Microsoft Word 'Veto' and 'Consent' Significant differences Joffe final mar 23 16. doc
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48 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Addendum: The situation of indigenous peoples in Canada, UN Doc. A/HRC/27/52/Add.2 (4 July 2014), Annex (Conclusions), para. 98.
49
50 Asia Pacific Forum of National Human Rights Institutions and Office of the United Nations High Commissioner for Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions (APF and OHCHR, 2013), http://www.ohchr.org/Documents/Issues/IPeoples/UNDRIPManualForNHRIs.pdf
51
for Parliamentarians N° 23, 2014, http://www.ipu.org/PDF/publications/indigenous-en.pdf . 52
participation of indigenous peoples in hearings and committees, while respecting the principle of free, prior and informed consent in relation to legislative and administrative matters affecting them”. 53 African Commission on Human and Peoples' Rights, Communication No. 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Twenty-Seventh Activity Report, 2009, Annex 5, paras. 204, n. 108; 207; 232; and 243.
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55 E.g., Sarstoon Temash Institute for Indigenous Management [SATIIM] v. Attorney General of Belize, Claim No. 394 of 2013, Supreme Court of Belize, decision rendered by the Hon. Michelle Arana, 3 April 2014, para. 19; Paki and
(appeal denied [2012] NZSC 116), para. 250, n. 259; Aurukun Shire Council & Anor v. CEO Office of Liquor Gaming and Racing in the Department of Treasury, [2010] QCA 37, Supreme Ct. Queensland, paras. 33-35. 56 Cal et al. v. Attorney General of Belize and Minister of Natural Resources and Environment, Claim No. 171, and Coy et al. v. Attorney General of Belize and Minister of Natural Resources and Environment, Claim No. 172, Consolidated Claims, Supreme Court of Belize, judgment rendered on 18 October 2007 by the Hon. Abdulai Conteh, Chief Justice. 57 Attorney-General of Belize et al. v. Maya Leaders Alliance et al., Belize Court of Appeal, Civil Appeal No. 27 of 2010, judgment rendered on 25 July 2013. 58 Ibid., paras. 276 and 277. 59 Haida Nation, supra, para. 27. [emphasis added]
60
61 Ibid., para. 47. [emphasis added] 62 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 161. In regard to rights in the Canadian Charter of Rights and Freedoms and constitutionally guaranteed Aboriginal rights, see R. v. Nikal, [1996] 1 S.C.R. 1013, at 1057- 58 (per Cory J.).
63
the “rights of peoples … and specific groups” under the heading “Promotion and protection of all human rights … including the right to development”: see Annex in Human Rights Council, Institution-building of the United Nations Human Rights Council, Res. 5/1, 18 June 2007 (adopted without vote), approved in General Assembly, Report of the Human Rights Council, UN Doc. A/RES/62/219 (22 December 2007).
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64 Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action, 2015, http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf , at 4, para. 43. At para. 44, the Commission calls upon the Government of Canada “to develop a national action plan, strategies, and other concrete measures to achieve the goals” of the UN Declaration.
See also UN Secretary-General (Ban Ki-moon), “Secretary-General Praises Canada’s Truth, Reconciliation Commission for Setting Example by Addressing Systemic Rights Violations against Indigenous Peoples”, SG/SM/16812, 1 June 2015, http://www.un.org/press/en/2015/sgsm16812.doc.htm , where the Secretary-General encouraged follow-up of the TRC’s recommendations using the UN Declaration as a “roadmap”.
65 Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: Reconciliation, Final Report of the Truth and Reconciliation Commission of Canada, (Montreal/Kingston: McGill-Queen’s University Press, 2015), Volume 6, http://www.myrobust.com/websites/trcinstitution/File/Reports/Volume_6_Reconciliation_English_Web.pdf, at 3. [emphasis added] 66 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries operating within or near indigenous territories, UN Doc. A/HRC/18/35 (11 July 2011), para. 82 (Conclusions and Recommendations). 67 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, Addendum: The situation of indigenous peoples in the United States of America, UN Doc. A/HRC/21/47/Add.1 (30 August 2012), para. 85. 68 Haida Nation v. British Columbia (Minister of Forests), supra, para. 32 69 E.g., UN Declaration, article 46(2): “The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.” 70 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, per La Forest and L'Heureux-Dubé JJ., paras. 202-203. [emphasis added]
