International Human Rights Law: Institutions and Procedures
October 6, 2006
JUR 5710
P. Canorivas, K. Postawa, M. Rusten, O.Jull
Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada. Canada. 10/05/90.
Communication No. 167/1984. Canada. 10/05/90. CCPR/C/38/D/167/1984.
FACTS: Chief Bernard Ominayak of the Lubicon Lake Band brought a communication under Art.
2 of the Optional Protocol against Canada, a state party to the protocol. He alleged a denial of the
“right to self-determination” of the Band, including the right to “freely dispose of their natural
wealth and resources” (Art. 1 ICCPR).
Individual Band members’ right to hunt, trap and fish in traditional lands is recognized under the
Indian Act and Treaty 8 of 1899. These activities are essential to maintain the subsistence
economy underpinning the Band’s distinctive culture, spirituality and language. Oil and gas
development in traditional lands threatened the environmental and economic base of the Band,
including the potential loss of natural resource revenues in lands subject to a land title dispute.
The complaint was brought to the Human Rights Committee after the Supreme Court of Canada
refused to hear an appeal from a decision of the Alberta Court of Appeal. The Court of Appeal
refused an injunction prohibiting all oil and gas development in the disputed lands, as the Band
failed to show ‘irreparable injury’ to its interests in the land claims negotiations. The land claim
and other legal proceedings remained unresolved when the ‘View’ was issued.
ISSUES:
1) Did the individual exhaust ‘all available’ domestic remedies, or was the application of the
remedies ‘unreasonably prolonged,’ according to Art. 5 of the Optional Protocol?
2) Did the individual claimant establish a violation of the ICCPR by the state party of
(a) a people’s right to self-determination under Art. 1?
(b) any of the other enumerated rights?
REASONING:
1) Exhaustion of Remedies
The Band submitted that the interim injunction was the only “effective and available” remedy
because by the time a final judgement recognizing aboriginal rights might achieved, further
resource development would effectively undermine the ability of the Band to enjoy these rights.
Canada submitted that the Band was responsible for delays in the litigation. ‘Domestic remedies’
means ‘all local procedures of redress,’ including concluding the unresolved land claims process.
The Committee noted that the “road of litigation would [not] have represented an effective method
of saving or restoring the traditional or cultural livelihood” of the Band.
2) Violations of the ICCPR
It was submitted that the destroying the economic base imperils the Band’s survival as a ‘people.’
Canada submits the Band is not a ‘people,’ and that this right cannot be invoked by an individual.
The Committee found that it cannot pronounce upon the existence of a ‘people’ under Art. 1. The
claim instead engaged the rights of persons under Art. 27 (minorities), “to engage in economic
and social activities which are a part of a culture of the community to which they belong.”
Individuals may invoke minority rights under Art. 27 but not the collective right to under Art. 1.
HOLDING: The Committee found “historical inequities . . . and recent developments threaten the
way of life and culture of the Lubicon Lake Band” and found Canada in violation of Art. 27.
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APPLICATION: The Optional Protocol is silent as to the binding nature Views issued by the
Human Rights Committee. This phrase ”in accordance with its constitutional processes” in Art.
2(2) of the ICCPR indicates that the implementation of treaty norms is a matter of domestic law.
DISCUSSION: The dualistic nature of Canadian law means that explicit implementing legislation
is necessary to invoke treaty norms in domestic courts. While this restrictive approach to treaty
interpretation may have delayed the implementation of the principles of the Lubicon Lake in
Canada, the Courts have developed a body of case-law to address these claims.
In particular, the ‘duty to consult and accommodate’ provides aboriginals with “positive legal
measures of protection and measures to ensure the effective participation . . . in decisions which
affect them” (General Comment No. 23: The Rights of minorities (Art. 27) (CCPR/C/21) par. 7).
The government’s duty to consult arises where there is a potential infringement of aboriginal
rights and requires the government reasonably accommodate these interests into decisionmaking. Only recently have Canadian courts recognized the uniqueness of aboriginal title and the
need for reconciliation with State sovereignty (Delgamuukw, 1997 CanLII 302 (S.C.C.)).
Canadian courts have been greatly influenced by the decision of the High Court of Australia in
Mabo ((1992) 66 A.L.J.R. 408). Brennan (now C.J.) invoked the Convention on the Elimination
Racial Discrimination (CERD) to reverse the 150 year old practice of terra nullis (discovery by a
European state establishes sovereignty) in Queensland. He found that continuing to deny the
existence of aboriginal title would “’destroy the equality’ of all Australian citizens before the law.”
The Supreme Court of Canada in Haida Nation and Taku River (released simultaneously 2004
SCC 73 (CanLII), 2004 SCC (CanLII) 74) in practice elaborated on the rationale from Lubicon
Lake and Länsman cases to develop a framework for the duty to consult. In Haida, the Court
ordered the government to reconsider its decision to grant a tree harvesting license for an old
growth forest subject to an unresolved aboriginal title claim. McLachlin C.J. wrote for the Court:
The jurisprudence of this Court supports the view that the duty to consult and
accommodate is part of a process of fair dealing and reconciliation that begins with the
assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is
not a final legal remedy in the usual sense. Rather, it is a process flowing from rights
guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows
from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in
turn from the Crown's assertion of sovereignty over an Aboriginal people and de facto
control of land and resources that were formerly in the control of that people. . .
To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant
legalistic goal, devoid of the "meaningful content" mandated by the "solemn commitment"
made by the Crown in recognizing and affirming Aboriginal rights and title . . . It also risks
unfortunate consequences. When the distant goal of proof is finally reached, the
Aboriginal peoples may find their land and resources changed and denuded. This is not
reconciliation. Nor is it honourable (par. 31 and 32).
Similar to the reasoning in Länsman, the decision notes ‘the scope of the duty is proportionate to
a preliminary assessment of the strength of the case supporting the existence of the right or title,
and to the seriousness of the potentially adverse effect upon the right or title claimed’ (par. 39).
The decision indicates that negotiation is the preferable way ‘to reconcile aboriginal and state
interests.’ Applications for temporary injunctions halting development ‘may diminish incentives on
the part of the successful party to compromise’ and lead to protracted disputes (par. 14).
The duty to consult now provides individual claimants with an effective domestic remedy before
the Courts and in regulatory proceedings where the enjoyment of aboriginal rights is infringed.
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