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Symposium Osgoode Hall, York University Toronto, June 28, 2013

Linking Arms Together Residential Schools, Reconciliation and the United Nations Declaration on the Rights of Indigenous Peoples. Symposium Osgoode Hall, York University Toronto, June 28, 2013 Paul Joffe, Barrister and Solicitor. Human rights … the common language of humanity ...

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Symposium Osgoode Hall, York University Toronto, June 28, 2013

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  1. Linking Arms TogetherResidential Schools, Reconciliation and the United Nations Declaration on the Rights of Indigenous Peoples Symposium Osgoode Hall, York University Toronto, June 28, 2013 Paul Joffe, Barrister and Solicitor

  2. Human rights … the common language of humanity ... B. Boutros-Ghali, Opening Statement by the United Nations Secretary-General, World Conference on Human Rights, 1993 We [Heads of State and Government] reaffirm that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations. Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, GA Res. 67/1, 24 September 2012 (adopted without vote)

  3. Topics • Residential school apology – from truth to reconciliation • Indigenous peoples’ collective rights are human rights • Use of culture to deny human rights • Property rights – discrimination

  4. Topics (cont’d) • UN Declaration – framework for justice and reconciliation • Legal status and effects of UN Declaration • Declaration – consistent with Canada’s constitutional framework • Conclusions and recommendations

  5. 1. Residential school apology – from truth to reconciliation Acknowledging in cases of gross violations of human rights … the need to study the interrelationship between the right to the truth and the right to access to justice, the right to obtain effective remedy and reparation and other relevant human rights … (preamble) Recognizes the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights … (para. 1) Human Rights Council, Right to the truth, UN Doc. A/HRC/21/7 (27 September 2012) (adopted without vote)

  6. 1. Residential school apology – from truth to reconciliation Duty to Preserve Memory A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights … and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments. Rome Statute on the International Criminal Court, art. 7 (Crimes against humanity), Principle 3

  7. 1. Residential school apology – from truth to reconciliation Reconciliation is about healing relationships, building trust, and working out differences. … Reconciliation must meet concerns about both the past and the future. Brian Rice and Anna Snider, “Reconciliation in the Context of a Settler Society: Healing the Legacy of Colonialism in Canada” in Marlene Brant Castellano, Linda Archibald and Mike DeGagné, eds., From Truth to Reconciliation: Transforming the Legacy of Residential Schools (Ottawa: Aboriginal Healing Foundation, 2008) 45 at 45-46

  8. 1. Residential school apology – from truth to reconciliation Reconciliation process in severe crisis – examples re Canadian government: • Opposes Indigenous peoples in virtually every court case relating to their Aboriginal and treaty rights • Continues to invoke the racist doctrine of “discovery” in litigation regarding Aboriginal rights and title • Violated the rule of law since 2006, by refusing to consult and accommodate Indigenous peoples on its potentially adverse positions on UN Declaration • Lobbied States with abusive human rights records to not support UN Declaration • Continues to devalue UN Declaration, even after Canada’s endorsement

  9. 1. Residential school apology – from truth to reconciliation Reconciliation process in severe crisis – examples re Canadian government: • Does not acknowledge Indigenous peoples’ collective rights are human rights • Does not consult and accommodate Indigenous peoples on their rights, when taking potentially adverse positions in international forums • Refuses to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty • Impedes Indigenous peoples’ human right to an effective remedy in court cases, through excessive strategies to delay • Adopted omnibus “budget” laws that weaken environmental and other safeguards essential for Indigenous peoples.

  10. 2. Indigenous peoples’ collective rights are human rights Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development − Economic, social and cultural rights − Civil and political rights − Rights of peoples, and specific groups and individuals Human Rights Council, Institution-building of the United Nations Human Rights Council, Res. 5/1 (18 June 2007), Annex – Agenda and Framework for the Programme of Work, Item 3.

