June 29, 2006) However, the government of Canada omitted to disclose to the Council that these consultations were not conducted in conformity with the duties of federal and provincial governments under Canada s Constitution. In particular, Canada failed to mention to the Council that Indigenous peoples and our profound concerns regarding Canada s extremist positions were wholly excluded from these consultations. In regard to the adoption of the U.N. Declaration, the government of Canada has not informed Indigenous representatives of the nature and extent of its consultations with the provincial and territorial governments. However, we have learned from other sources that at least some provinces were consulted. In our respectful view, any such consultations that were carried out by Canada were selfserving and inherently defective. As described under the previous heading, the process of consultation with Indigenous peoples was non-existent. Therefore, the process for deciding what actions should be taken against the adoption of the U.N. Declaration was fundamentally flawed. How could the government of Canada provide adequate information to the provinces for the purposes of a valid consultation, if Canada refused to consult Indigenous peoples and take into account our concerns? As illustrated under the next heading, Canada s stated positions were excessive, absolutist, misleading and unsubstantiated. Such information is not a valid basis for any consultation, especially since most provinces in Canada had had no direct involvement in the U.N. standard-setting process on the Declaration. Within their authority, provincial governments also have a constitutional duty to uphold the honour of the Crown. They too cannot make decisions on Indigenous rights that may have adverse effects, in the absence of adequate consultation and accommodation. There is no doubt that the constitutional duties to consult and accommodate apply to provincial governments, and not only the government of Canada. In this regard, the Supreme Court of Canada has ruled:

13 9 The Province was aware of the claims, and contemplated a decision with the potential to affect the [Taku River Tlingit First Nation]'s asserted rights and title negatively. It follows that the honour of the Crown required it to consult and if indicated accommodate the TRTFN in making the decision whether to grant project approval to Redfern, and on what terms. (Taku River Tlingit First Nation, supra, para. 58) Based on the above, it must be concluded that any federal-provincial consultations that took place in relation to the adoption of the U.N. Declaration and any process of provincial decision-making in this regard were politicized by Canada for self-serving purposes and were fundamentally flawed. 5. Use of Extreme, Absolutist and Unsubstantiated Interpretations It has been repeatedly confirmed by the Supreme Court of Canada that the Aboriginal rights of Indigenous peoples in Canada are relative in nature and not absolute. For example, in Delgamuukw, supra, at para. 161, the Supreme Court stated: The aboriginal rights recognized and affirmed by s. 35(1) [of the Constitution Act, 1982] are not absolute. This is generally true for all human rights in Canada: Absolute freedom in the exercise of even a Charter or constitutionally guaranteed aboriginal right has never been accepted, nor was it intended. (R. v. Nikal, [1996] 1 S.C.R. 1013, at pp ) Similarly, it is widely recognized under international law that human rights including those of Indigenous peoples are generally relative in nature and not absolute. For example:... the human rights approach... does provide a framework to enable every situation to be considered and all the relevant rights and interests to be taken into account, balanced and analysed. (R. McCorquodale, Self-Determination: A Human Rights Approach, (1994) 43 Int l & Comp. L.Q. 857, at pp ) In the U.N. Declaration, it is clear that all of its provisions are relative in nature, particularly since the rights of others must be taken into account (Art. 46, Council s renumbered, approved version). Moreover, the government of Canada was a major proponent of the formulation in Art. 46. Therefore, it is deeply troubling that the Harper government would now choose to repeatedly engage in extreme, absolutist, misleading and unsubstantiated interpretations of the U.N. Declaration that are inconsistent with Article 46. A graphic example of unwarranted, absolutist and erroneous interpretations by your government is evident in the following statement in the House of Commons. In response to a question from Liberal Member of Parliament Anita Neville as to why the Harper

