Supporting Indigenous Peoples’ Human Rights

By: Paul Joffe

Case/Decision/Legislation/Bill Commented On: First Nations, Inuit and Métis Child, Youth and Family Services Act, SC 2019, c 24

PDF Version: Supporting Indigenous Peoples’ Human Rights – Especially Children

This is the fourth post in a series on the First Nations, Inuit and Métis Child, Youth and Family Services Act. You can read a summary here and I wish to express my appreciation for the analyses by Kerry Wilkins and Kent McNeil, which are also instructive.

As a Québec lawyer with international law experience, I will add another perspective of the First Nations, Inuit and Métis Child, Youth and Family Services Act, SC 2019, c 24, currently being challenged by the government of Québec. Rather than continuing to place Indigenous children in government care across Canada, it is crucial that this federal Act enables Indigenous peoples to retain control over the well-being of their own children, consistent with their right of self-determination.

In light of the extensive damage being inflicted on Indigenous children under Québec’s existing system of child care, it is instructive to first highlight for our readers a few findings and conclusions of the Final Report of Commissioner Jacques Viens, Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (Viens Report). The Report and Calls for Action reflect the urgency and sensitivity relating to Indigenous children in government care – especially after the history of residential schools and the resulting intergenerational impacts on residential school survivors and their children.

In the Reference to the Court of Appeal of Quebec regarding the First Nations, Inuit and Métis Child, Youth and Family Services Act, 2022 QCCA 185 (CanLII) (QCCA Decision), the Viens Report is cited seven times, including:

This abuse of Aboriginal children by state authorities in Quebec and across Canada is having a devastating effect on these children and their communities, as is the lack of culturally sensitive services. The causes of this overrepresentation are multiple but interrelated.

From the outset, the colonialist and assimilative interventions of the state for over a century, particularly in the area of child and family services, have caused significant harm to Aboriginal peoples, who are still dealing with the consequences of intergenerational trauma. (paras 133-134, emphasis added)

What is apparent from the Viens Report is the widespread and ongoing discrimination by the Québec government against Indigenous peoples and their children: “The systemic discrimination we have brought to light has deep roots, and I believe it requires a sweeping response.” (Viens Report at 216).

As Commissioner Viens underlines in his report: “… I have decided to make self-determination one of the underlying principles of my calls to action.” (Viens Report at 215). This is significant, especially since the Québec government has opted to explicitly ratify a wide range of international human rights instruments (see William A. Schabas et Daniel Turp, Droit international, canadien et québécois des droits et libertés: Notes et Documents (Cowansville, Québec: Les Éditions Yvon Blais, 1994)), including: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child).

Québec and other provinces are legally bound to recognize and respect the right of Indigenous peoples to self-determination. This “right of all peoples” is in common article 1 of the two Covenants, which also affirm: “The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions” (ICCPR, art 50; ICESCR, art 28).

In these two International Covenants, common article 1 not only affirms the obligations of States to respect the right of “all peoples” to self-determination, but also to “promote the realization of th[is] right … in conformity with the provisions of the Charter of the United Nations”.

Article 4 of the two Covenants adds: “The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society” (emphasis added).

Further, the Vienna Convention on the Law of Treaties (United Nations Treaty Series, vol 1155, 331, art 26 (Pacta sunt servanda)) specifies: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article 27 adds: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

In the current litigation, Québec fails to acknowledge its obligations in the two International Covenants. Instead, Québec opts to oppose Indigenous peoples’ right to self-determination, including self-government, with erroneous and misleading arguments (see e.g., QCCA Decision at para 47: “For the Attorney General of Quebec, Aboriginal governance must be achieved through legislative delegation, agreements between governments and Aboriginal peoples, or constitutional amendment. In his view, section 35 of the Constitution Act, 1982 does not recognize a right to self-government”).

Québec has also failed to reveal its formal “ratification” of the Convention on the Rights of the Child, which includes diverse international obligations in relation to children. (Québec and all other provinces in Canada have such legal obligations as elaborated in numerous international human rights instruments that are ratified by Canada. No province or territory is required to explicitly “ratify” them.)

In light of its international obligations, the Québec government should be publicly acknowledging the right of Indigenous peoples to self-determination and ensuring the well-being of Indigenous children. Of all the provinces in Canada, Québec is the one that most engages in nation state-like activities at the international level – establishing offices in other countries. Yet, in regard to Indigenous children in the province, Québec is reneging on its international and domestic obligations.

As elaborated by the UN Committee on the Rights of the Child in Indigenous children and their rights under the Convention, States parties have key obligations:

In the preamble of the Convention on the Rights of the Child, States parties take “due account of the importance and cultural values of each people for the protection and harmonious development of the child”
Article 30 of the Convention stipulates: “In those States in which … persons of indigenous origin exist, a child… who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language” (at 2, emphasis added).

