OTTAWA — As first nations protesters gathered on Parliament Hill on Monday, a New Democrat MP introduced a private member’s bill that would force the federal government to ensure that laws are compatible with the UN Declaration on the Rights of Indigenous Peoples.

“The principles established in the UN declaration on indigenous rights recognize indigenous peoples’ individual and collective rights,” Romeo Saganash, the NDP MP for Abitibi-Baie James-Nunavik-Eeyou told reporters at a news conference on Monday morning.

The declaration says that indigenous peoples “are equal to all other peoples and must not be discriminated against,” said Mr. Saganash.

The UN declaration, which has been formally endorsed by the Conservative government, is a non-binding document.

It calls on governments to promote the full and effective participation of aboriginal people in all matters in that concern them and also says they have the right remain distinct and to pursue their own visions of economic and social development.

Those are key issues that face Canada’s first nations as they press forward with demands for greater sharing of resources revenues on their traditional lands – and for consultation when legislation crafted by Ottawa and the provinces will affect them.

Demonstrators with the Idle No More movement, which is staging protests in Canada and across the United States on Monday, have complained about federal bills that they say will negatively affect first-nations people but were drawn without native input.

When the Conservative government endorsed the declaration in 2010, it pointed out that it was an “aspirational document” – in other words, one that does not impose legal obligations on Canadian lawmakers.

But “this is an existing document that was signed on to by an overwhelming majority of countries around the world,” Mr. Saganash said.

“Last I heard, our judges and our courts are impartial and they have the right to interpret domestic laws, to interpret domestic rights, or aboriginal rights in this case. They have the absolute right to consult the UN declaration in order to interpret domestic rights.”

Private member’s bills, like the one introduced by Mr. Saganash, rarely get far in Parliament and, in this case, can easily be quashed by the Conservative majority.

Mr. Saganash was among those who helped draft another declaration of commitments last week that convinced Attawapiskat Chief Theresa Spence to give up a hunger strike. Those commitments taken by first-nations leaders and opposition members included pressing the government to adhere to the UN declaration.

Bob Rae, the interim Liberal Leader, was also involved in writing those commitments to Ms. Spence.

On the face of it, Mr. Saganash’s bill looks reasonable, Mr. Rae told reporters on Monday. “If we take the UN declaration serious, then we should take the commitments made in the UN declaration seriously.”

Mr. Rae also said he has told Finance Minister Jim Flaherty that the looming federal budget must begin to address the real condition of first nations, Métis and Inuit people in Canada.

The opposition members did not end up signing the declaration of commitments to Ms. Spence, as first nations leaders did.

But “we will certainly be talking about that issue this week,” said Mr. Rae. “We will be raising it at Question Period and other opportunities.”

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Canada has nothing to gain, much to lose by ignoring land rights of indigenous peoples

Opinion: Rights of indigenous peoples are constitutionally entrenched

Craig Benjamin – Vancouver Sun, http://www.vancouversun.com/business/bc2035/Canada+nothing+gain+much+los...

30 January 2013

Community hearings into the proposed Northern Gateway Pipeline wrap up this week in Vancouver. As an international human rights organization with strong roots in communities across Canada, Amnesty International wanted to be part of this process to emphasize that whatever the mandate of this specific review, all decisions affecting the lands of indigenous peoples must uphold domestic and international protections for their rights.

Even more than this, we wanted to demonstrate that respect for the human rights of indigenous peoples is matter of urgent priority for Canadian society and for the example that Canada sets for the world.

More than 600 major resource development projects are planned across Canada for the coming decade. In northern British Columbia alone, in the region that would be crossed by theproposed Northern Gateway Pipeline, 100 major projects are currently underway or under development. The vast majority of these projects would affect lands and waters of continued cultural, economic, political and spiritual importance to First Nations, Inuit and Métis peoples.

The rights of indigenous peoples to use and benefit from their traditional territories, and to be full participants in decisions affecting those lands, are protected by the Canadian Constitution, historic and contemporary treaties, and global human rights standards that Canada has committed to uphold. Governments and quasi-judicial processes like environmental reviews have an unavoidable legal obligation to uphold these rights.