14 10 government was opposing the U.N. Declaration, Minister Jim Prentice effectively refused to provide any reasonable and substantiated explanation to Parliamentarians: no previous government of this country has ever supported that draft declaration it is inconsistent with the Canadian Charter of Rights and Freedoms. It is inconsistent with our Constitution. It is inconsistent with the National Defence Act. It is inconsistent with our treaties. It is inconsistent with all of the policies under which we have negotiated land claims for 100 years. That is Liberal hypocrisy. (House of Commons, Hansard, No. 045, June 21, 2006 (Hon. Jim Prentice, Minister of Indian Affairs and Northern Development); see also Mike Duffy Interview with Minister Jim Prentice, CTV, June 20, For similar extremist statements by Foreign Affairs Minister Peter MacKay, see Lisa Schlein, Canada says draft UN declaration on indigenous rights needs more work, Geneva, June 19, 2006, available at The above statements come perilously close to inciting the public against Indigenous peoples rights. In your capacity as Indian Affairs Minister, you have severely politicized the discussions in the House of Commons, referring to Liberal hypocrisy and declaring incorrectly that the no previous government has ever supported that draft declaration. As indicated in the AFN National Chief s letter of July 27, 2006 to you, the final report of the Working Group Chair Luis-Enrique Chávez explicitly refers to a significant list of provisions that was ready to be considered for provisional agreement. Canada had supported these provisions and was also a supporter and major proponent of other key articles. (U.N. Doc. E/CN.4/2006/79, para. 25) This rhetoric about the lack of previous Canadian government support is also flatly contradicted by the Harper government itself. In Canada s Commitments and Pledges (April 10, 2006) to the Human Rights Council, it is formally acknowledged that Canada played a leadership role in the establishment and implementation of norms and standards on key human rights issues, including the rights of indigenous peoples. You have also contradicted your own response, in your letter of July 20, 2006 to AFN National Chief Phil Fontaine, in stating that Canada consistently and faithfully worked for a strong and effective Declaration that would promote the collective rights of Indigenous peoples around the world. In light of all of these excessive and prejudicial statements, we insist that you fully explain how the U.N. Declaration is inconsistent with the Canadian Charter of Rights and Freedoms, Canada s Constitution, the National Defence Act, our treaties and all of the policies under which we have negotiated land claims for 100 years. In our respectful view, it was clearly unjust and irresponsible for you and your government to reach such extreme conclusions without prior explanation and consultation with us. You had no reasonable basis for using such arguments, in order to oppose the adoption of the Declaration by the Human Rights Council.

15 11 As you know, your arguments in this regard are viewed by Amnesty International as not holding up to scrutiny. Rather it is part of your efforts to justify Canada s obstruction of the Declaration : Federal Indian Affairs Minister Jim Prentice's efforts to justify Canada's obstruction of the long overdue draft United Nations Declaration on the Rights of Indigenous Peoples doesn't hold up to scrutiny. The minister claims that provisions in the declaration are "inconsistent" with Canadian laws, including the Constitution and the Charter of Rights and Freedoms. However, the minister never explained how such a conflict could exist when the declaration is a non-binding, aspirational document that is explicitly required to be interpreted in a fair and balanced manner with other laws and standards, the principles of democracy and good government in support of the rights of all. (Alex Neve, Secretary General, Amnesty International Canada, Letter to Toronto Star, June 28, 2006) Since the AFN National Chief s letter of July 27, 2006 to Minister Prentice effectively demonstrates the basic deficiencies in the above interpretations of Minister Prentice, we are not going to repeat all of them here. However, it is important to reinforce some of the concerns raised by AFN. We also wish to briefly describe how the interpretations of the government of Canada are inconsistent with the constitutional duties that it is bound to fulfill. In light of the potentially adverse effects on Indigenous peoples human rights of Canada s contemplated actions, the government should have considered the adoption of the Declaration by the U.N. in accordance with Canada s constitutional duties and in utmost good faith. As a minimum, this included consulting Indigenous peoples and, where indicated, accommodating Indigenous concerns. It is important to note that you and other members of the government of Canada have made the above legal interpretations, in the absence of any specific factual context. In determining such issues of pure law, the Supreme Court of Canada has ruled that the standard you would have to meet is correctness : On questions of law, a decision-maker must generally be correct To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness (Haida Nation, supra, para. 61) As strongly suggested by the questions in the AFN National Chief s letter of July 27, 2006, your interpretations are neither correct nor reasonable. The Harper government should not be reading certain provisions in isolation and interpreting them in an absolute manner. Every provision must be read in the context of the entire Declaration and international law as a whole.