Commissioner Viens’ Call for Action No 1 is unequivocal in regard to Québec: “Make a public apology to members of First Nations and Québec’s Inuit for the harm caused by laws, policies, standards and the practices of public service providers.”

In his public apology in October 2019, Premier François Legault conceded the following: “The findings made by the Commissioner were damning for the Québec state… members of First Nations communities were victims of discrimination… What’s at stake here is human dignity. … The Quebec state is not doing enough… Consequently, I offer Québec’s First Nations and Inuit the most sincere apology from the entire state of Québec. The Québec state has failed in its duty to you. It asks you today for your forgiveness… Today, with this declaration, I confirm to you that Quebec will respond immediately… As of now, the government will carefully examine each of these recommendations and work in collaboration with Indigenous communities.” (emphasis added).

Yet in the QCCA decision, Québec erroneously argued: “… by asserting an inherent right of self-government for aboriginal peoples, Part II of the Act usurps the role of the courts and unilaterally creates a third order of government in Canada. This can only be done by constitutional amendment or by means of treaties protected by s 3 of the Act” (para 36). The views of the Québec government on Indigenous peoples’ right of self-determination, including self-government, were refuted in the QCCA decision (see QCCA Decision at para 55: “At the international level, the 2007 UN Declaration on the Rights of Indigenous Peoples affirms the existence of a right to self-determination for indigenous peoples. In addition, in the academic literature in Canada, the majority of authors believe that s 35 confirms the existence of a right to self-government”; see also Kent McNeil, “The Inherent Indigenous Right of Self-Government” ).

In its preamble, the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, explicitly repudiates colonialism. In addition, a key purpose of this Act is to “affirm the Declaration as a universal international human rights instrument with application in Canadian law” (at ss 2(3), 4(a); The term “Canadian law” is referred to in the French version of the Act as “droit canadien” [Canadian law] and not solely “loi fédérale” [federal law] as in certain other provisions.).

Further, the preamble of this Act makes clear that “the rights and principles affirmed in the Declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world, and must be implemented in Canada”. This latter phrase “must be implemented in Canada” was not included in Romeo Saganash’s Private Member’s Bill C-262 on the UN Declaration (see An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples (Private Member’s Bill C-262), House of Commons, 1st sess, 42nd Parl. (tabled by Romeo Saganash, April 21, 2016 and passed by H of C on May 30, 2018; but died on order paper in June 2019 closure of Parliament). Therefore, the analyses on Bill C-262 at that time by jurists in Canada cannot now be cited as determining the full meaning of the current Act.

Article 40 of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) affirms that Indigenous peoples have the right … to “effective remedies for all infringements of their individual and collective rights” (emphasis added). Thus, in accordance with section 5 of the federal Act respecting the UN Declaration, Canada is required – in consultation and cooperation with Indigenous peoples – to take “all measures necessary” to ensure that the laws of Canada meet that standard elaborated in article 40 of the UN Declaration. In contrast, the Supreme Court of Canada has extensively relied upon “infringement” in allowing federal and provincial governments to undermine Indigenous peoples’ rights (see e.g., Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 (CanLII), where “infringe” or “infringement” is referred to over 60 times).

International human rights law allows for “limitations” but not infringements. For example, see International Covenant on Economic, Social and Cultural Rights, article 4: “The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society” (emphasis added). For a similar reference to “limitations”, see International Covenant on Civil and Political Rights, art 49; Can TS 1976 No 47, accession by Canada 19 May 1976, art 5. Canada, including Québec and other provinces, must respect such international obligations in the two Covenants.

A further result of this and other federal Acts (See also, e.g., An Act respecting Indigenous languages, SC 2019, c 23) is that the new minimum standard is no longer solely a “duty to consult” with Indigenous peoples, as has been previously defined by Canada’s highest court. The minimum standard in the UN Declaration is “consultation and cooperation” with Indigenous peoples. “Cooperation” adds a significant positive element. This new minimum standard has also been adopted in British Columbia’s Declaration on the Right of Indigenous Peoples Act, SBC 2019, c 44 (assented to by consensus November 28, 2019), as well as in the American Declaration on the Rights of Indigenous Peoples, AG/RES 2888 (XLVI-O/16) (adopted without vote by Organization of American States, General Assembly, 46^th sess, 15 June 2016).

The Québec government participates in the Continuing Committee of Officials on Human Rights. This is the “federal-provincial-territorial committee responsible for maintaining collaboration and consultation among governments in Canada with respect to implementation of international human rights instruments that Canada has ratified”.

A Motion was adopted by the Québec National Assembly that included the following: “That it recall that the government made a commitment, on October 8, 2019, to recognize the principles and to negotiate the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (emphasis added).

