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United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013.

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Presentation on theme: "United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013."— Presentation transcript:

1 United Nations Declaration on the Rights of Indigenous Peoples LEXPERT – Aboriginal Law 2013

2 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 2

3 Overview Timeline  1985: U.N. Working Group on Indigenous Populations (“WGIP”) (independent experts) decided to create a declaration on Indigenous rights  : 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 changes  1995: 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 3

4 Overview Timeline, 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 4

5 Overview U.N. Adoption of Declaration  Adopted 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 5

6 Overview 2007: Canada voted against Declaration  Canada 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 Declaration  Canada gave both procedural and substantive reasons for voting against adoption of Declaration 6

7 Overview Procedural Reasons  Canada proposed further, open and transparent negotiations with effective involvement of Indigenous peoples – this did not occur  Canada proposed amendments to ensure the Declaration could be interpreted in accordance with each state’s Constitutional framework – these were not accepted  Last-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 7

8 Overview Canada’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 8

9 Overview Incompatible with Canada’s Constitution Lands, territories and resources  Article 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 9

10 Overview Incompatible with Canada’s Constitution Lands, territories and resources  Article 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 10

11 Overview Incompatible with Canada’s Constitution Free, prior and informed consent  Article 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. 11

12 Overview Incompatible with Canada’s Constitution Free, prior and informed consent  Canada’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” 12

13 Overview Incompatible with Canada’s Constitution Self-government  Article 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 13

14 Overview Criticism 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 14

15 Overview Incompatible with Canada’s Constitution Balancing of Rights  Declaration 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. 15

16 Overview Canada eventually adopted the Declaration  November 12, 2010: Canada issued a Statement of Support endorsing the Declaration  Reasons: 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 16

17 Overview Caveats 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 17

18 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 HAVE ABORIGINAL PEOPLE DON’T HAVE ABORIGINAL PEOPLE TOTAL IN FAVOR AGAINST404 ABSTAIN110 ABSENT31334 TOTAL

19 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 19

20 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 20

21 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 21

22 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 22

23 Commentary States 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/or 3. 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 caveat  Those 9 countries agreed to the Declaration, but not without qualification 23

24 Concluding Comments Canada’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 24

25 Concluding Comments Legal Effect of Declaration Two possible ways Declaration could have a direct legal effect and become binding: 1. Customary International Law  Some 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 Courts  Judges may take Declaration into account when considering Aboriginal rights  SCC has repeatedly ruled that declarations and other international instruments are relevant and persuasive sources of interpretation of domestic human rights 25

26 Concluding Comments Legal 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 activities  In 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 26

27 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. 27

28 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 28

29 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 29

30 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 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 & Harcourt Suite 2500, TransCanada Tower 450 – 1 st Street SW Calgary, AB T2P 5H1 Calgary:(403) Vancouver:(604) Toronto:(416) Fax:(403)

31 Osler Contact Offices 31 TORONTO PO Box 50 1 First Canadian Place 100 King Street West, Suite 6100 Toronto, ON M5X 1B8 Phone: Fax: Reception: ext. #6480 TOLL FREE: OTTAWA Suite 1900, 340 Albert Street Ottawa, ON K1R 7Y6 Phone: Fax: Reception: ext. #2000 TOLL FREE: CALGARY Suite 2500, TransCanada Tower Calgary, Alberta T2P 5H1 Phone: Fax: Reception: ext. #7000 TOLL FREE: MONTRÉAL 1000, rue de La Gauchetière Ouest Bureau 2100 Montréal, QC H3B 4W5 Phone: Fax: Réception: ext. #8100 TOLL FREE: NEW YORK 36 Floor Avenue New York, NY U. S. A. Phone: Fax: Reception: ext. #2506 TOLL FREE:


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