16 12 Despite repeated requests by Indigenous representatives, Canadian officials in Geneva were at a loss to explain your government s legal interpretations. To date, the government has failed to share with us its legal analyses or otherwise disclose to us the grounds for its interpretations. In so doing, the Harper government is violating the rule of law in Canada, while claiming without substantiation that it has domestic rule of law concerns. In your Address to the AFN Annual General Assembly on July 16, 2006, you seem to imply that your government would like to re-open negotiations on the U.N. Declaration so as to recognize Canada s current reality. You stated that Canada s approach, while not perfect, is an approach that many countries can learn from. You added (in French) that this approach could serve as a model for many countries. Yet, in the same Address, you then went on to emphasize the opposite. You stressed that the root cause of many problems we face [is] the archaic, tangled, and patronizing legislative framework that defines the vast majority of relations between government and Aboriginal peoples. You later added that the current system erodes public trust and alienates First Nations. We would agree that these are serious problems that should be addressed at the domestic level, in conjunction with Indigenous peoples in Canada. However, your contradictory statements do not suggest any reason whatsoever to re-open the more than 20 years of discussions on the Declaration that have already taken place. During the Working Group, Canada had already made various proposals on lands, territories and resources, as well as self-government which proposals received very little support from other States. In regard to the absurd claim that the Declaration is inconsistent with all of the policies under which we have negotiated land claims for 100 years, we must remind you that for 24 of those years it was the explicit policy and law in Canada not to negotiate land claims at all. From 1927 to 1951, it was a criminal offence under Canada s Indian Act for Indians to raise funds or retain a lawyer for the advancement and prosecution of land claims. In your Address to the AFN General Assembly on July 16, 2006, you referred to the Indian Act as part of the current archaic, tangled, and patronizing legislative framework that Canada still applies to us. You also asked rhetorically: Does anyone in this room truly believe we can get where we want to go with the current version of the Indian Act?. In relation to the federal government s claims policies, you concluded in French in your Address that the system is not sufficient for the task. In spite of this statement, you and your government continue to make contradictory, erroneous and misleading statements to Parliament and the media. It is unprincipled to use statements about the 100 years of claims policies in Canada to substantiate your government s decision to oppose the Declaration. First, you and your government are fully aware that Canada s first comprehensive claims policy was only established in the early 1970s. Furthermore, the very fact that these claims continue to exist today demonstrates that Canada has problems in living up to its human rights obligations. Surely, these difficulties cannot be used as a basis for Canada s opposition to the historic and urgently-needed adoption of the U.N. Declaration.

17 13 In your Address you also stated that you are convinced we must have a modern framework. For such purposes, you highlighted the necessity to involve First Nations. You explicitly urged more than consultation with Indigenous peoples, adding that honest collaboration was also clearly required: To create this type of framework, we must get First Nations involved. For the framework to succeed, it must have the enthusiastic support of the men and women with the most to gain. This government recognizes that getting this level of support requires more than consultation it also requires honest collaboration and determined effort. (Hon. Jim Prentice (Minister of Indian Affairs and Northern Development), Notes for an address, Assembly of First Nations, 27th Annual General Assembly, Vancouver, British Columbia, July 13, 2006) You also added in your Address that to move forward [you will] need the counsel and support of the women and men in this room. You urged us to work together and make Canada stronger than ever. Then why, in the same speech, were none of these principles of working closely together or seeking our counsel applied to the adoption of the U.N. Declaration? You only stated that it is your duty to explain Canada s position not to support the United Nations Draft Declaration on the Rights of Indigenous Peoples (which you then failed to adequately do). No requirement for consultation or collaboration with Indigenous peoples on our human rights was even mentioned or contemplated. Such blatant contradictions in your Address are most difficult to comprehend. In a letter to the Globe and Mail on June 27, 2006, you stated: The text on lands and resources could be used to support claims to potentially revive rights that were lawfully extinguished or ceded by treaty, as agreed by affected aboriginal groups. This tired, fictional argument has been repeatedly made without success in the Working Group by such countries as New Zealand, Australia and the United States. New Zealand went so far as to claim that, if adopted, non-indigenous people could be legally required to leave their own country! We would emphasize here that it is extremely unhelpful for Canada to try and advance the absolutist and fictitious arguments of obstructionist States. Similar arguments were unsuccessfully put forward by a few Canadian government officials in the early 1980s, when the federal government and Parliament were considering recognizing and affirming Aboriginal and treaty rights in Canada s Constitution. It was suggested by some that such a broad and general recognition would result in Aboriginal peoples rights being affirmed by the courts to all or most parts of Canada. However, in the past 24 years following constitutional recognition, not a single Aboriginal people in Canada has been able to meet the stringent judicial tests so as to have its Aboriginal title to land recognized. This unjust situation has been explicitly commented upon by the U.N. Committee on the Elimination of Racial Discrimination. In

