The Grand Council of the Crees

news: Senate Committees and Private Legislation Directorate - Romeo Saganash


Posted: 2002-06-17


Study of the status of Canada's adherence to international human rights instruments and on the process whereby Canada enters into, implements and reports on such.


International human rights law was given added urgency and importance with the experiences that grew out of the Second World War-Hitler's race laws and the realization that States sometimes can enact evil legislation, and that therefore, what was legal was not necessarily just.

The context in which this realization took its present form-the birth of the United Nations, the Nuremberg Tribunals, and the jurisprudential influence of the victors of the war on the constitutional landscape in Western Europe and Japan-gave rise to the idea that human rights could no longer be left exclusively to the jurisdiction of individual States, but that, somehow, human rights jurisdiction would be internationalized and thereby be placed above the perceived self-interests of individual States.

In this sense the Charter of the United Nations and the International Covenants, and all of the myriad human rights instruments that have been promulgated, have created an independent human rights sovereignty, having paramountcy over the laws of individual States, at times challenging the laws of those States, which may very well be members of the international organizations which have usurped their sovereignty in the field of human rights.

The fact is that when States sign and ratify international human rights instruments they concede and vacate some aspects of their sovereignty to the machinery of the international community for the greater cause of humanity, believing that when they do so, they will not themselves be called to account for any injustice on their own part.

In the real politics of international affairs it is this issue, State sovereignty first and foremost, which is determinative-the refusal to accede to a principle of international law because it would not be consistent with the municipal or the so-called "national" law of the State. (Nazi Germany would not have made its race laws subject to international human rights scrutiny.)

It has often been pointed out that the States that have not ratified the American Convention on Human Rights (ACHR) are the "English speaking" States, as opposed to those formerly "dictatorial" regimes which have ratified the Convention. This apparent contradiction will be better understood if we can be more frank with each other.

It is the "good guy" States that have not ratified the Convention, principally the United States and Canada, whose laws are already said to protect human rights, and whose citizens therefore do not need the protection of the Inter-American Court System, States that place themselves above international human rights law. It is also these States that are most reluctant to make themselves subject to any higher form of sovereignty. (Take note of the United States' refusal to accept the jurisdiction of the newly created International Criminal Court.)

Most of the arguments that this committee has heard urge Canada to ratify the Convention in order to strengthen respect for human rights among the members of the OAS, and to augment Canada's influence over the shape of human rights in the Inter-American System. These are good politically self-serving arguments to encourage officials at DFAIT; however they are not the arguments that we want to make.

The Grand Council of the Crees wants Canada to subject itself to the full force and effect of international human rights law without resort to reservations or Statements of Understanding (SoU). If there are already stronger human rights protections at ICCPR, for example, or in Canadian law, Canada has no cause for concern. If, however, Canadian law needs to be confronted and corrected by exposure to an independent human rights tribunal removed from Canada's own particular notion of its self-interests, Canada will be a stronger and a better country as a result.

There is no longer any rationale for Canada's continued delay in the ratification of the ACHR. All of the stated objections that have been given for Canada's hesitation have been explored and answered. Is there some person or group that we can identify who continues to object? Of course there is. However, this is not grounds for further delay; the substantive reasons for failure to ratify have been repeatedly addressed and disposed of.

In the view of the Grand Council of the Crees, Canada should ratify the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries; Canada should ratify the ACHR, and accept the jurisdiction of the Inter-American Court of Human Rights. Canada is already subject to the American Declaration on the Rights and Duties of Man. However, in the aboriginal community we need more explicit protections, since Canada has made it a practice not to integrate the provisions of international human rights law into its own legislation.

As I mentioned a few moments ago, Canada is one of those States that believe that international human rights law has its real application in those unnamed States that are notorious for human rights abuses. DFAIT officials have often told me this. When Canada was recently criticized for its policies toward aboriginal peoples in the context of the ICCPR periodical review process, and within the periodic review of the Committee on Economic, Social and Cultural Rights, Canada claimed that the review processes was flawed, and that the information (which Canada had supplied to the committees) was out of date.

When Canada lost Lovelace under the Optional Protocol to ICCPR, the ratification process for ILO Convention No. 169 was set back, perhaps indefinitely. These I believe are the real but unstated reasons for the delays we see at the OAS, although you will have difficulty obtaining official confirmation of this.

Year after year Canada has been criticized severely for its treatment of aboriginal peoples by its own Human Rights Commission. In recent years the United Nations has questioned Canada on its failure to implement the recommendations of the Report of the Royal Commission on Aboriginal Peoples. The United Nations Human Rights Committee has decided that Canada's policy of extinguishing aboriginal rights is inconsistent with Canada's obligations under ICCPR, yet Canada continues to adhere to this censured policy.

Will Canada subject itself to another human rights body that may question this particularly sensitive area of the national psyche? Disproportionate numbers of aboriginal prisoners incarcerated in Saskatchewan, "self-governance" imposed in the racial context of the Indian Act-Will Canada want these issues to be adjudicated outside of its own judicial system?

Recently, the Inter-American Court of Human Rights recognized the land rights of the Awas Tingni People of Nicaragua. DFAIT has made no official reaction to this precedent-setting decision. I can not help but wonder if Canada's continued failure to place itself fully within the machinery of the OAS through ratification of the ACHR is the official reaction to the Awas Tingni decision.

Canada can not continue to occupy the moral high ground as a leading advocate of human rights and yet avoid subjecting itself to the human rights enforcement and oversight mechanisms of the international community. National politics, the lack of an effective opposition, the perverse social agenda of the Alliance Party, has given Canada an undeserved respite from addressing the terrible and deadly problems that aboriginal peoples confront in Canada. The international human rights community will urge Canada to face these problems with honesty and determination. At worst the process will bring embarrassment, but Canada will be a better place for it. Thank you.