A reconciliation project

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

Month: November, 2012

Senate Study on Human Rights

The Standing Committee on Human Rights at the Canadian Senate is conducting a study on human rights of First Nations “people” living off-reserve. http://www.parl.gc.ca/Content/SEN/Committee/411/ridr/press/14NOV12-e.htm

I haven’t been following these hearings, mainly because I’m hardly convinced the Standing Committee has a good grasp on the human rights of indigenous peoples. I’ll devote this post to articulating why I don’t have faith in these hearings, or alternatively, what I think the Senate should be asking in order to present a full and fair study of the human rights situation of off-reserve First Nations citizens.

This could be simply an artifact of the tone and tenor of political discourse in Ottawa. Dr. Pam Palmater, certainly thinks so, as articulated in her most recent post on Indigenous Nationhood, here: http://indigenousnationhood.blogspot.ca/2012/11/eyes-wide-shut-chasing-section-35-and.html. I think she makes a lot of very good points about general problems with aboriginal rights law and a very valid criticism of the limitations of ‘using’ s. 35 (or aboriginal rights arguments generally) as the sole basis to support recognition of inherent rights in Canada. It’s only one of many, each of which should (ideally) be mutually reinforcing. However, I digress.

Subjects of Study
A close examination of the subjects being studied by the Committee reveal a heavy focus on ‘individual’ human rights. The major exception to this *may* be the issue of ‘participation in band decision-making’. I say ‘may’ because this could be viewed in terms of the individuals rights to participation in governance of a collective or it could be viewed in terms of regulating the collective’s ability to self-govern. These two concepts are very closely related, but are actually quite distinct. One deals in the individuals right to participate in (presumably) democratic decision-making processes. The other deals in a collective’s human right to manage its own affairs.

Individual v Collective Rights
The distinction between individual rights and collective rights is very subtle and very difficult to understand. I often wonder how good a grasp on this I have myself. But the distinction is real and it is, in fact, the core issue which differentiate indigenous rights (or indigenous human rights, if you prefer to be more precise to this context) from more ‘general’ human rights law.

The law of human rights of particular groups is often defined by the historic and continuing challenges those groups face. This is why there are a set of human rights rules which deal specifically with gender issues, children’s issues or racial discrimination issues. To be precise, one should not apply a normative framework meant to deal with racial discrimination to a human rights situation involving not racial discrimination, but children issues. Each body of law has been articulated to deal with different situations.

So what is the ‘situation’ of indigenous peoples which ‘indigenous human rights law’ tries to address? If you think about it, why not deal with the human rights situation of First Nations citizens off-reserve as issues of racial discrimination? Racial discrimination is, in fact, often the driver of the human rights situations of off-reserve (and even many on reserve) First Nations citizens – but also often of Metis and Inuit citizens. Indeed, First Nations could, and have, accessed legal frameworks meant to provide redress for racial discrimination for any number of situations. This framework; however, does not capture many core issues which lie at the root of the human rights situation of many First Nations.

The ‘indigenous human rights law’ framework has been articulated to deal with the collective rights of indigenous peoples. In many ways, indigenous peoples are victims of international law itself – either through the Doctrine of Discovery (get in those EMRIP submissions http://wp.me/p1AYud-1Y) or the fiction of terra nullius (http://wp.me/p1AYud-1l). The status of indigenous peoples as equals to those in European states was both implicitly acknowledged and explicitly (and summarily) dismissed, from the 1400s to modern times. It continues every day.

If you accept that I am a free person, and that my ancestors were free peoples, then did they (we?) not have the right to form our own democratic institutions, to conduct our own foreign relations, to develop our own economies and cultures and to manage and hold our own lands? By denying those collective rights to indigenous peoples, states endorse the view that at some point along the way, the ancestors of today’s indigenous peoples were sub-human, as compared others.