  11. 2. Indigenous peoples’ collective rights are human rights All human rights are universal, indivisible, interdependent and interrelated. … While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and freedoms. Vienna Declaration and Programme of Action, adopted by World Conference on Human Rights, June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), para. 5

  12. 2. Indigenous peoples’ collective rights are human rights UN Declaration, art. 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations … and international human rights law.

  13. 2. Indigenous peoples’ collective rights are human rights … human rights have a dual nature. Both collective and individual human rights must be protected; both types of rights are important to human freedom and dignity. They are not opposites, nor is there an unresolvable conflict between them. The challenge is to find an appropriate way to ensure respect for both types of rights without diminishing either. Canadian Human Rights Commission, “Still A Matter of Rights”, A Special Report of the Canadian Human Rights Commission on the Repeal of Section 67 of the Canadian Human Rights Act (January 2008), at 8

  14. 3. Use of culture to deny human rights ... the incredible damage – loss of life, denigration of culture, destruction of self-respect and self-esteem, rupture of families, impact of these traumas on succeeding generations, and the enormity of the cultural triumphalism that lay behind the enterprise – will deeply disturb anyone who allows this story to seep into their consciousness … Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back (Ottawa: Canada Communication Group, 1996), vol. 1, at 601-602 (re residential schools)

  15. 3. Use of culture to deny human rights ... indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources … UN Declaration, sixth preambular para. … courts must take judicial notice of … the history of colonialism, displacement, and residential schools … how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. R.v. Ipeelee, 2012 SCC 13, para. 60

  16. 3. Use of culture to deny human rights … the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist … International Convention on the Elimination of All Forms of Racial Discrimination, preamble ... continuation of colonialism in all its forms and manifestations [is] a crime which constitutes a violation of the Charter of the United Nations ... and the principles of international law ... General Assembly, Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Resolution 2621 (XXV), October 12, 1970, para. 1

  17. 3. Use of culture to deny human rights … contemporary international law prohibits discrimination against indigenous peoples' because of the particularities of their cultures. Statement by Professor James Anaya, Special Rapporteur on the rights of indigenous people, 4 February 2013, at World Intellectual Property Organization, http://unsr.jamesanaya.org/statements/statement-indigenous-peoples-rights-to-genetic-resources-and-traditional-knowledge

  18. 3. Use of culture to deny human rights UN Declaration, art. 8(1) Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

  19. 3. Use of culture to deny human rights UN Declaration, art. 8(2) States shall provide effective mechanisms for prevention of, and redress for:   (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;   ... (d) Any form of forced assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;

  20. 3. Use of culture to deny human rights The provision of effective and meaningful judicial remedies should be a key component of the legal protection of Aboriginal rights if those rights are not to be second class constitutional rights. … [D]istinctiveness should not be an excuse for not giving Aboriginal rights the same generous treatment as other constitutional rights. Kent Roach, Constitutional Remedies in Canada (Toronto, Ontario: Thomson Reuters Canada Limited, 2013), ¶ 15.170

  21. 4. Property rights - discrimination European explorers considered that by virtue of the "principle of discovery" they were at liberty to claim territory in North America on behalf of their sovereigns ... While it is difficult to rationalize that view from a modern perspective, the history is clear. Tsilhqot'in Nation v. British Columbia, 2012 BCCA 285, para. 166

  22. 4. Property rights - discrimination Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere ... International Convention on the Elimination of All Forms of Racial Discrimination, preamble. See also UN Declaration, preambular para. 4.

