October 2012. Universal Periodic Review Concerning Canada (Second Cycle)
Grand Council of the Crees (Eeyou Istchee); First Nations Summit; Federation of Saskatchewan Indian Nations; Union of British Columbia Indian Chiefs; Chiefs of Ontario; Native Women's Association of Canada; Canadian Friends Service Committee (Quakers); Treaty Four First Nations; Assembly of First Nations of Québec and Labrador/Assemblée des Premières Nations du Québec et du Labrador; Atlantic Policy Congress of First Nations Chiefs Secretariat; Hul'qumi'num Treaty Group; KAIROS: Canadian Ecumenical Justice Initiatives; First Peoples Human Rights Coalition
1. This Joint Submission is made in regard to the Universal Periodic Review (UPR) of Canada, scheduled to take place during the Human Rights Council’s 16th session 22 April – 3 May 2013. As required, a primary focus is, inter alia, the "implementation of the accepted recommendations and the development of human rights situations" in Canada.
2. This includes implementation of the United Nations Declaration on the Rights of Indigenous Peoples (hereinafter “UN Declaration” or “Declaration”). The Declaration is a consensus international human rights instrument – no State in the world formally opposes it. The global consensus in support of the Declaration reinforces its weight as a universal instrument.
3. The Declaration has diverse legal effects and commands "utmost respect". UN treaty bodies are increasingly using it to interpret Indigenous rights and State obligations in existing human rights treaties, as well as encouraging its implementation.
4. A central concern in this Submission is the Canadian government's double standard on democracy, human rights, security and rule of law. Canada purportedly champions these fundamental principles and values, as well as their interrelationships. Yet the government repeatedly violates them when addressing Indigenous peoples' rights.
5. In its responses to the UPR Working Group during the 1st cycle, Canada sought to portray a positive view of its record on Indigenous peoples' rights and its acceptance of diverse State recommendations.
6. Since its election in 2006, the Canadian government has refused to acknowledge that Indigenous peoples' collective rights are human rights. This is inconsistent with the position of its own Canadian Human Rights Commission, as well as the practice within the UN system for the past 30 years. In June 2007, in its Agenda and Framework for the programme of work, the UN Human Rights Council permanently included the “rights of peoples” under the heading “Promotion and protection of all human rights".
7. Indigenous peoples’ collective rights are human rights, as affirmed in the UN Declaration and other international and regional instruments. Canada's ongoing failure to affirm and address Indigenous peoples' collective rights as human rights constitutes racial discrimination.
8. In November 2010, Canada reversed its position and endorsed the UN Declaration. However, Canada has not fundamentally changed its positions and continues to devalue this human rights instrument.
9. Contrary to international and Canadian law, Canada erroneously claims that the Declaration is merely an “aspirational” instrument with no legal effect. It is only when Canada is being actively challenged before a domestic court or a UN treaty body that the government may alter its excessive positions – and even then only in part.
10. In March 2011, Canada released updated guidelines to federal officials on “Aboriginal Consultation and Accommodation”. These guidelines refer to the UN Declaration, so as to diminish erroneously its value and legal significance. The guidelines characterize the Declaration as "aspirational" and "a non-legally binding document that does not change Canadian laws. Therefore, it does not alter the legal duty to consult".
11. In these updated guidelines on consultation and accommodation, the Canadian government has removed any reference to "consent". However, the Supreme Court of Canada has ruled that the Crown's duty to consult includes a wide range of possible requirements. At the high end of the spectrum is "'full consent of [the] aboriginal nation' on very serious issues." On crucial issues of "consent", Canada cannot selectively ignore the ruling of its highest court, as well as international human rights law.
12. Indigenous peoples' rights are increasingly addressed in international forums, including those relating to food security, biodiversity, climate change, and intellectual property. Since 2006, the government of Canada has been unwilling to discuss its obligations to consult and accommodate Indigenous peoples under international and Canadian law. Such actions violate the rule of law.
