A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: October, 2011

What is Decision 104 EX/3.3 and why should I care?

What it is: A complaint procedure for UNESCO

Why should I care: It provides an avenue to engage in a mediated discussion with the State on an issue of Education, Science, Culture or Information. Each of these issues may be relevant to First Nations in several obvious (Education, or the right to culture – which is well established in international law) and non-obvious ways (Access to Information and Accessibility of Information regarding state or non-state activities impacting on indigenous territories, for example)


Here are the admissibility criteria, lifted right out of Decision 104 EX /3.3:
the communication must not be anonymous; the communication must originate from a person or a group of persons who, it can be reasonably presumed, are victims of an alleged violation of any of the human rights referred to in paragraph (iii) below. It may also originate from any person, group of persons or non-governmental organization having reliable knowledge of those violations; the communication must concern violations of human rights falling within Unesco’s competence in the fields of education, science, culture and information and must not be motivated exclusively by other considerations; the communication must be compatible with the principles of the Organization, the Charter of the United Nations, the Universal Declaration of Human Rights, the international covenants on human rights and other international instruments in the field of human rights; the communication must not be manifestly ill-founded and must appear to contain relevant evidence; the communication must be neither offensive nor an abuse of the right to submit communications. However, such a communication may be considered if it meets all other criteria or admissibility, after the exclusion of the offensive or abusive parts; the communication must not be based exclusively on information disseminated through the mass media; the communication must be submitted within a reasonable timelimit following the facts which constitute its subject-matter or within a reasonable time-limit after the facts have become known; the communication must indicate whether an attempt has been made to exhaust available domestic remedies with regard to the facts which constitute the subject-matter of the communication and the result of such an attempt, if any; communications relating to matters already settled by the States concerned in accordance with the human rights principles set forth in the Universal Declaration of Human Rights and the international covenants on human rights shall not be considered;

For the sake of convenience, the good folks at UNESCO have even provided a form for those interested in filing complaints!

What happens next
UNESCO will acknowledge receipt and inform the state. I imagine they often request additional information from the victim. The state will also be permitted to reply to the complaint on the point of admissibility.

The complaint will be brought to the Committee on Conventions and Recommendations – the CR. The CR will decide on admissibility and will communicate its decision to the state and the complainant.

This is a confidential procedure, so the results on admissibility will not be published.

Assuming the communication is admissible, UNESCO will begin a process of conciliation between the parties. Although it is possible for UNESCO to make a finding that there has been a violation, it appears this has never happened.

Prospects for success/Is it useful:

Remember, this is a confidential procedure. I’ve never attempted to use it and I’ve never met anyone who has. I suspect, at best, it would provide mixed results and would recommend using it only in certain situations. The confidentiality and the limited expertise of UNESCO on human rights issues both suggest to me this is not the forum to go to if one wants redress, or even a strong public statement (contrasted to ILO Convention 111, for example).

However, it would appear to be an excellent choice if one wanted to engage in a confidential quasi-legal, quasi-political dialogue with a state. For example, if First Nations wanted to have a high-level national discussion on education or cultural matters (like language), the UNESCO procedure provides an interesting vehicle.

Ironically, this is precisely because the procedure requires confidentiality. It would allow for relatively focused and frank discussions, which might not lead to immediate action (or it might), but could lead to development of a longer term collaborative plan.

I’d suspect this would be the best that one could hope for here, but I can think of a few issues that could fit nicely into the UNESCO procedure.

International Labour Organization Convention 111 Part Two – ILO Procedures

Convention 111 – Why the ILO standard setting matters

Although my initial post on the Discrimination (Employment and Occupation) Convention (ILO Convention) 111 may have been overly optimistic, I would suggest the Convention may provide an important redress mechanism for indigenous peoples.

A couple of quick points about using the ILO system. First, experience with ILO 169 suggests the ILO procedure provides a focus on consultation with indigenous peoples, rather than direct redress for violations of obligations.