71 Tsilhqot’in Nation, supra, paras. 2 and 88.
72 Ibid., para. 86.
73 Ibid., para. 88.
74 Matthew Collins et al., “2013: Long-term Climate Change: Projections, Commitments and Irreversibility”, ch. 12 in T.F. Stocker et al., eds.., Climate Change 2013: The Physical Science Basis, Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, Cambridge, United Kingdom and New York, http://www.ipcc.ch/pdf/assessmentreport/ ar5/wg1/WG1AR5_Chapter12_FINAL.pdf , at 1033: “A large fraction of climate change is largely irreversible on human time scales, unless net anthropogenic CO2 emissions were strongly negative over a sustained period.” [bold in original, underline added]
75 Office of the Auditor General of Canada, Report of the Commissioner of the Environment and Sustainable Development – Fall 2014 (Ottawa: Minister of Public Works and Government Services, 2014), ch. 1 “Mitigating Climate Change”, at 32 “Conclusions”, para. 1.80: “We are concerned that Canada will not meet its 2020 emission reduction target and that the federal government does not yet have a plan for how it will work toward the greater reductions required beyond 2020.”
76 Tsilhqot'in Nation, supra, para. 87.
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77
OHCHR, Understanding Human Rights and Climate Change, Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, 26 November 2015, at 4.
78
Rights Protections For All”, An Open Letter from 27 Special Procedures mandate-holders of the Human Rights Council to the State Parties to the UN Framework Convention on Climate Change on the occasion of the meeting of the Ad Hoc Working Group on the Durban Platform for Enhanced Action in Bonn (20-25 October 2014), 17 October 2014, http://www.ohchr.org/Documents/HRBodies/SP/SP_To_UNFCCC.pdf , at 3. [emphasis added]
79 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries and indigenous peoples, UN Doc. A/ HRC/24/41 (1 July 2013), para. 32.
80 Ibid. [emphasis added] In the same paragraph, Anaya highlights the allowable limitations in the UN Declaration, article 46(2).
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than in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Reasons include, inter alia: Indigenous peoples are peoples with the right of self- determination, including self-government. They are still suffering the debilitating effects of colonization, land and resource dispossession; racial discrimination; marginalization – and the resulting effects of severe impoverishment. The
distinctive relationship with their lands, territories, resources and environment that must receive full consideration and respect.
See also R. v. Ipeelee, 2012 SCC 13, para. 60: "To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples." [emphasis added]
82 See, e.g., "Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework" in Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework, Report of the Special Representative of the Secretary- General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, UN Doc. A/HRC/17/31 (21 March 2011), Annex, Principle 12 and Commentary.
83 Human Rights Council, Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/23/32 (14 March 2013), para. 53: “The Working Group identified as priorities the need: (a) To encourage the use of the Guiding Principles in promoting the corporate responsibility to respect human rights in relation to indigenous peoples and business activities in alignment with other relevant standards,
84 Human Rights Council, Report of the Special Rapporteur on the human rights obligations related to environmentally sound management and disposal of hazardous substances and waste, Calin Georgescu, UN Doc. A/HRC/21/48 (2 July 2012), para. 70(d).
85
A/HRC/21/47 (6 July 2012), para. 61.
86 Amy K. Lehr & Gare A. Smith, Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges, eBook (Boston/Washington, D.C.: Foley Hoag LLP, 2010), http://www.foleyhoag.com/publications/ebooks-and-white-papers/2010/may/implementing-a-corporate-free-prior-and- informed-consent-policy , at 37. 87 International Finance Corporation (World Bank Group), “Performance Standard 7: Indigenous Peoples”, 1 January 2012, 21
http://www1.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES , at 3-5, paras. 13-17. 88 UN Global Compact, A Business Reference Guide: United Nations Declaration on the Rights of Indigenous Peoples (New York: UN Global Compact, 2013), http://www.unglobalcompact.org/docs/issues_doc/human_rights/IndigenousPeoples/BusinessGuide.pdf . The UN Global Compact describes itself as the large corporate responsibility initiative in the world, with over 8,400 business signatories from 162 countries.
89 Ibid., at 25.
90 Ibid.
91 Ibid.
92 Ibid., at 26.
93 International Council on Mining and Metals, “Indigenous Peoples and Mining”, Position Statement, May 2013, http://www.icmm.com/document/5433 , at 2. 94 Boreal Leadership Council, “Understanding Successful Approaches to Free, Prior, and Informed Consent in Canada”, September 2015, http://borealcouncil.ca/wp-content/uploads/2015/09/BLC_FPIC_Successes_Report_Sept_2015_E.pdf , at 21. The Council is self-described as “comprised of leading conservation groups, First Nations, resource companies and financial institutions”. 95 TRC, Truth and Reconciliation Commission of Canada: Calls to Action, 2015, supra, at 10, para. 92. 96 Ibid., para. 92i. See also Robert Walker and Dave Porter, “A New Path Forward For Resource Development – And Reconciliation”, http://solutions-network.org/site-fpic/files/2012/09/Boreal-Leadership-Council-FPIC-op-ed-final.pdf : “The Truth and Reconciliation Commission report has further demonstrated the need to reconcile a dismal past with a positive future based on mutual respect, trust and partnership. Resource development and FPIC are at the heart of this journey. … Quite simply, this is the 21st Century and the time to recognize rights, develop genuine respect and trust, and work together as equal partners is long overdue.” 97 Prime Minister Justin Trudeau, “Statement by Prime Minister on release of the Final Report of the Truth and Reconciliation Commission”, 15 December 2015, http://pm.gc.ca/eng/news/2015/12/15/statement-prime-minister- release-final-report-truth-and-reconciliation-commission . See also Office of the Prime Minister (Rt. Hon. Justin Trudeau), “Minister of Indigenous and Northern Affairs Mandate Letter”, November 2015, http://pm.gc.ca/eng/minister-indigenous-and-northern-affairs-mandate-letter.