18 14 its August 2002 report (para. 16), the Committee urged Canada to examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before courts. Is the Canadian government now prepared to fairly address this current reality in Canada? Should your government truly believe that an aspirational Declaration can potentially revive rights that were lawfully extinguished or ceded by treaty, as agreed by affected aboriginal groups, we would insist that you provide us with the legal reasoning and legal precedents to support your position. We are not aware of a single case in any part of the world, where this has ever occurred. Canada appears to be adopting the same extreme, absolutist and erroneous strategies that continue to be used in a misleading manner by the U.S., Australia and New Zealand, in opposing the adoption of the Declaration. Therefore, we will examine further Canada s support of these obstructionist States under heading 7 below. 6. Deceptive Nature of Canada s Proposed Amendment At the June 2006 session of the Human Rights Council, the government of Peru and a significant number of other States were co-sponsoring a draft resolution to adopt the latest text of the U.N. Declaration on the Rights of Peoples (as proposed by the Working Group Chair in U.N. Doc. E/CN.4/2006/79, Annex I). This resolution was ultimately adopted by the Council on June 29, 2006 (Human Rights Council, Res. 2006/2). During the first week of the Council, Indigenous representatives heard that the government of Canada would be proposing an amendment to Peru s resolution, so as to block the adoption of the Declaration by the Human Rights Council at its inaugural session. Since this was widely known by States, federal officials had little choice but to admit as much to Canadian Indigenous representatives in Geneva on June 23. A copy of the proposed amendment was only given to Indigenous representatives on June 26, one day prior to the formal discussion of the U.N. Declaration by the Council. The principal paragraph in Canada s proposed amendment was the following: authorize further consultations based on the Chairperson Rapporteur's text, reporting progress back to the next session of the Council, with the aim of developing specific proposals to achieve the broadest possible agreement and to provide for the adoption of a final draft United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly as soon as possible. The amendment lacked clarity as to who would conduct such consultations and how these would be done. As described by Canadian officials, the proposed consultations would determine what concerns States would like to address in relation to the latest text of the Declaration. The consultations would also determine what kind of process States wished

19 15 to have in continuing to revise the latest text. At its September 2006 session, the Human Rights Council would receive a progress report indicating a list of State concerns and a list of options for a new process to address these concerns. When Canadian officials were asked if the proposed amendment would explicitly provide for full and effective Indigenous participation in any new process, the answer was clearly negative. It was later suggested that perhaps Indigenous representatives might be permitted to be observers. Apparently, whether there would be Indigenous involvement and, if so, to what extent would only be determined in the future. The Indigenous representatives that were present strongly objected to this regressive, undemocratic and vague approach that Canada was facilitating. The reason why Canada refused to explicitly provide for Indigenous participation in its proposed amendment is apparent when one examines the joint position of Australia, New Zealand and the United States. As indicated below, these three countries have bluntly declared that it is in the interests of indigenous peoples for the Council to now create, without Indigenous participation, an informal process to revise the Declaration through consultations with and between States : States need more time to resolve their differences. What this Council should now be addressing, in the interests of indigenous peoples, is a process to bridge differences between States. One way forward might be to appoint a facilitator or a friend of the Council, to undertake informal consultations with and between States. (Human Rights Council, Joint Statement by Australia, New Zealand and the United States of America, 27 June 2006, p. 4) It is unconscionable for Canada to facilitate in any way the establishment of a one-sided process on the U.N. Declaration, where States could unilaterally alter the delicate balance and compromises reached with Indigenous peoples during over 20 years of discussion. Considering the key issues that Australia, New Zealand and the U.S. have already highlighted for revision, the integrity of Indigenous peoples human rights in the Declaration would likely be severely undermined by self-serving States. Any proposed process that opens the door to addressing a new list of only State concerns would constitute an unbalanced, undemocratic and discriminatory process. Why would Indigenous peoples not fully and effectively participate? Why would Indigenous concerns not also be added? Based on our collective experiences to date, any new proposal to address new lists of State and Indigenous concerns would take an inordinate amount of time to fully discuss let alone reach new agreements. Important gains already secured could easily be unravelled. For Canada to seek to re-open the standard-setting process to accommodate objecting States was and continues to be an unrealistic, prejudicial and unmanageable strategy especially when one examines the draconian positions of the U.S, Australia and New Zealand. It is likely that, for these and other reasons, the Chair of the Working Group