13. In such international forums, Canada takes positions that are often prejudicial to Indigenous peoples' rights. Yet Canada generally refuses to provide such information in advance. The failure to provide "all necessary information in a timely way" violates its duty to consult and accommodate Indigenous peoples. Failure to provide such information also violates the right to freedom of expression.
14. Such actions are incompatible with basic principles of democracy, accountability, transparency and good governance. They undermine the rights of Indigenous peoples to full and effective participation, as required by the UN Declaration and other international human rights law.
15. In the international negotiations of the Nagoya Protocol on access and benefit sharing, Canada played a lead role in undermining Indigenous peoples' rights to genetic resources. Canada exploited the practice of consensus to insist that the Protocol only recognize “established” rights of Indigenous peoples "in accordance with domestic legislation". Genetic resource rights based on customary use would not be recognized. This could lead to massive dispossessions of Indigenous peoples' inherent rights to genetic resources.
16. Such an approach is incompatible with Canada's obligations in the Charter of the United Nations, Convention on Biological Diversity and international human rights law. It could deprive Indigenous peoples of their rights to self-determination, culture and resources contrary to principles of equality and non-discrimination.
17. The restrictive "established" rights approach is incompatible with the jurisprudence of the Committee on the Elimination of Racial Discrimination. The Canadian government has been unsuccessful in its attempts to restrict its constitutional duty to consult Indigenous peoples to situations where their rights were already “established”. In this regard, the Supreme Court of Canada rejected Canada’s approach as "not honourable".
18. Doctrines of racial superiority are invalid and discriminatory. Yet federal and provincial governments in Canada are still invoking the doctrine of "discovery" to deny or limit Aboriginal title to lands or territories. This impedes the progressive development of Indigenous peoples' rights. As a result, no Indigenous peoples in Canada have succeeded in affirming such title through the courts. The impoverishment of Indigenous peoples is perpetuated.
19. In the contemporary context of justice, reconciliation and international human rights, the doctrine of discovery must have no place in determining Indigenous peoples' title and rights. True implementation of the UN Declaration requires the repudiation of this racist and colonial doctrine.
20. Throughout Canada’s history, in virtually every court case relating to Aboriginal and Treaty rights, the government of Canada chooses to act as an adversary. No other people in Canada are automatically subjected to such consistently adverse and discriminatory treatment.
21. Canada has a dismal record on treaty implementation. In regard to historic treaties, Canada has failed to honour and implement these sacred agreements in accordance with their spirit and intent – especially in relation to lands and resources. Also, the Land Claims Agreements Coalition has indicated the "Government of Canada has failed universally to fully implement the spirit and intent and the broad socio-economic objectives of all modern land agreements."
22. Despite widespread opposition, the Canadian government is proceeding with its Safe Drinking Water for First Nations Act (Bill S-8). The government purportedly confers on itself the power to abrogate or derogate from Aboriginal or Treaty rights protected by Canada's Constitution – "to the extent necessary to ensure the safety of drinking water on First Nation lands". For such purposes, rights of self-determination and self-government are being cast aside. No other peoples in Canada are compelled to relinquish their human rights in order to enjoy safe drinking water.
23. Despite repeated warnings from Canada's Auditor General and the constitutional commitments of federal and provincial legislatures and governments, Canada continues to discriminate in providing essential services to First Nations people on reserves. In this context, the Canadian government disregards the UN Declaration and the human rights implications of its actions.
24. In the 8 June 2009 report of the UPR Working, the Canadian government claims: "Canada has supported the work of the United Nations human rights system ... and maintains a standing invitation to all Special Rapporteurs." However, Canada responded negatively when Special Rapporteurs raised concerns. When the Special Rapporteur on the rights of indigenous peoples issued a statement expressing concern about disparities of services in Canada, the Canadian government characterized his statement as a "publicity stunt".
25. In May 2012, when the Special Rapporteur on the right to food visited Canada, no Cabinet minister chose to meet with him. When the Special Rapporteur expressed concerns of a "widespread problem of food insecurity" in Canada, government ministers chose to insult him rather than respond to his criticisms.