Hardly the most eloquent argument, and indeed, not even a legal one. This is; however, the tension that ‘indigenous human rights law’ seeks to address. Denying the collective aspects of indigenous peoples rights, particularly but certainly not limited to territorial rights, results in the perpetuation of an invidious and unique form of discrimination which offends the dignity, the health, and the human rights situations of indigenous peoples, indigenous citizens and the whole of humanity itself.

It’s a mistake to exclude collective rights
I’m going to go out on a limb and suggest that the Senate is really not interested in collective rights. This is a major mistake. First, territorial rights are most commonly associated with collective rights – though they are not the only ones. Even so, most territorial rights issues relate to lands, territories and resources located off of the reserve. Enjoyment, or lack of enjoyment, of such rights is a major contributor to the overall human rights situation of indigenous peoples.

I’m tired and this isn’t a submission, but a blog — else I’d cite cases like Ominayak, CERD communications, etc, demonstrating that access to land rights is a highly relevant consideration when assessing the human rights situation of indigenous peoples.

I should also point out that there are a range of other collective rights (including the right to self-determination, which is so closely implicated to the Study’s emphasis on on-reserve governance and representivity) which are highly relevant to the Committee’s study and which merit fairly detailed study. They probably won’t be, though, given the narrow focus of the Study expressed in its media release.

Moreover, collective rights and individual rights are widely understood to be mutually reinforcing. This means that indigenous peoples cannot fully enjoy individual rights without full enjoyment of collective rights, and vice versa. This is one reason why many articles of the United Nations Declaration on the Rights of Indigenous Peoples are drafted to explicitly recognized both collective and individual modalities of the rights of indigenous peoples. To consider only collective (or individual) rights when studying the human rights situation of First Nations thus leaves a major gap, and suggests a misunderstanding of how human rights law intersects with indigenous peoples issues generally.

I believe the Study, as currently articulated, is deeply flawed. The Committee is taking what I refer to as a ‘minority rights approach’ in that it considers only the individual aspects of those rights (or individual rights – the difference between these two terms would make the subject of an interesting debate) to the exclusion of the collective rights.

Conclusion
I do comment the Standing Committee for tackling these issues. As I’ve noted above, many situations involving First Nations citizens are simply issues of racial discrimination (or discrimination against women, or both). Those issues are often underplayed by most of the aboriginal rights advocacy community precisely because they are not often viewed as collective rights (though I would argue strongly many of them have very strong collective dimensions – so strong they could be framed as collective issues).

However, the Senate Standing Committee on Human Rights is doing one of two things here. Either the Committee is ignorant of the importance and inter-relatedness of collective and individual rights or the Committee is intentionally attempting to frame its study to exclude consideration of collective rights.

Given Canada’s longstanding problems recognizing, articulating and enforcing collective rights, I would hope the Senate would have devoted some attention to this issue. I mean, Behn v. Moutlon Contracting is being argued in the next month (my post here: http://wp.me/p1AYud-n), so we still don’t know the relationship between individuals and collective rights and we still don’t even know to what extent self-government is inherent or delegated (my post here: http://wp.me/p1AYud-11). At the most recent Conference of the Parties to the Convention on Biological Diversity, Canada even objected to using the term “peoples” in association with the term “indigenous”, suggesting Canada may not even accept that First Nations can hold collective rights, despite several Supreme Court decisions which state precisely the opposite – suggesting a possible ‘implementation gap’.

In either case, I would recommend simply standing on the sidelines on this one. That is, unless and until the Standing Committee makes some kind of indication that it is prepared to hear about the collective rights of indigenous peoples.

Its a shame because the issues being studied are important. Even worse, this Study would have presented an opportunity to articulate the extent to which collective rights and individual rights contribute to the overall human rights situations faced by off-reserve First Nations citizens.

Could the EMRIP endorse the Doctrine of Discovery?