As with many ILO Conventions, there are multiple opportunities to engage Canada on alleged violations of the Discrimination (Employment and Occupation) Convention. With only one exception, aboriginal claimants would need the support of a trade union, in order to access the ILO procedures. The International Labour Organization consists of a tripartite arrangement between governments, employers and trade unions. The bodies of the ILO consist of representatives from these three sectors, and only governments, employers or trade unions are able to access the procedurs of the ILO.

As I stated in my last post, it seems pretty important to establish a good relationship with the union movement if aboriginal groups seek to access the ILO redress mechanisms. The reason is that the supervisory procedures of the ILO cannot be accessed directly by indigenous nations.

Some advantages to using ILO procedures include, I believe, that there is no requirement to exhaust domestic remedies prior to invoking Article 24 (see below for more on Article 24. See, for example, http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=65&chapter=16&query=Denmark%40ref&highlight=&querytype=bool&context=0 ). Nonetheless, I would imagine that representations should not be raised for the first time in a representation, as a matter of good practice.

Most of this material comes directly from the ILO website, which is remarkably helpful and accessible. I provide the link here:

Canada is required to provide a report on status of implementation of the Convention every two years. Aboriginal peoples may submit information directly to the ILO Committee of Experts, for their consideration in the reporting processes. This is the only opportunity for direct participation on compliance with obligations arising from the Discrimination (Employment and Occupation) Convention. It would be in the sole discretion of the Committee of Experts to raise these issues with Canada.

Another option
A trade union could submit a report to the Committee of Experts on the state of Canada’s compliance with the Convention. This option would not rely on the Secretariat to raise an issue with Canada, because a trade union has standing under the Convention to raise the issue directly.

Reports allow aboriginal claimants to raise general issues related to compliance with the Committee. They could also be used in order to raise specific situations, but an aboriginal group may desire that a particular issue receive more in-depth consideration.

Such supervisory functions are not to be underestimated because they provide any given issue additional profile, increasing legal and political pressure to resolve longstanding grievances. One of the greatest challenges of international indigenous rights advocacy is employing the right tools at the right time to encourage meaningful domestic response (rather than to compel particular actions from the Crown – usually the objective of domestic advocacy – i.e. litigation)

Representations (Article 24)

Under the International Labour Organization, an individual complaint is known as a “representation”, and the procedure for representations is governed by Article 24 of the International Labour Conference Convention.

A representation (not to be confused with the ILO’s Article 26 complaint mechanism) allows an aboriginal group to submit a specific issue for consideration by the Committee of Experts. It is a contentious procedure, in that it provides settlement of a dispute between parties to the ILO Convention by a distinterested expert panel. Whereas reporting mechanisms provide advice to parties on improving compliance with the Convention, complaint mechanisms may issue a statement that Canada is out of compliance, along with recommendations for bringing a state back into Compliance. These recommendations are legally binding on Canada.

Receivability Criteria (sometimes referred to as admissibility)
There are several requirements that must be met before a claimant can access the complaint mechanism of the Convention. The most basic requirement is that a representation must be submitted by a trade union.

(a) it must be communicated to the International Labour Office in writing;
(b) it must emanate from an industrial association of employers or workers;
(c) it must make specific reference to article 24 of the Constitution of the Organization;
(d) it must concern a Member of the Organization;
(e) it must refer to a Convention to which the Member against which it is made is a party; and
(f) it must indicate in what respect it is alleged that the Member against which it is made has failed to secure the effective observance within its jurisdiction of the said Convention.

Paragraph (b) requires that in order for a representation to be considered by the ILO, it must originate from a worker’s organization (like a trade union). Paragraphs (b) and (f) are examined substantively by the Officers of the Governing body, whereas the other receivability requirements are more procedural in nature.

For example, paragraph (e) states that while ILO 169 cannot found a complaint against Canada, Convention 111 could (because Canada has ratified C111, but has not ratified C169)

The officers of the Governing Body of the International Labour Conference make a determination on receivability and forward that determination to the Governing Body. If the Governing Body decides a representation is receivable, they strike a Committee to examine the representation in more detail.