Canadian courts have long been clear that constitutional rights must be protected in resource licensing decisions, regardless of whether such protection is explicitly required by the specific legislation governing these processes. In 1994, for example, the Supreme Court said that the National Energy Board — the federal body that reviews pipeline applications — must interpret its governing legislation “in accordance with the dictates of the Constitution” including the constitutional affirmation of indigenous rights.

Because the rights of indigenous peoples are constitutionally entrenched, the legal standard of protection is necessarily high. Canadian courts have said that protection of indigenous rights is “a national commitment” and “an underlying constitutional value.” The Supreme Court has said that governments “cannot cavalierly run roughshod over aboriginal interests.” There must be “reconciliation” in which the perspectives of the state and indigenous peoples are both given “equal weight.”

International human rights standards similarly call for the rigorous protection of indigenous rights. The rulings of international human rights bodies and instruments such as the UN Declaration on the Rights of Indigenous Peoples set out a clear consensus on the importance of indigenous peoples’ relationship to the land as the foundation of their well-being and cultural survival. When it comes to resource development that could significantly affect that relationship, the appropriate and necessarystandard, set out in the declaration and repeatedly affirmed by international human rights bodies, is that decisions should only be made with indigenous peoples’ free, prior and informed consent.

Canadian law does not require specific legislation to give legal effect to international human rights standards. It is assumed that governments intend to comply with their international obligations. Federal cabinet directives expressly require all departments and agencies “to respect Canada’s international obligations in areas such as human rights.” Canadian courts have used international human rights standards as “relevant and persuasive sources” to interpret domestic laws.

The federal government has said that environmental reviews are part of how it meets its obligations to consult with indigenous peoples. Last year, in legislation adopted as part of the two omnibus budget bills, the government granted itself broad discretion to determine which projects will be reviewed under federal jurisdiction. It also specifically excluded pipelines from such reviews. Those reviews that are still carried out will be more limited in scope and duration with greater restrictions on public participation. Indigenous peoples’ organizations andenvironmental groups have rightly protested these changes as undermining environmental protection in Canada.

Critically, these legislative changes cannot diminish the government’s underlying legal obligations toward indigenous peoples. What they will do, by further reducing the likelihood that Canada’s obligations will be properly addressed in the approvals process, is pushes more of the decisions into the courts.

To force indigenous peoples into costly and prolonged litigation just to have their rights respected is a violation of the government’s fundamental obligations. It also runs counter to the desire of many Canadians who, as eloquently demonstrated by public comments before the Northern Gateway Panel, want a new relationship with indigenous peoples based on reconciliation and respect for human rights.

Craig Benjamin is campaigner for the Human Rights of Indigenous Peoples, Amnesty International Canada.

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INUIT TAPIRIIT KANATAMI

Legislation must not erode aboriginal rights

https://www.itk.ca/front-page-story/legislation-must-not-erode-aborigina...
Ottawa Citizen screenshot. http://www.ottawacitizen.com

As published in the Ottawa Citizen, January 20, 2013

For almost 15 years, the federal Department of Justice has conducted a campaign to erode the constitutional and legal status of aboriginal and treaty rights in Canada. In doing so, it has also campaigned to reduce the role of Parliament in its oversight of such rights.

How has this happened?

Aboriginal peoples have a central place in Canadian history and in contemporary Canadian life. The relations between aboriginal peoples and the Crown have figured prominently in Canada’s constitutional and political evolution.

Those relations have not always been constructive or just. Treaties have often been one-sided and continue to be violated. Laws, such as the Indian Act, have often been oppressive. We all live with that legacy.

The patriation package of constitutional reforms in 1982 offered some new thinking. Section 35 of the Constitution Act, 1982 recognized and affirmed the existing aboriginal and treaty rights of aboriginal peoples, and guaranteed these rights elevated constitutional status.

Many aboriginal peoples hoped that section 35 would guarantee aboriginal and treaty rights as strongly as federal and provincial powers are guaranteed under the Constitution. As treaties with aboriginal peoples are themselves the products of many compromises, it seemed counterintuitive that the courts would permit one party to those treaties — the Crown — to be able to unilaterally re-work those compromises in its favour. This was reflected in the inclusion of section 35 in a separate part of the Act than the Canadian Charter of Rights and Freedoms, which placed it outside the reach of the limitations contemplated by Section 1 of the Charter.