This Motion was followed with a second Motion on the UN Declaration that was adopted on October 1, 2020 requesting the following : “Take note of the conclusions of the Viens commission and ask the government to recognize the principles and commit to negotiating the implementation of the United Nations Declaration on the Rights of Indigenous Peoples with First Nations and Inuit” (Unofficial translation).

It is concerning that, to date, the Québec government has failed to implement the United Nations Declaration on the Rights of Indigenous Peoples, nor even begun taking meaningful steps to do so. In the Viens Report, Call for Action No 3 provides: “Working with Indigenous authorities, draft and enact legislation guaranteeing that the provisions of the United Nations Declaration on the Rights of Indigenous Peoples will be taken into account in the body of legislation under its jurisdiction.”

To date, the UN Declaration has been reaffirmed by the UN General Assembly at least 14 times by consensus (see See General Assembly, Rights of indigenous peoples, UN Doc A/RES/76/148 preamble; General Assembly, Human rights and extreme poverty, UN Doc A/RES/75/175 preamble; General Assembly, Intensification of efforts to prevent and eliminate all forms of violence against women and girls, UN Doc A/RES/75/158; General Assembly, Rights of indigenous peoples, UN Doc A/RES/75/168 preamble; General Assembly, Rights of indigenous peoples, UN Doc A/RES/74/135 preamble; General Assembly, Rights of indigenous peoples, UN Doc A/RES/73/156 preamble; General Assembly, Human rights and extreme poverty, UN Doc A/RES/73/163; General Assembly, Rights of the child, UN Doc A/RES/72/245; General Assembly, Rights of indigenous peoples, UN Doc A/RES/72/155 preamble; General Assembly, Enhancing the Participation of Indigenous Peoples’ Representatives and Institutions in Meetings of Relevant United Nations Bodies on Issues Affecting Them, UN Doc A/RES/71/321 preamble; General Assembly, Rights of indigenous peoples, UN Doc A/RES/71/178 preamble; General Assembly, Rights of indigenous peoples, UN Doc A/RES/70/232 preamble; General Assembly, Rights of indigenous peoples, UN Doc A/RES/69/159 preamble; General Assembly, Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, UN Doc A/RES/69/2 para 3).

Such widespread support reinforces the significance of the UN Declaration and its legal effect. As the International Law Association has concluded:

… according to the prevailing view, … the rights expressed by certain provisions included in the [UN Declaration] have already achieved the status of rules of customary international law. These rules relate to, in particular, the rights of Indigenous peoples to self-determination, to autonomy or self-government, to their cultural heritage and identity, to their traditional lands, territories and resources, as well as to reparation and redress for the wrongs they have suffered. The UNDRIP is therefore the key standard-setting instrument incorporating the parameters for the identification of the rights of Indigenous peoples actually existing in the framework of contemporary international law (at 12-13, emphasis added).

In conclusion, it is important to note that Québec’s litigation runs counter to the Motion agreed to unanimously by Québec’s National Assembly on June 11, 2015, including the now Premier:

Recognizing that Indigenous residential schools were a tool of cultural genocide and request the implementation of the recommendations [Calls to Action] of the Truth and Reconciliation Commission of Canada… (emphasis added).

In Call to Action 4, the Truth and Reconciliation Commission (TRC) calls for federal government legislation to enact “Aboriginal child-welfare legislation that establishes national standards” and that “affirm[s] the right of Aboriginal governments to establish and maintain their own child-welfare agencies” (emphasis added). Since the Québec National Assembly unanimously supported TRC Call to Action 4 and also called for such federal legislation, the Québec government will hopefully reconsider its positions and adopt a more positive and reinforcing response.

In summary, the Québec government continues to engage in a number of actions and statements that run counter to its own positions, apologies and legal obligations. Such deplorable conduct undermines the well-being of Indigenous children, whose vulnerability has been repeatedly neglected or ignored for years.

By its own admission, Québec has repeatedly failed to ensure the well-being of Indigenous children in its care and instead has abused them. The Viens Commission has documented the province’s repeated failings.

At the same time, Québec has opted to explicitly “ratify” a number of international conventions relating to the human rights of “peoples”, as well as children. Yet the province continues to violate its human rights obligations to Indigenous peoples and children in Québec. In particular, in the current litigation, Québec has actively opposed the right of self-determination – including self-government – of Indigenous peoples.

In light of such appalling treatment by Québec, the measures set out in the First Nations, Inuit and Métis Child, Youth and Family Services Act are urgent, timely, and remedial. Indigenous children merit no less.

This post may be cited as: Paul Joffe, “Supporting Indigenous Peoples’ Human Rights – Especially Children” (August 25, 2022), online: ABlawg, http://ablawg.ca/wp-content/uploads/2022/08/ Blog_PJ_Quebec_Indigenous_Human_Rights.pdf

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