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Open Letter - UN Declaration on the Rights of Indigenous Peoples Canada Needs to Implement This New Human Rights Instrument

May 1, 2008
Open Letter

On September 13, 2007, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples by an overwhelming vote of 144-4. The UN Secretary-General, other prominent international leaders, and human rights experts hailed this historic event as a victory for the human rights of the world’s most disadvantaged and victimized peoples.

There are over 370 million Indigenous people worldwide. Indigenous peoples urgently require international affirmation and protection of their human rights. Their rights are routinely trampled by national governments, even when these rights are entrenched in law.

Canada was one of only four states that opposed the Declaration. Government ministers characterize the Declaration as incompatible with Canada’s Constitution and the Canadian Charter of Rights and Freedoms. They state that the Declaration affirms only the collective rights of Indigenous peoples and fails to balance individual and collective rights or the rights of Indigenous and non-Indigenous peoples. No credible legal rationale has been provided to substantiate these extraordinary and erroneous claims.

We, the undersigned, have researched and worked in the fields of Indigenous rights and/or constitutional law in Canada. We are concerned that the misleading claims made by the Canadian government continue to be used to justify opposition, as well as impede international cooperation and implementation of this human rights instrument.

The Declaration contains some of the most comprehensive balancing provisions that exist in any international human rights instrument. Article 46 of the UN Declaration states that every provision must be interpreted “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.

Further, seventeen provisions in the Declaration address individual rights. The UN Declaration also states that the rights of Indigenous peoples may be limited when strictly necessary “for the purpose of securing due recognition and respect for the rights and freedoms of others”. This approach allows for both flexibility and balance.

In response to Canada’s position, the UN High Commissioner for Human Rights and former Supreme Court of Canada Justice, Louise Arbour, publicly expressed her “astonishment” and “profound disappointment”. The Declaration provides a principled framework that promotes a vision of justice and reconciliation. In our considered opinion, it is consistent with the Canadian Constitution and Charter and is profoundly important for fulfilling their promise. Government claims to the contrary do a grave disservice to the cause of human rights and to the promotion of harmonious and cooperative relations.

As a member of the UN Human Rights Council, Canada has a duty to “uphold the highest standards” of human rights for all. This mandate is guided by principles of impartiality, objectivity and non-selectivity. Elimination of politicization of human rights is a vital objective. For Canada to act otherwise is prejudicial to Indigenous peoples’ human rights. It undermines Canada’s credibility and international role.

September 13, 2007 was a shameful day for Canada but a tremendous achievement for the world’s Indigenous peoples and the international system. It is time for the government of Canada to cease publicizing its misleading claims and, together with Indigenous peoples, actively implement this new human rights instrument.

Signed by:

Professor Jennie Abell, Director, Institute of Women's Studies, University of Ottawa
Merle C. Alexander, Barrister and Solicitor
Professor Sharry Aiken, Faculty of Law, Queen's University
Warren Allmand, former Attorney General, Minister of Indian Affairs and President of Rights and Democracy
Professor Kirsten Anker, Faculty of Law, McGill University
Professor Rachel Ariss, Department of Sociology, Lakehead University
Professor Constance Backhouse, Faculty of Law, University of Ottawa
Professor Michael Barutciski, Glendon School of Public Affairs, York University
Professor Nigel Bankes, Faculty of Law, University of Calgary
Tom Berger, Barrister and Solicitor
Professor John Borrows, Law Foundation Chair in Aboriginal Justice, Faculty of Law, University of Victoria
Professor Nehal Bhuta, Faculty of Law, University of Toronto
Dougald Brown, Barrister and Solicitor
Professor Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia
Murray Browne Barrister and Solicitor
Paul Cavalluzzo, Barrister and Solicitor
Professor Larry Chartrand, Faculty of Law, University of Ottawa
Professor Gordon Christie, Faculty of Law, University of British Columbia
Professor Lynda Collins, Faculty of Law, Common Law Section, University of Ottawa
Paul Copeland, Barrister and Solicitor, Bencher (director) of the Law Society of Upper Canada
Wendy Cornet, Cornet Consulting and Mediation Inc.
Professeur François Crépeau, Chaire de recherche du Canada en droit international des migrations / Canada Research Chair in International Migration Law, Directeur scientifique / Scientific Director, Centre d'études et de recherches internationales / Centre for International Studies, Faculté de droit / Faculty of Law, Université de Montréal
Paul Crowley, Barrister and Solicitor
Professor Margaret Denike, Coordinator, Human Rights Program, Carleton University
Professeur Denys Delâge, Faculté de sociologie, Université Laval
Marlys Edwardh, Barrister and Solictor
Fay Faraday, Barrister and Solicitor
Professor L. M. Findlay, Director, Humanities Research Unit, University of Saskatchewan
Professor Craig Forcese, Faculty of Law, University of Ottawa
Stacey M. Edzerza Fox, Barrister and Solicitor
Professor Evan Fox-Decent, Faculty of Law, McGill University
Professor Donald Galloway, Faculty of Law, University of Victoria
Myriam Gervais, Research Associate McGill Centre for Research and Teaching on Women
Professeur Sébastien Grammond, Vicedoyen à la recherche / Vice-Dean, Research Section de droit civil / Civil Law Section Faculté de droit / Faculty of Law, Université d'Ottawa
Peter Grant, Barrister and Solicitor
Professor Vanessa Gruben, Faculty of Law, University of Ottawa
Debra Hanuse, Barrister and Solicitor.
Veryan Haysom, Barrister and Solicitor
Professor Sakej Henderson, Research director, Four Direction Council, Research Director, Native Law Centre of Canada
Professor Shin Imai, Director, Intensive Program on Aboriginal Lands, Resources and Governments, Faculty of Law, Osgoode Hall, York University
Barbara Jackman, Barrister and Solicitor
Professor Michael Jackson, Faculty of Law, University of British Columbia
Paul Joffe, Barrister and Solicitor
Roger Jones, Law and Policy Consultant
Professor Jennifer Koshan, Faculty of Law, University of Calgary
Lois Leslie, Barrister and Solicitor
Professor Linda Kreitzer, Faculty of Social Work, University of Calgary
Professeur Émérite, Jean-Paul Lacasse, Faculté de droit, Université d'Ottawa
Professeure Emérite Andrée Lajoie, Faculté de droit, Université de Montréal
Professor Lucie Lamarche, Chaire Gordon F Henderson en droits de la personne / Gordon F. Henderson Human Rights Chair, Université d'Ottawa
Professeur François J. Larocque, Directeur du programme national / National Program Director, Faculté de droit, Université d'Ottawa
Chief Wilton Littlechild, former United Nations Permanent Forum member.
Professor Jennifer Llewellyn, Faculty of Law, Dalhousie University
Professor Roderick Macdonald, Faculty of Law, McGill University
Professor A. Wayne MacKay C.M., Faculty of Law, Dalhousie University
Professor Audrey Macklin, Faculty of Law, University of Toronto
Professor Joseph Eliot Magnet, Faculty of Law, University of Ottawa
Louise Mandell, Barrister and Solicitor
Professor Egla Martinez, Institute.of Interdisciplinary Studies/Human Rights, Institute. of Women's Studies, Carleton University
Professor Maxine V. H. Matilpi, Director, Academic and Cultural Support Program, Faculty of Law, University of Victoria
Professor June McCue, Faculty of Law, University of British Columbia
Professor Kent McNeil, Faculty of Law, Osgoode Hall, York University
Professor Errol P. Mendes, Faculty of Law, University of Ottawa
John Merritt, Barrister and Solicitor
Loretta Michelin, Director of Legal, Services with the Nunatsiavut Government
Professor Patricia Monture, Department of Sociology, University of Saskatchewan
Maria Morellato, Barrister and Solicitor
Nancy A. Morgan, Barrister and Solicitor
Professor Bradford W. Morse, Faculty of Law, University of Ottawa
Alex Neve, Secretary General, Amnesty International Canada (English-Speaking Branch).
Professeur Pierre Noreau, Faculté de droit, Université de Montréal
John Olthuis, Barrister and Solicitor
Arthur Pape, Barrister and Solicitor
Professeure Sylvie Paquerot, École d'études politiques, Université d'Ottawa