Subsequent court decisions, notably the 1990 Supreme Court of Canada in R. v. Sparrow, determined that constitutional protection for aboriginal and treaty rights is not absolute, that, in limited circumstances they could be “infringed” by new laws. But the court did try to set the bar high. Only laws that have a valid legislative objective, and that could be justified against a series of tests involving such things as consultation and accommodation, consistent with the honour and good faith of the Crown, could validly infringe. The court later added that the Crown’s duty to consult would require the full consent of the aboriginal nation “on very serious issues.”

Up until 1995, new federal laws routinely included a “non-derogation” provision, which provided comfort to aboriginal peoples that new legislative projects were not designed to have unintended side-effects that would be hostile to aboriginal and treaty rights.

But in laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations, which have trended towards a blurring of, and eventual overturning of Parliament’s previously clear presumptive intention not to diminish aboriginal and treaty rights in new legislative projects.

For quite some time, this campaign went undetected. When it was spotted by aboriginal representatives, and brought to the attention of parliamentarians, the Senate Standing Committee on Legislative and Constitutional Affairs investigated and produced a thoughtful report in December 2007, supported across party lines, titled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.”

The Senate committee urged that the federal Interpretation Act be amended to include a general presumptive rule that new laws be interpreted to uphold rather than erode aboriginal and treaty rights. This presumption could be rebutted; Parliament would, consistent with the Constitution and court rulings, maintain the power to infringe aboriginal and treaty rights, but would reserve the discretion carefully to itself. This Interpretation Act approach has already been employed in Manitoba and Saskatchewan at the provincial level, with no practical problems.

The Department of Justice ignored the Senate recommendations.

With the wording of a proposed new law, the Safe Drinking Water for First Nations Act, the campaign to erode the constitutional and legal status of aboriginal and treaty rights has come full circle.

For the first time, a new law would include an active “derogation” provision; that is, the proposed law explicitly states that aboriginal and treaty rights deemed to be in conflict with the law’s stated objective will not be respected. And for the first time, a new law would contradict promises made to aboriginal peoples in treaties as to the interpretive primacy of those treaties.

Many aboriginal peoples are desperate for improved water supply after decades of federal underfunding. In a cruel feature of the new law, eligibility for future federal funding support for improved water services would be tied to willingness to live under the new derogation regime created by the proposed law.

The new law has been developed without the required consultation with those affected. There has been no respect for the “free, prior and informed consent” test that has been embedded in the 2007 United Nations Declaration on the Rights of Indigenous Peoples, a universally accepted human rights declaration that the federal government now claims to endorse.

All of this, of course, is bad news for aboriginal peoples. But perhaps equally disturbing for all Canadians is the technique adopted in the new law that allows future erosion of aboriginal and treaty rights to be carried out through the executive branch of government by way of regulations.

Regulation writing is, of course, the special province of Department of Justice officials. Unlike the case with new statutory proposals, which must go through three readings and committee review at House of Commons and Senate stages, Parliament has virtually no say with respect to new regulations.

Canada’s highest court has affirmed that the respect and protection of existing aboriginal and treaty rights is an underlying constitutional principle and value. Given Canada’s colonial history toward aboriginal peoples, the responsibility of Parliament is particularly important in safeguarding the rights and interests and dignity of aboriginal peoples, and the reliability and durability of their fundamental rights. Parliament must not surrender its responsibility to Department of Justice officials, who would prefer that any debate as to how much respect be given to aboriginal and treaty rights be conducted behind bureaucratic closed doors.

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Legislation must not erode aboriginal rights

Ottawa Citizen – https://www.itk.ca/front-page-story/legislation-must-not-erode-aborigina...

20 January 2013

For almost 15 years, the federal Department of Justice has conducted a campaign to erode the constitutional and legal status of aboriginal and treaty rights in Canada. In doing so, it has also campaigned to reduce the role of Parliament in its oversight of such rights.

How has this happened?

Aboriginal peoples have a central place in Canadian history and in contemporary Canadian life. The relations between aboriginal peoples and the Crown have figured prominently in Canada’s constitutional and political evolution.

Those relations have not always been constructive or just. Treaties have often been one-sided and continue to be violated. Laws, such as the Indian Act, have often been oppressive. We all live with that legacy.

