Open letter signed by 101 experts supporting Bill C-262 – CPIJ

Open letter signed by 101 experts supporting Bill C-262 – CPIJ

On May 30, 2018, the House of Commons passed Bill C-262. Indigenous peoples and individuals, leaders, and human rights experts hailed this historic event as a victory for the human rights of Indigenous peoples in Canada. We are 101 experts and academics who research and work in the fields of Indigenous, human rights, constitutional law and/or international law. We are glad that Bill C-262 has finally been referred to Committee, 11 months after its adoption by the House of Commons. We urge you to proceed swiftly so that it can be passed and become part of Canadian law before the current session of Parliament ends.

Worldwide, Indigenous peoples are amongst the world’s most disadvantaged and victimized peoples. They share common problems related to the protection of their rights as distinct peoples and suffer widespread discrimination at various levels.  On September 13, 2007, the United Nations General Assembly held a historic vote to adopt the United Nations Declaration on the Rights of Indigenous Peoples. Canada, as you are aware, was initially opposed to the Declaration; it based its arguments on extraordinary and erroneous claims, for which no credible legal rationale has been provided. We are concerned that similar misguided claims or apprehensions continue to be used by some Senators to justify opposition and slow the progress of the bill in the Senate.

Bill C-262’s full title is: “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”.  It is a basic, bottom-line piece of legislation that does not create new rights. It establishes a process for the government, in full partnership with Indigenous peoples, to achieve implementation of the Declaration in Canadian law. It does so in three ways.

• First, Bill C-262 affirms the Declaration as a universal international human rights instrument with application in Canadian law. This is consistent with the fact that the UN Declaration already has legal effect in Canada and can be used by Canadian courts and tribunals to interpret Canadian laws.
• Second, the Bill requires the government to work with Indigenous peoples to review existing laws and bring forward reforms to ensure their consistency with the Declaration.
• Third, Bill C-262 creates a legislative framework for the federal government to collaborate with Indigenous peoples to establish a national action plan for the implementation of the Declaration.

Honourable Senators, the recognition of the human rights of Indigenous peoples works to strengthen human rights for everyone. The provisions in the UN Declaration were developed based on existing standards in international law. Many are already legally binding on Canada, either because they are part of customary international law, or because they are necessary to fulfil obligations under the human rights treaties that Canada has ratified.

The UN Declaration does not create a hierarchy of competing human rights claims. It is absolutely false, as some have claimed, that it gives Indigenous peoples a veto over, for example, development projects. It requires States to consult and cooperate in good faith with indigenous peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Respect for free, prior and informed consent is an essential standard in international law and can already be used by Canadian courts and tribunals as a source of interpretation of Canadian laws, including the Constitution, where Indigenous rights are at stake. The UN Declaration provides for comprehensive balancing provisions. It reaffirms what international and Canadian law already acknowledge: the human rights and fundamental freedoms of all must be respected, but limitations may be necessary in a democratic society. Limitations are possible if they are non-discriminatory and strictly necessary for the purpose of securing due recognition and respect for the rights and freedoms of others. Bill C-262 only reinforces this essential attribute of human rights law.

The UN Declaration offers a framework to enhance harmonious and cooperative relations between the State and Indigenous peoples, “in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”. These are the core principles and values of not only Canada’s Constitution, but also the international system that Canada has championed.

The Declaration is a universal human rights instrument. It is also a consensus instrument that has been reaffirmed seven times by the UN General Assembly. No State in the world formally objects to it. Bill C-262 provides a much-needed framework to ensure that Canada works in cooperation with Indigenous peoples to see it fully and effectively implemented.Honourable Senators, you have the power and privilege to make a crucial step in Canada’s pathway to reconciliation, but also to reaffirm Canada’s true commitment to human rights for all. We urge you to proceed swiftly with Bill-C-262.