98
Peoples Outcome Document”, New York, 22 September 2014, http://www.canadainternational.gc.ca/prmny- mponu/canada_un-canada_onu/statements-declarations/other-autres/2014-09-22_WCIPD-PADD.aspx?lang=eng .
99 Ryan Beaton, “Aboriginal Title in Recent Supreme Court of Canada Jurisprudence: What Remains of Radical Crown Title?”, 33 N.J.C.L. 61 at 78: “the Court has already recognized that such a “veto” is constitutionally guaranteed in certain circumstances, if by “veto” we mean simply the right to stop (through recourse to the courts) the Crown from acting unilaterally in cases where the Crown’s proposed action is unconstitutional, e.g. where the full consent of the Aboriginal group(s) is constitutionally required but not obtained.”
100
Ibid. at 79: “no one is claiming any arbitrary veto power”.
101 Government of Canada, Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (February 2008) at 53.
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102 Government of Canada, Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011), http://www.aadnc-aandc.gc.ca/eng/1100100014664/1100100014675 .
Canada, “Explanations of Position of Members Which Requested that They Be Included in the Final Report”, Annex E in Committee on World Food Security, Report of the 41st Session of the Committee on World Food Security (Rome, 13-18 October 2014), CFS 41 Final Report, November 2014, http://www.fao.org/fileadmin/templates/cfs/Docs1314/CFS41/CFS41_Final_Report_EN.pdf , at 39. [emphasis added]
104 Identical article 1(2) of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. 105
UN Declaration, article 20(1). 106
Committee on Economic, Social and Cultural Rights, General Comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/21 (21 December 2009). 107 Ibid., para. 55. 108 Ibid., para. 55(d). 109 Ibid., para. 55(e). 110 Human Rights Council, Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum: Mission to Canada, UN Doc. A/HRC/22/50/Add.1 (24 December 2012), para. 67. See also Human Rights Council, Report of the Special Rapporteur on the right to food on her mission to Philippines, UN Doc. A/HRC/31/51/Add.1 (29 December 2015), para. 37: “the Special Rapporteur [Hilal Elver] stresses the importance of the principle of free, prior and informed consent to any change to the lands and territories of indigenous peoples, as also provided for in the United Nations Declaration on the Rights of Indigenous Peoples.” 111
Vienna Declaration and Programme of Action, United Nations World Conference on Human Rights, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), Part I, para. 32: "The World Conference on Human Rights reaffirms the importance of ensuring the universality, objectivity and non-selectivity of the consideration of human rights issues." [emphasis added]
112
See, e.g. Permanent Forum on Indigenous Issues, Report on the fourteenth session (April 20 – 1 May 2015), Economic and Social Council, Official Records, Supplement No. 23, United Nations, New York, E/2015/43- E/C.19/2015/10, http://www.un.org/ga/search/view_doc.asp?symbol=E/2015/43 , para. 35: “In accordance with … the United Nations Declaration, States, in conjunction with indigenous peoples, should develop legislation and mechanisms at the national level to ensure that laws are consistent with the United Nations Declaration.”
113 For a similar perspective, see Canadian Association of Statutory Human Rights Agencies (CASHRA), "Canada's Human Rights Agencies call on all levels of Government to endorse the UN Declaration on the Rights of Indigenous Peoples", July 2012, http://www.cashra.ca/news.html .
Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: Reconciliation, Final Report of the Truth and Reconciliation Commission of Canada, (Montreal/Kingston: McGill-Queen’s University Press, 2015), Volume 6, http://www.myrobust.com/websites/trcinstitution/File/Reports/Volume_6_Reconciliation_English_Web.pdf , at 132: “Around the globe, the adoption of the United Nations Declaration on the Rights of Indigenous Peoples has resulted in the growing recognition that Indigenous peoples have the right to be self-determining peoples ... The Declaration also establishes that actions by the state that affect Indigenous peoples require their free, prior, and informed consent.” Yüklə 265,12 Kb. Dostları ilə paylaş:
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