September 23, 2014
Prime Minister Stephen Harper
Foreign Affairs Minister John Baird
AANDC Minister Bernard Valcourt
Foreign Affairs Minister John Baird
AANDC Minister Bernard Valcourt
We are writing to you on an urgent basis to express our
extreme disappointment in Canada’s positions and conduct yesterday at the
High-Level Plenary Meeting known as the World Conference on Indigenous Peoples
at the General Assembly in New York.
In his Opening Remarks, UN Secretary Ban Ki-moon set a high
standard and principled tone for the Conference: “Indigenous peoples are
central to our discourse of human rights and global development. Your
deliberations and decisions will reverberate across the international community
… The success of this Conference is integral to progress for all humanity.”
All States in the General Assembly agreed by consensus to
the Outcome Document. Canada was the sole State in the world that requested an
Explanation of Vote (EOV). Since Canada was unprepared to speak, it indicated
that it would provide its EOV in writing.
Our deep-seated concerns with Canada’s EOV include the
following.
Canada cannot accept para. 3 of Outcome Document on FPIC.
Para. 3 reflects article 19 of the UN Declaration. Yet Canada indicated in its
EOV: "Agreeing to paragraph 3 of the Outcome Document would commit Canada
to work to integrate FPIC in its processes with respect to implementing
legislative or administrative measures affecting Aboriginal peoples. This would
run counter to Canada’s constitution, and if implemented, would risk fettering
Parliamentary supremacy." However, with the enactment of the Constitution
Act, 1982, "the Canadian system of government was transformed to a
significant extent from a system of Parliamentary supremacy to one of
constitutional supremacy." (Reference re Secession of Québec, para. 72) In
Tsilhqot'in Nation, the Supreme Court ruled that, in the absence of Aboriginal
consent, "legislation may be rendered inapplicable going forward to the
extent that it unjustifiably infringes Aboriginal title." (para. 92)
FPIC constitutes a "veto". The term
"veto" does not exist in the UN Declaration. Canada has never
explained what constitutes "consent" and what "constitutes a
"veto". Is "veto" absolute? Is "veto" synonymous
with "consent"? The government has refused for years to discuss or
explain its positions. The right to FPIC is not absolute. No rights in the
Declaration are absolute, except for the right not to be subjected to genocide.
In international human rights law, human rights are generally relative and not
absolute.
Canada interprets FPIC as only consultation – not consent.
This is incorrect. In Tsilhqot'in Nation, the Supreme Court used the term
"consent" in 9 paragraphs and the "right to control" the
land in 11 paras. The Court added that the "right to control" means
"consent" must be obtained from Aboriginal titleholders. It is wrong
for Canada to claim that para. 3 of the Outcome Document – which reflects FPIC
in the Declaration – would "run counter to Canada's Constitution".
Canada cannot disregard the rulings of its highest Court.
Canada cannot support para. 4 of Outcome Document. Para. 4
indicates that States will "uphold the principles of the
Declaration". The government is treating the principles in the UN
Declaration as absolute and therefore inconsistent with Canadian law. In regard
to the Declaration, Canada indicated in 2012 to the UN
Committee on the Elimination on Racial Discrimination: "While [the
Declaration] had no direct legal effect in Canada, Canadian courts could
consult international law sources when interpreting Canadian laws, including
the Constitution." (CERD, Summary record of 1242nd meeting on 23 February
2012, UN Doc.CERD/C/SR.2142 (2 March 2012), para. 39)
Canada contradicted its own endorsement. All of the above
arguments by Canada contradict its own endorsement of the UN Declaration. In
its endorsement, the government ultimately concluded: "We are now
confident that Canada can interpret the principles expressed in the Declaration
in a manner that is consistent with our Constitution and legal framework."
In its EOV, Canada reproduced many aspects of its endorsement. However, the
government intentionally omitted the above key conclusion. This constitutes bad
faith. Canada has failed to uphold the honour of the Crown. Canada has misled
the General Assembly, member States and Indigenous peoples globally.
Further, on 1 May 2008, over 100 scholars and experts in
Canadian constitutional and international law signed an "Open Letter"
indicating that the Declaration was "consistent with the Canadian
Constitution and Charter ... Government claims to the contrary do a grave
disservice to the cause of human rights and to the promotion of harmonious and
cooperative relations." Your government was provided with a copy of the
Open Letter in May 2008.
No customary international law in Declaration. According to
the September 2010 Report to the UN Human Rights Council by former Special
Rapporteur James Anaya, this position of Canada on customary international law
is "manifestly untenable" (UN Doc. A/HRC/15/37/Add.1 (15 September
2010), para. 112). For example, it is widely accepted internationally that the
prohibition against racial discrimination and the right of self-determination
constitutes customary international law – both of which are in the Declaration.
In regard to the right of self- determination, Canada argued it was customary
international law before the Supreme Court in Reference re Secession of Québec.
Moreover, according to the two human rights Covenants, Canada has an
affirmative obligation to promote and respect this collective human right.
Canada as protector of Indigenous rights. It is inaccurate
for Canada to claim that it "is committed to promoting and protecting the
rights of Indigenous peoples at home and abroad". For example, Canada's
impoverished position in the Tsilhqot'in Nation case that Aboriginal title as limited to small spots was soundly
rejected by the Supreme Court. Canada's current attempt to undermine Indigenous
peoples' status as "peoples" within the Convention on Biological
Diversity is one of many international examples.
Canada's failure to consult Indigenous peoples. The ongoing
failure to consult Indigenous rights-holders for many years leaves Canada in a
position where it continues to violate the UN Declaration and – before the
"ink is dry" – the consensus Outcome Document for the WCIP. This
repeated failure to consult violates Canada's duty under Canadian constitutional
and international law.
As you are aware, Indigenous peoples in Canada and globally
worked diligently and cooperatively with States for 30 years on the
formulation, adoption and implementation of the UN Declaration on the Rights of
Indigenous Peoples. It is unacceptable that Canada is the sole State in the
world challenging this consensus human rights instrument – particularly with
false arguments.
In light of the seriousness of the actions of the Canadian
government, we respectfully call for a complete retraction of Canada’s EOV
without qualification. Should Canada fail to retract its EOV by 6 p.m. today,
we will have no choice but to immediately write to the President of the General
Assembly, member States and Indigenous peoples globally to express the above
concerns and challenge the veracity of Canada's EOV.
Respectfully,
Assembly of First Nations
Native Women’s Association of Canada
Grand Council of the Crees (Eeyou Istchee)
First Nations Summit
Federation of Saskatchewan Indian Nations
Indigenous World Association
Amnesty International
Canadian Friends Service Committee
Union of BC Indian Chiefs
American Indian Law Alliance
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