Introduction

What is the EMPRIP
The Expert Mechanism on Indigenous Peoples (EMPRIP) is a UN-body established by the UN Human Rights Council in 2006 (see HRC resolution creating the EMRIP at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_6_36.pdf). The EMRIP is a body, comprised of independent experts, which conducts studies on the rights of indigenous peoples, under the direction of the Human Rights Council.

It is an important feature of the EMRIP that it is made up of independent experts. This is important because although nominations of experts is a state-controlled process, members of the EMRIP do not represent states, their opinions are essentially their own.

Some of the EMRIP’s studies are very influential, for example, its study on the full and effective participation of indigenous peoples in decision-making processes. (www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/StudyDecisionmaking.aspx)

Currently, the EMRIP is conductig a study on the implementation of the UNDRIP. To this end, it has released quesionnaires to states and to indigenous peoples. The questionnaires can be found on this page (www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/QuestionnaireDeclaration.aspx). Indigenous Peoples are encouraged to respond, though I believe a particular kind of response is needed, challenging some of the principles perhaps underlying this quesionnaire.

There are two pretty fundamental problems with the questionnaire and the study. Both issues involve the legal relationship between indigenous peoples and the Declaration. Indigenous peoples should challenge the EMRIP on these two points.

II. Some points on the UNDRIP
It may be helpful to review some key points about the UNDRIP. First, the UNDRIP is an instrument of international law (sometimes referred to as the ‘law of nations’).

Intenrational law generally works in a state to state fashion. States, usually only states, craft rules of law to bind the actions of other states. The law of human rights, for example, creates committments on the part of states to provide individuals (usually) with common basic rights required for the maintenance of the human condition.

The UNDRIP is a somewhat exceptional international instrument in at least two ways. First, it was negotiated not just between states, but (quite arguably) with the full and effective participation of indigenous peoples. Second, the UNDRIP provides express protections for collective and for individual rights of indigenous peoples.

The UNDRIP itself is really only an articulation of existing international law and practice on indigenous rights. These standards are found in treaties, in customary international law and/or in state practice. The Declaration was very carefully negotiated by states, particularly common law countries, so as not to articulate (and perhaps in doing so, create) any ‘unprecedented’ rights of indigenous peoples. While the UNDRIP is an extremely progressive and important instrument of international law, it is critical to remember that it is an instrument of state-drive law and practice.

As a consequence its international law character, the UNDRIP really has legal effect only by virtue of its endoresement by states. Many indigenous peoples, churches, provinces, states (as in US states) ad others may have endorsed the Declaration, but it is only the opinion of UN member states that really matter. The reason for this is that as an international law instrument, the UNDRIP speaks to the obligations of states to protect individual and collective indigenous rights.

The UNDRIP can be viewed as a compromise document. Indigenous Peoples did not secure text as strong as many would have preferred, just as many states expressed discomfort with some provisions of the UNDRIP they felt were too strong. This means there were a fair number of indigenous peoples that had problems with the final text of the UNDRIP — these concers had no effect on legal status of the Declaration. Other indigenous peoples not only support the text of the Declaration and some have even endorsed it — again, these endorsements have no effect on legal status of the Declaration, but they do make powerful political statements.

I want to be very clear that the UNDRIP is a powerful instrument of indigenous rights law because it articulates much of the international law of indigenous rights. One must always remember that indigenous peoples, as nations, have stood outside international law for centuries. The UNDRIP is an instrument (not the first) which tries to bring the state-centered neglect of indigenous peoples to an end – a commendable goal. However, the system which spawned the UNDRIP legally remains a state-centered system.

III. About the Questionnaire
The EMRIP is currently conducting a study on Implementing the UNDRIP. There are a number of methods the EMRIP can use to conduct its studies, includig using questionnaires (this really isn’t my thing because I generally don’t work with the EMRIP).

The EMRIP has apparently issued one questionnaire to states and is now issuing a second. In addition, the EMRIP has issued a questionnaire to indigenous peoples on implementation of the UNDRIP.

