Symposium
Osgoode Hall, York University
Toronto, June 28, 2013
Paul Joffe, Barrister and Solicitor
Human rights … the common language of humanity ...
B. Boutros-Ghali, Opening Statement by the United Nations SecretaryGeneral, 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)
2

Residential school apology – from truth to
reconciliation

Indigenous peoples’ collective rights are human rights

Use of culture to deny human rights

Property rights – discrimination
3

UN Declaration – framework for justice and
reconciliation

Legal status and effects of UN Declaration

Declaration – consistent with Canada’s constitutional
framework

Conclusions and recommendations
4
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)
5
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
6
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
7
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
8
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.
9
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.
10
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
11
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.
12
… 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
13
... 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)
14
... 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
15
… 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
16
… 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-indigenouspeoples-rights-to-genetic-resources-and-traditional-knowledge
17
UN Declaration, art. 8(1)
Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their
culture.
18
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;
19
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
20
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
21
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.
22
… 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)
23
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
24
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
25
… 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)
26
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)
27
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.
28
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)
29
… the Declaration does not attempt to bestow indigenous
peoples with a set of special or new human rights, but rather
provides a contextualized elaboration of 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)
30
The various sources of international human rights law declarations, covenants, conventions, judicial and quasijudicial 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
31
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.
32
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
33
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
34
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))
35
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
36
[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
37
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, per LeBel J. at para. 79
38
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.
39

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.
40

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.
41

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.
42

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.
43
Symposium
Osgoode Hall, York University
Toronto, June 28, 2013
Paul Joffe, Barrister and Solicitor
44