  23. 4. Property rights - discrimination … use of notions of discovery and conquest to find Indians rights diminished and subordinated to plenary congressional power is linked to colonial era attitudes toward indigenous peoples that can only be described as racist. (para. 16) … the federal courts should interpret, or reinterpret, relevant doctrine, treaties and statutes in light of the Declaration, both in regard to the nature of indigenous peoples’ rights and the nature of federal power. (para. 105) Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, Addendum: The situation of indigenous peoples in the United States of America, UN Doc. A/HRC/21/47/Add.1 (30 August 2012)

  24. 4. Property rights - discrimination If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. Mabo et al. v. State of Queensland, (1992) 107 A.L.R. 1 (High Court of Australia), per Brennan J., at 28 … the analysis of the basis of aboriginal title in the landmark decision of the High Court in Mabo v. Queensland … is persuasive in the Canadian context. R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 38, per Lamer C.J. for the majority

  25. 4. Property rights - discrimination The Committee notes ... that to date, no Aboriginal group has proven Aboriginal title, and recommends that the State party examine ways and means to facilitate the establishment of proof of Aboriginal title over land in procedures before courts. Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Canada, CERD/C/61/CO/3 (23 August 2002), para. 16

  26. 4. Property rights - discrimination … the governments of Canada and British Columbia have used every means in their power from 1982 until today to deny to First Nations the benefits that they would enjoy if their titles were recognized. In the 30 years since constitutional recognition was given to aboriginal title, one or the other or both governments have fought every case where a claim for a declaration of aboriginal title has been asserted in court. Douglas Lambert, "Three Points About Aboriginal Title", (2012) 70 The Advocate 349 at 349 (Point 1: Continuation of Past Discrimination)

  27. 5. UN Declaration – framework for justice and reconciliation The Declaration is a visionary step towards addressing the human rights of indigenous peoples.  It sets out a framework on which States can build or rebuild their relationships with indigenous peoples. … [I]t provides a momentous opportunity for States and indigenous peoples to strengthen their relationships, promote reconciliation and ensure that the past is not repeated. UN Secretary-General (Ban Ki-moon), “Protect, Promote, Endangered Languages, Secretary-General Urges in Message for International Day of World’s Indigenous People”, SG/SM/11715, HR/4957, OBV/711 (23 July 2008)

  28. 5. UN Declaration – framework for justice and reconciliation The rights of indigenous peoples have remained a priority for the OHCHR and, in pursuing this priority, the Declaration on the Rights of Indigenous Peoples was the Office’s key reference and framework for action. Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples, UN Doc. A/HRC/21/23 (25 June 2012), para. 34 (Conclusions). OHCHR is the Office of the UN High Commissioner for Human Rights.

  29. 5. UN Declaration – framework for justice and reconciliation The Declaration provides a principled framework that promotes a vision of justice and reconciliation. In our considered opinion, it is consistent with the Canadian Constitution and Charter and is profoundly important for fulfilling their promise. Government claims to the contrary do a grave disservice to the cause of human rights and to the promotion of harmonious and cooperative relations. “UN Declaration on the Rights of Indigenous Peoples: Canada Needs to Implement This New Human Rights Instrument”, Open Letter, May 1, 2008 (signed by more than 100 legal scholars and experts)

  30. 5. UN Declaration – framework for justice and reconciliation … the Declaration does not attempt to bestow indigenous peoples with a set of special or new human rights, but rather provides a contextualized elaborationof general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples. The standards affirmed in the Declaration share an essentially remedial character ... Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya, UN Doc. A/HRC/9/9 (11 August 2008), para. 86 (Conclusions)

  31. 6. Legal status and effect of UN Declaration The various sources of international human rights law - declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms - must, in my opinion, be relevant and persuasive sources for interpretation of the Charter's provisions. Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at 348

  32. 6. Legal status and effect of UN Declaration International instruments such as the [UN Declaration on the Rights of Indigenous Peoples] and the Convention on the Rights of the Child may also inform the contextual approach to statutory interpretation ... First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2012 FC 445 (Federal Court of Canada), para. 353.