The Committee will include one member of a worker’s organization, one member of an employer’s organizations and one state member of the Governing Body. The Committee then proceeds to investigate the represetation.

If a violation of one of the ILO Conventions is found by the Committee, it drafts a report which is forwarded to the Governing Body. If the Governing Body approves the report, the report is then published, ending the Article 24 procedure. It is, in theory, possible for a representation to lead to a complaint after a report is published.

Complaints (Article 26)
From the ILO website (just to show how out of touch I am):

  • The complaint procedure is governed by articles 26 to 34 of the ILO Constitution. The procedure was originally intended to resolve disputes between member States, one State invoking the non-compliance of another State with a Convention that both had ratified. However, the right to file a complaint was extended to Conference delegates, and the procedure may also be employed ex officio by the Governing Body. The latter is entitled, subsequent to the filing of a complaint, to form an ad hoc Commission of Inquiry.
  • The Commission of Inquiry, which is comprised of three independent members, is responsible for carrying out a full investigation of the complaint, for ascertaining all the facts of the case and for making a report recording its recommendations concerning the measures to be taken to answer the complaint.
  • The Report of the Commission of Inquiry is then submitted to the Governing Body. Within a period of three months, the government must indicate to the Director-General of the ILO whether or not it accepts the recommendations contained in the report of the Commission of Inquiry. In the event that it does not accept them, it may submit the dispute to the International Court of Justice, whose decision shall be final.

This can be found at http://www.ilo.org/ilolex/english/art2426e.htm (Again, the ILO website has a number of remarkably helpful resources — and is very much under appreciated in Canada – at leas among indigenous rights advocates)

I had the apparently outdated impression that the Article 26 procedure could only be invoked by one state (or perhaps the Governing Body) that another state is out of compliance with one or more obligations under the ILO Conventions.

However, it appears “Conference delegates” have the right to file a complaint. This would include workers representatives (unions), a significant expansion in terms of accessibility of the complaints procedure.

This is a matter I’d love to confirm with the ILO Secretariat because it raises the stakes of non-compliance with the ILO Conventions (the prospect of proceedings between indigenous peoples and states in the International Court of Justice are either grave or exciting, depending on one’s perspective)

Jurisdiction and Health

Health Care – (When) is it a federal matter?

I have yet to read a really good case on provision of traditional medicine in Canada (either in terms of ‘health delivery’ or, more interesting to me, ability to access (or harvest) medicines from clean environments.

However, a couple of recent developments really makes me wonder about First Nations health care, and particularly, where courts prefer jurisdiction over First Nations health to be allocated: federally or provincially. A bit of a disturbing exercise, because very few governmental activities of an indigenous nation lend themselves better to inherent jurisdiction and sovereignty than access to and application of traditional medicines.

I’m writing about Pierre v. Bertrand and another, 2011 BCHRT 284 and United Nurses of Alberta v Aakom-Kiyii (Peigan/Piikani) Health Services, 2011 CanLII 62485 (AB LRB). These are proceedings in provincial administrative tribunals (human rights and labour, respectively) and one of the issues in each decision is whether delivery of health services on-reserve is a federal or provincial matter.

The stakes can be a bit high because if the matter is decided to be ‘federal’ in character, then provincial boards lack jurisdiction, and the matter must be filed with the relevant federal board or tribunal(if possible, by the time a claimant gets a decision out of a provincial tribunal on jurisdiction, they may be out of time to file in a federal tribunal).

In United Nurses of Alberta, the board was influenced by the fact that health care is delivered pursuant to provincial standards and nurses must be licensed by the provincial regulator. I know of no First Nations that have attempted to develop regulatory bodies for professionals (doctors, lawyers, engineers or nurses), and I suspect such an attempt would meet a stiff challenge from one or more provinces.

The board concluded,at paragraph 43, “Although federally registered corporations, the two organizations are not federal works or undertakings nor are the nurses federal public servants. The nurses are not employees of Health Canada nor are they employed by the federal government.” This is an interesting conclusion, and illustrates one of the dangers of health transfer (the practice of devolving control from the federal government to First Nations).