This doesn’t pose a problem and is a common and welcomed development. I imagine many indigenous peoples have quite a bit to say about the status of UNDRIP implementation in, say, Canada, as well as recommendations to facilitate better implementation by Canada.

But the questionnaire asks indigenous peoples how they are implementing the UNDRIP. I’m sure there are many peoples who endorsed the UNDRIP, and that there are many who are implementing it. The nature of this questionnaire; however, raises a couple of purely legal concerns.

IV. Why ask indigenous peoples how they are implementing UNDRIP?

If the UNDRIP binds only states, then why ask IPs what they are doing to implement? This is pretty much a key question because to ask indigenous peoples how they implement the Declaration shifts the focus from the legally-binding nature of state obligations towards some form of discourse around how well indigenous peoples govern with respect to their own rights – more of a political question, and one which is currently not easily justiciable under international law (domestic law is another story).

This point was well made in another context by Special Representative to the Secretary General (SRSG) John Ruggie, on the issue of human rights obligations of multinational corporations. One of the main points the SRSG made was that corporations, like other non-state actors, do not actually have international obligations (perhaps outside of crimes against humanity), states do. I strongly support the notion of holding multinational corporations accountable for human rights abuses, and I even support holding them directly accountable. But that’s not currently the state of international law!

It seems ludicrous to assume that indigenous peoples, marginalized by international and domestic law, and as a result of that marginalization, victims of any number of human rights violations, should be considered to hold international law obligations, particularly where it is debatable (and currently debated) whether corporations, many of whom contribute to those same violations, hold similar obligations. If this were the first step towards recognition of the international personality of indigenous peoples, it would be less outrageous. But there is no evidence, in this study or elswhere, that states are even considering such recognition.

One reason the UNDRIP was necessary is that the existing articulations of international law weren’t working for indigenous peoples, for a variety of reasons. For example, and most prominently, the traditional focus of human rights protections on individual rights marginalizes and excludes the protections for collective rights many indigenous peoples require in order to remain viable as peoples.

To sum up, indigenous peoples cannot implement state obligations – states implement state obligations. To put this another way, should indigenous peoples fail to implement the UNDRIP, this is a matter of state responsibility under international law. If indigenous peoples lack international personality and any role in international decision-making (say at the GA), then it is remarkably iniquitous to foist state-like obligations on them – obligations they never agreed to.

The latter argument grows out of the Vienna Convention on the Law of Treaties (VLCT) rule (Article 27) that states cannot use municipal arrangements to defend against non-implementation of international obligations. Article 27 is now a norm of customary international law and applies equally to conventional and customary international law obligations of states.

This argument holds even though some indigenous peoples, like First Nations, are agents of the state. To the extent First Nations have international obligations, those obligations are defined by their relationship to Canada, rather than their own international personality. But that leads to the second problem.

IV. This EMRIP study may be an endorsement of Doctrine of Discovery

I have alluded to the Doctrine of Discovery in past posts on the legal fiction of terra nullius. There, I explained the Doctrine of Discovery is not a theory which directly leads to the alienation of indigenous lands, but is rather a legal theory used to deny indigenous peoples international personality. Specifically, the Doctrine prohibits other states from conducting foreign relations directly with indigenous peoples, this must instead be done through the ‘parent’ state.

In other words, under the Doctrine of Discovery, it would be inappropriate for the United States to enter into a treaty with a First Nation in Canada, over a matter of, say, compensation for certain losses incurred as a result of hostilities between the United States, that Nation and Canada. The treaty would have to be promulgated between Canada and the United States.

Indeed, to claim compensation under such a treaty, it might even be necessary to do so ‘through’ the ‘parent’ governmet. This was precisely what happened in the Cayuga Indians Arbitration (Cayuga Indians (Great Britain) v United States; http://untreaty.un.org/cod/riaa/cases/vol_VI/173-190_Cayuga.pdf). The Cayuga Nation was unable to found its claim on the strength of its own standing as a nation-state, but was successful in securing compensation by working ‘through’ the UK.