26. During the negotiations of the Nagoya Protocol, Canada and other Parties insisted on the term used in the 1993 Convention on Biological Diversity, namely, "indigenous and local communities" (rather than "indigenous peoples and local communities"). Despite use of the term "peoples" in Canada's Constitution, the government maintains the same position today.
27. With the historic adoption of the UN Declaration in 2007, the issue of “peoples” was resolved. Today, the term “indigenous peoples” is used consistently by the General Assembly, Office of the High Commissioner for Human Rights, Human Rights Council, treaty monitoring bodies, specialized agencies, special rapporteurs and other mechanisms within the international system.
28. For Canada to restrict or deny the status of Indigenous peoples as “peoples”, so that the effect is to impair or deny them their human rights constitutes racial discrimination. This violates the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. Impairing the status of Indigenous peoples is part of a broader strategy to undermine their rights in the Protocol, including the right to self-determination.
29. In 1999, the Human Rights Committee expressed its regret to Canada that "no explanation was given ... concerning the elements that make up [the concept of self-determination]" as it applies to Indigenous peoples in Canada. The Committee emphasized "the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence". Canada was urged "to report adequately on implementation of article 1 of the Covenant in its next periodic report." This request has not been fulfilled.
30. In regard to environment and development issues, Canada devalues the UN Declaration and avoids any specific mention of Indigenous peoples' human rights. A current example is the Northern Gateway pipeline, where the government has sought to discredit Indigenous peoples and environmental organizations opposing the project. Rather than apply the Declaration and acknowledge Indigenous environmental and human rights concerns, Canada has taken measures to unjustly influence the review process.
31. Without consultation with Indigenous peoples, the government has undemocratically adopted Bill C-38. This omnibus "budget" bill, inter alia: empowers the government to approve projects, even if they have been refused approval by the National Energy Board; enables the government to significantly limit the time period for environmental assessments; reduces fisheries protection for fish; significantly lowers the number of projects that will be assessed for environmental, social and economic impacts; restricts public participation in environmental assessment of projects; and reduces the number and types of projects that will be subjected to environmental assessment.
32. A prominent former federal Cabinet minister "has slammed Ottawa for failing to meet its constitutional obligations to consult first nations on West Coast pipelines". In an "open letter" to Canada's Prime Minister, four former ministers of Fisheries and Oceans in past federal governments expressed "serious concern regarding the content of Bill C-38 and the process being used to bring it into force."
33. In regard to Indigenous women and girls, there is a wide range of issues where they receive substandard treatment and continue to be discriminated against in Canada. A critical, ongoing concern is the violence against Aboriginal women – especially the hundreds of unresolved cases of missing and murdered Aboriginal women. As the Native Women's Association of Canada describes:
Despite our years of effort, our goal has not been achieved. Canada does not yet have in place a co-ordinated National Plan, with detailed and concrete measures, to address the root causes and remedy the consequences of the violence against Aboriginal women and girls. Some small steps have been taken, but when these steps are assessed against the long-standing and continuing pattern of violence and the harms that it causes to women, girls, families and communities, the response of the Government of Canada, and the provincial and territorial governments, remains weak, un-coordinated, and inadequate.
34. For Indigenous peoples, the human right to an effective remedy remains crucial. Yet when they seek a legal remedy in domestic courts, the Canadian government finds ways to delay such cases for years by arguing technicalities. Such an approach is inconsistent with principles of justice, fairness, cooperation and good faith.
35. From the time of Canada’s first UPR, Canada has failed to improve its record in promoting and protecting Indigenous peoples’ human rights. There is a broad range of issues where the government's conduct falls far short of its constitutional and international human rights obligations.
36. It is widely recognized that the core principles of domestic and international legal systems are "justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith". These are also the principles on which the UN Declaration is based.
37. As a key step – Canada, in conjunction with Indigenous peoples, must fully and effectively implement the UN Declaration in good faith. This entails ensuring that its policies, laws and other measures are consistent with the Declaration and a human rights-based approach.
Sincere thank you to Paul Joffe. Full copy with detailed footnotes available at:
UBCIC is a NGO in Special Consultative Status with the Economic and Social Council of the United Nations.