Microsoft Word 'Veto' and 'Consent' Significant differences Joffe final mar 23 16. doc
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4 Ibid., para. 20 [emphasis added] 5 See, e.g., House of Commons Debates, Hansard, 41st Parl., 2nd sess., vol. 147, no. 18, at 12084 (quoting Mark Strahl (Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development, CPC)): “According to the language in [Bill C-641], aboriginal Canadians would have a veto over any piece of legislation brought forward by a Canadian government.”
See Private Member’s Bill C-641 – An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, House of Commons, 2nd sess., 41st Parl., First reading (defeated by Conservative government). The Bill requires that the government of Canada, "in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that all laws of Canada are consistent with the United Nations Declaration" (s. 2). The Indian Affairs minister is required in s. 3 of the Bill to submit a report on such collaborative implementation each year from 2016 to 2036.
6 Canada, “Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples”, 12 November 2010, http://www.aadnc-aandc.gc.ca/eng/1309374239861 : “We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework."
7 See, e.g., Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on Economic, Social and Cultural Rights: Colombia, UN Doc. E/C.12/COL/CO/5 (21 May 2010), para. 9: "The Committee is concerned that infrastructure, development and mining mega-projects are being carried out in the State party without the free, prior and informed consent of the affected indigenous and afro-colombian communities." [emphasis added]
Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Canada, UN Doc. CERD/C/CAN/CO/19-20 (4 April 2012), para. 20: “the Committee recommends that the State party, in consultation with Aboriginal peoples: (a) Implement in good faith the right to consultation and to free, prior and informed consent of Aboriginal peoples whenever their rights may be affected by projects carried out on their lands, as set forth in international standards and the State party’s legislation”.
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. 9 This issue is discussed in detail below. The term "veto" is also raised in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, para. 14: "The First Nation does not have a veto over the approval process." However, a veto over the approval process is a different issue from a veto over a proposed development.
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'Consent'", 14 June 2013, http://quakerservice.ca/news/un-declaration-on-the-rights-of-indigenous-peoples-consent/ .
See heading 3 below. 12 Robert McCorquodale, “Self-Determination: A Human Rights Approach”, (1994) 43 Int’l & Comp. L.Q. 857, at pp. 884-885: “the human rights approach...does provide a framework to enable every situation to be considered and all the relevant rights and interests to be taken into account, balanced and analysed. This balance means that the geopolitical context of the right being claimed – the particular historical circumstances – and the present constitutional order of the State and of international society, is acknowledged and addressed.”
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contextual approach to s. 15 [of the Canadian Charter of Rights and Freedoms] requires that the equality analysis of provisions relating to Aboriginal people must always proceed with consideration of and respect for Aboriginal heritage and distinctiveness, recognition of Aboriginal and treaty rights, and with emphasis on the importance for Aboriginal Canadians of their values and history.”
See also Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, at para. 50: “The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be 15
reconciled: … Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will … go on to balance the interests at stake” [emphasis added]
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th preambular para. 15 James Y. Henderson, “A snapshot in the journey of the adoption of the UN Declaration on the Rights of Indigenous Peoples”, Justice as Healing, Newsletter, Native Law Centre, University of Saskatchewan, vol. 13, No. 1, 2008, at 2-3. 16 Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya, UN Doc. A/HRC/9/9 (11 August 2008), para. 86.
17 Committee on the Elimination of Racial Discrimination, "Consideration of reports, comments and information submitted by States parties under article 9 of the Convention (continued): Nineteenth and twentieth periodic reports of Canada (continued)", Summary record of 1242nd meeting on 23 February 2012, UN Doc. CERD/C/SR.2142 (2 March 2012), para. 39. [emphasis added] 18 Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at 348 (Dickson C.J. dissenting). [emphasis added] Cited with approval in United States of America v. Burns, [2001] 1 S.C.R. 283, para. 80. 19 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, para. 142: “The Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II. Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial.” [emphasis added] The Court is referring here to 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. 20 Rt. Hon. Beverley McLachlin, P.C., Chief Justice of Canada, "Aboriginal Peoples and Reconciliation", (2003) 9 Canterbury Law Review 240. [emphasis added]
21 Royal Commission on Aboriginal Peoples, "Looking Forward, Looking Back", Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communication Group, 1996), vol. 1, at 209-210.
See also Brian Slattery, "Is the Royal Proclamation of 1763 a dead letter?", Canada Watch, Fall 2013, http://activehistory.ca/wp-content/uploads/2013/09/CW_Fall2013.pdf , 6 at 6: “the Proclamation, like the Magna Carta, sets out timeless legal principles. … Changes in circumstances have altered the way in which these principles apply, but the principles themselves are as fresh and significant as ever. … [Indigenous] peoples hold legal title to their traditional territories, which cannot be settled or taken from them without their consent.”
22 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44.
23 Tsilhqot'in Nation, supra, para. 76.
24 Haida Nation, supra, para. 24 (emphasis added, quotes from Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 168). [emphasis added]
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26 Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 178 D.L.R. (4 th ) 666 (B.C.C.A.), at para. 160. This paragraph was cited with approval in Mikisew Cree First Nation v. Canada (Minister of Canadian
27 Tsilhqot’in Nation, supra, para. 92. [emphasis added]
28 Ibid. [emphasis added]
29 Human Rights Council, Final report of the study on indigenous peoples and the right to participate in decision- making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/18/42 (17 August 2011), Annex Yüklə 265,12 Kb. Dostları ilə paylaş:
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