The patriation package of constitutional reforms in 1982 offered some new thinking. Section 35 of the Constitution Act, 1982 recognized and affirmed the existing aboriginal and treaty rights of aboriginal peoples, and guaranteed these rights elevated constitutional status.

Many aboriginal peoples hoped that section 35 would guarantee aboriginal and treaty rights as strongly as federal and provincial powers are guaranteed under the Constitution. As treaties with aboriginal peoples are themselves the products of many compromises, it seemed counterintuitive that the courts would permit one party to those treaties — the Crown — to be able to unilaterally re-work those compromises in its favour. This was reflected in the inclusion of section 35 in a separate part of the Act than the Canadian Charter of Rights and Freedoms, which placed it outside the reach of the limitations contemplated by Section 1 of the Charter.

Subsequent court decisions, notably the 1990 Supreme Court of Canada in R. v. Sparrow, determined that constitutional protection for aboriginal and treaty rights is not absolute, that, in limited circumstances they could be “infringed” by new laws. But the court did try to set the bar high. Only laws that have a valid legislative objective, and that could be justified against a series of tests involving such things as consultation and accommodation, consistent with the honour and good faith of the Crown, could validly infringe. The court later added that the Crown’s duty to consult would require the full consent of the aboriginal nation “on very serious issues.”

Up until 1995, new federal laws routinely included a “non-derogation” provision, which provided comfort to aboriginal peoples that new legislative projects were not designed to have unintended side-effects that would be hostile to aboriginal and treaty rights.

But in laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations, which have trended towards a blurring of, and eventual overturning of Parliament’s previously clear presumptive intention not to diminish aboriginal and treaty rights in new legislative projects.

For quite some time, this campaign went undetected. When it was spotted by aboriginal representatives, and brought to the attention of parliamentarians, the Senate Standing Committee on Legislative and Constitutional Affairs investigated and produced a thoughtful report in December 2007, supported across party lines, titled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.”

The Senate committee urged that the federal Interpretation Act be amended to include a general presumptive rule that new laws be interpreted to uphold rather than erode aboriginal and treaty rights. This presumption could be rebutted; Parliament would, consistent with the Constitution and court rulings, maintain the power to infringe aboriginal and treaty rights, but would reserve the discretion carefully to itself. This Interpretation Act approach has already been employed in Manitoba and Saskatchewan at the provincial level, with no practical problems.

The Department of Justice ignored the Senate recommendations.

With the wording of a proposed new law, the Safe Drinking Water for First Nations Act, the campaign to erode the constitutional and legal status of aboriginal and treaty rights has come full circle.

For the first time, a new law would include an active “derogation” provision; that is, the proposed law explicitly states that aboriginal and treaty rights deemed to be in conflict with the law’s stated objective will not be respected. And for the first time, a new law would contradict promises made to aboriginal peoples in treaties as to the interpretive primacy of those treaties.

Many aboriginal peoples are desperate for improved water supply after decades of federal underfunding. In a cruel feature of the new law, eligibility for future federal funding support for improved water services would be tied to willingness to live under the new derogation regime created by the proposed law.

The new law has been developed without the required consultation with those affected. There has been no respect for the “free, prior and informed consent” test that has been embedded in the 2007 United Nations Declaration on the Rights of Indigenous Peoples, a universally accepted human rights declaration that the federal government now claims to endorse.

All of this, of course, is bad news for aboriginal peoples. But perhaps equally disturbing for all Canadians is the technique adopted in the new law that allows future erosion of aboriginal and treaty rights to be carried out through the executive branch of government by way of regulations.

Regulation writing is, of course, the special province of Department of Justice officials. Unlike the case with new statutory proposals, which must go through three readings and committee review at House of Commons and Senate stages, Parliament has virtually no say with respect to new regulations.

Canada’s highest court has affirmed that the respect and protection of existing aboriginal and treaty rights is an underlying constitutional principle and value. Given Canada’s colonial history toward aboriginal peoples, the responsibility of Parliament is particularly important in safeguarding the rights and interests and dignity of aboriginal peoples, and the reliability and durability of their fundamental rights. Parliament must not surrender its responsibility to Department of Justice officials, who would prefer that any debate as to how much respect be given to aboriginal and treaty rights be conducted behind bureaucratic closed doors.