  33. 6. Legal status and effect of UN Declaration While [the UN Declaration] had no direct legal effect in Canada, Canadian courts could consult international law sources when interpreting Canadian laws, including the Constitution. Committee on the Elimination of Racial Discrimination, “Nineteenth and twentieth periodic reports of Canada (continued)", Summary record of 1242nd meeting on 23 February 2012, UN Doc. CERD/C/SR.2142 (2 March 2012), para. 39

  34. 6. Legal status and effect of UN Declaration The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within the scope and definition of s. 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples. (para. 25) R. v. Van der Peet, [1996] 2 S.C.R. 507, per Lamer C.J. for the majority

  35. 7. Declaration – consistent with Canada’s constitutional framework UN Declaration … indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such (preambular para. 2) Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (para. 3) The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. (art. 46(3))

  36. 7. Declaration – consistent with Canada’s constitutional framework States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. UN Declaration, art. 38 Cooperation is the animating force. The federalism principle upon which Canada's constitutional framework rests demands nothing less. (para. 133) Reference re Securities Act, [2011] 3 S.C.R. 837

  37. 7. Declaration – consistent with Canada’s constitutional framework [Section 35 of the Constitution Act, 1982] serves to confirm the status of Aboriginal peoples as equal partners in the complex federal arrangements that make up Canada. It provides the basis for recognizing Aboriginal governments as constituting one of three orders of government in Canada ... Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Canada Communication Group, 1996), vol. 2(1), para. 168

  38. 7. Declaration – consistent with Canada’s constitutional framework A constitution ... is drafted with an eye to the future ... It must … be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 155 … a further principle underlying our constitutional arrangement is respect for human rights and freedoms. R. v. Demers, (2004) 2 S.C.R. 489, perLeBel J. at para. 79

  39. 7. Declaration – consistent with Canada’s constitutional framework As a normative expression of the existing international consensus regarding the individual and collective human rights of indigenous peoples … the Declaration on the Rights of Indigenous Peoples provides a framework for action aiming at the full protection and implementation of the rights of indigenous peoples, including their right to participate in decision-making. Human Rights Council, Final report of the study on indigenous peoples and the right to participate in decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/18/42 (17 August 2011), Annex – Advice No. 2 (2011), para. 4.

  40. 8. Conclusions and recommendations • The process of reconciliation in Canada is in severe crisis. Reconciliation is not possible, as long as governments continue to undermine Indigenous peoples’ human rights. Good governance is not being achieved and the honour of the Crown not upheld. • The residential school apology has not resulted in government actions that respect, protect and fulfill Indigenous peoples’ human rights. Underlying constitutional principles – such as democracy, federalism, and rule of law – are being seriously violated.

  41. 8. Conclusions and recommendations • Ongoing actions perpetuate impoverishment, erode cultural integrity and constitute racism. On these and other essential issues, the right of Indigenous peoples to an effective legal remedy is not being realized. • The UN Declaration on the Rights of Indigenous Peoples is a consensus universal human rights instrument. The principles in the Declaration are consistent with Canada’s constitutional framework and serve to strengthen it. • It is critical for Canadian courts and governments to adopt a human rights-based approach, in conformance with the United Nations Declaration and other international human rights law.

  42. 8. Conclusions and recommendations • It is important to build or rebuild strong Indigenous nations and ensure the well-being of present and future generations. In diverse situations, redress, including restitution, is required. • State measures should generally be devised and carried out, in consultation and cooperation with Indigenous peoples. Consistent with the right of self-determination, the jurisdictions of Indigenous governments and other institutions must be respected.

  43. 8. Conclusions and recommendations • Genuine reconciliation must effectively address past and present human rights violations suffered by Indigenous peoples and individuals. Such violations must not be repeated. • What transpired in residential schools is an integral part of Canada's history. The UN Declaration is a blueprint for achievement, well-being and renewed hope for the future. Both should be a part of human rights education in schools across the country.

  44. THANK YOU! Symposium Osgoode Hall, York University Toronto, June 28, 2013 Paul Joffe, Barrister and Solicitor

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