Without knowing more particulars, its very curious to me that the Blood tribe would be considered a ‘federal undertaking’ (which, I admit, I’m only assuming it would), whereas the Blood tribe Department of Health would not.

A much more interesting point here is that if provision of health services is a provincial matter, then its quite possible that differences between health delivery in non-native communities and in First Nations may be sufficiently comparable to sustain a human rights challenge. For example, one might challenge health outcome or availability of particular procedures. This is a bit of an issue because the province likely does not provide funding for this particular provincial undertaking.

Pierre v. Bertrand and another involves a very similar argument. Pierre was argued before a human rights tribunal, rather than a labour relations board. Similar to United Nurses, the First Nation respondent asserted that as a federal undertaking, provincial human rights legislation does not apply to its Health Department (rather, the claimant must pursue remedies at the Canadian Human Rights Commission). The First Nation asserted that “the delivery of health services on the reserve is governed by s. 81(1)(a) of the Act” (at para 8). This same argument was rejected by the Alberta Labour Board in United Nurses (at para. 44 – because the legislative authority under s. 81(1)(a) of the Indian Act had not, in fact, been exercised).

The Tribunal in Pierre held that the Nak’azdli Health Department is a federal undertaking (and noted that similar conclusions had been reached with respect to the Nisga’a Valley Health Board and the Lax Kw’alaams Health Department). As a result, provincial legislation which would impair provision of health services is beyond the legislative authority of the provincial legislature (ultra vires).

The United Nurses reasons place much more emphasis on the “health” aspect of the case, rather than on s.91(24). Leading to the question of whether health itself is within the provincial or federal legislative competence. This is important because if health is exclusively ‘provincial’, then the only recourse for First Nations seeking to exercise jurisdiction over health matters is through a treaty or a s.35 challenge (or possibly s. 25). However, if the federal Parliament retains some legislative jurisdiction, First Nations may be able to use other levers to assert health jurisdiction (like s.81 of the Indian Act)

In the much-publicized Insite decision (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (CanLII)), the court refused to apply the doctrine of interjurisdictional immunity in favour of the province. In that case, claimants argued that because health care is within the ‘core’ of provincial powers, federal criminal legislation impacting on provincial health care programming is beyond the legislative capacity of the federal Parliament.

This is an interesting argument, mainly because I’m not aware of any instances in which interjurisdictional immunity has been applied to strike down federal legislation.

This argument was unsuccessful, consistent with a trend in the Supreme Court to be very conservative with application of the doctrine of interjurisdictional immunity.

At para 61, “In Canadian Western Bank, the majority stated that “although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute” (para. 47).”

And to hit the matter over the head, the court states at para 65, “in areas of overlapping jurisdiction, the modern trend is to strike a balance between the federal and provincial governments, through the application of pith and substance analysis and a restrained application of federal paramountcy.”

This is interesting to me mainly for the court’s remarks about aboriginal law. The conservative approach the Court takes on interjurisdictional immunity is manifested by recognition of the doctrine only in limited, established and defined areas of law:
“The doctrine has also been applied to federal things like Aboriginal land, and federally regulated persons such as Aboriginal peoples: Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 S.C.R. 285; Natural Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC), [1976] 2 S.C.R. 751; see also Canadian Western Bank, at para. 41. It has never been applied to a broad and amorphous area of jurisdiction.”

I’m glad aboriginal law is not perceived to be a ‘broad and amorphous area of jurisdiction’. This means that the law of interjurisdictional immunity remains the same with respect to s. 91(24) and also means there remain multiple vehicles for First Nations to exert jurisdiction over matters related to health.

Although I’d still love to see a claim to inherent jurisdiction over ‘traditional’ healing practices and access to medicines. Seems a bit more relevant to reconciliation than jurisdictional arguments arising out of a document – the British North America Act – that First Nations had no role in drafting (and likely had little knowledge of the document’s existence until several years after it came into force)