The Doctrine of Discovery would also imply that the international obligations (and rights) of the parent state are the obligations and rights of "it’s" indigenous peoples under international law. If that strikes you as paternalistic, that’s because it is.

Bringing us back to the task at hand, the EMRIP is asking indigenous peoples how they implement the international obligations of their ‘parent’ countries. To me, this looks like an implicit endorsement of the Doctrine of Discovery because it assumes the international obligations of indigenous peoples derive from the international obligations of their ‘parent’ or ‘host’ countries.

Some will argue, correctly, UNDRIP is universal standard, or that is applies equally ot all states. This argument would suggest that the actions of the ‘parent’ country is less relevant. This argument cannot change the fact that the Declaration’s legal status flows exclusively from state action, not indigenous peoples’ endorsements or consent.

In doing so, the EMRIP suggests indigenous peoples have obligations under international law, a dubious proposition since the legacy of the Doctrine of Discovery is that indigenous peoples generally operate outside International law (in the sense they are considered ‘non-state actors’).

To be clear, I think it is a laudable goal to bring indigenous peoples into international law, so long as this is done in a non-discriminatory fashion. The EMRIP appears to be proposing to perpetuate a longstanding discriminatory practice by recognizing the international obligations of indigenous peoples flow from a status of tutalage or pupilage vis-a-vis the parent state. This, in my mind, endorses the Doctrine of Discovery.

I am not suggesting that the EMRIP is somehow attempting to intentionally endorse the Doctrine of Discovery. I do think that the EMRIP’s questionnaire strongly implies an endorsement of the Doctrine of Discovery.

Indigenous peoples should respond to the EMRIP, to request that the EMRIP clarify its views on the international standing of indigenous peoples and the Doctrine of Discovery. Faced with such submisions, I would expect that the EMRIP would issue a strong condemnation of the Doctrine of Discovery and articulate that indigenous peoples’ standing under international law comes from the inherent rights of indigenous peoples, not from the whims of their parent states (or for that matter, of other parent states)

Incidentally, there are very good reasons why indigenous peoples shouldn’t use the UNDRIP as the basis for defining their inherent rights. The fact that the Declaratoin is a compromise should tell you enough, as the articulations of many rights were weakened during negotiations in order to develop a consensus document.

VI. Other points

I have made a big deal about the state to state nature of international law. There are no indigeous peoples in the General Assembly (although I believe there is one NGO), Security Council or any other UN decision making body. Indigenous Peoples do have representation on several advisory bodies, which are subsidiary to decision-making bodies, for example the UNPFII (reports to ECOSOC) and EMRIP (to HRC).

These are welcome developments and are progress on a path towards the eventual recognition of indigenous peoples as rights-holding bodies equivalent in powers to states. It is critical to recognize they are not endpoints.

VII Conclusion
This questionnaire from the EMRIP makes a nice political point by asking indigenous peoples how they are implementing UNDRIP. I believe, maybe stronger than most, that indigenous peoples must guaruntee full enjoyment of human rights to their citizens – mainly because I believe indigenous peoples can and should seek redress themselves under human rights instruments.

Now, this is just a questionnaire, so there is time to influence the study. I strongly recommend indigenous peoples do so by submitting on the Doctrine of Discovery and by articulating the source of their obligations to guaruntee rights to their citizens – based on inherent rights.

Indigenous peoples may also suggest that the UNDRIP is the main standard for defining the relationship between the state and indigenous peoples and state and indigenous peoples own citizens – such as in the Lovelace or Kitok communications. Neither of those communications directly implicated the actions of indigenous peoples, but were founded in state action or inaction. This, I suggest, is the framework in which the UNDRIP resides, rather than in the definition of the relationship between indigenous peoples and their own citizens – except of course where indigenous peoples have themselves endorsed the Declaration. Such endorsements are an exercise of an inherent right to self-determination, not a political statement to implement a ‘parent’ state’s international obligations.