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2014 Year in Review – Tsilhqot’in Nation v. British Columbia: A Landmark Decision from the Supreme Court of Canada

By Lara Koerner Yeo

On June 26, 2014, the Supreme Court of Canada (SCC) released a landmark decision on Aboriginal title in Canada. In Tsilhqot’in Nation v British Columbia,[1] the Court establishes Aboriginal title for the first time in Canada, recognizing the Tsilhqot’in Nation as a holder of Aboriginal title across a swath of land in northwestern British Columbia. The decision further clarifies the test for determining Aboriginal title and the scope of the rights that flow from it. In addition, the Court describes the obligations of the Crown, and third parties, when these entities seek to infringe upon Aboriginal title.

Decision provides further clarity on the test for establishing Aboriginal title

Central to this decision is its determination that First Nations can legitimately hold title over large swaths of land. The ruling overturns the BC Court of Appeal “small spots” or site-specific framework for assessing Aboriginal title claims.

The Court reaffirmed and clarified the three-pronged test for Aboriginal title set out in Delgamuukw v British Columbia, which requires proof of sufficient, continuous, and exclusive occupation. An Aboriginal First Nation must illustrate: (1) that it maintained a presence over the land in such a way that a third-party would, and can, recognize that presence; (2) that it was present on the land prior to Crown sovereignty; and, (3) that it exercised exclusivity over the land.[2] Canadian courts are obliged to consider an Aboriginal title claim in a culturally sensitive way, recognizing the group’s specific custom and law, when deciding whether or not a claim satisfies the test.[3]

The Court further elaborated on the bundle of property rights flowing from Aboriginal title in the Tsilhqot’in decision. Property rights flowing from Aboriginal title include: “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”[4]

The decision further clarifies Crown and other third-party obligations when approaching use of Aboriginal title lands

The Tsilhqot’in decision changes how Aboriginal First Nations, the Crown, and third parties are required to act in regard to land use projects on Aboriginal title lands. If the Crown or third parties want to make use of Aboriginal title lands, they must seek the consent of the Aboriginal title interest claimant,[5] irrespective of whether the title claim has been recognized by the courts.[6] If the Aboriginal title claimant refuses consent, parties must have a “compelling and substantial” objective to infringe upon the lands, which must conform to the spirit of reconciliation with Aboriginal peoples in Canada and align with the State’s fiduciary duty.[7]

Canada breaches its fiduciary duty if an infringement would deprive future generations of the ability to benefit from the land and if the gravity of the infringement is not proportional to the benefits enjoyed by the Aboriginal titleholders and the public at large.[8] Courts must consider both Aboriginal and non-Aboriginal worldviews and find the party’s objectives to be consistent with the Crown’s fiduciary duty to the Nation claiming title.

A win for the realization of Aboriginal title rights in Canada

The doctrine of terra nullius, which asserts that no individual or group held title to land before European sovereignty, is not a recognized way of justifying territorial acquisition in human rights law. The Economic and Social Council of the United Nations has called for the doctrine to be “eradicated from modern legal systems;”[9] moreover, the United Nations Permanent Forum has called for a special mechanism to investigate historical land claims.

The Tsilhqot’in decision supports the call to extinguish land claims made by asserting terra nullius. Chief Justice McLachlin, writing for the unanimous Court, asserts that the doctrine never applied in Canada and can never be used as a legal foundation to establish title.[10]

Human rights treaties, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and other normative human rights instruments, establish an international framework for Indigenous rights law. This is a unique area of law within the human rights system that recognizes a differentiated set of rights for indigenous peoples, including the right to occupy and use traditional lands. United Nations treaty review bodies have recommended that Canada not infringe upon the realization and development of Aboriginal rights, including title, in Canada.[11] More recently, the former UN Special Rapporteur on Indigenous Peoples, James Anaya, recommended that Canada continue to improve the land claim process in a way that does not restrictively interpret Aboriginal rights.

The UNDRIP is the principal authority on Indigenous rights in the international human rights system. The Declaration promotes harmonious relations between States and Indigenous peoples and enshrines, in article 26, Indigenous peoples’ rights to their traditional lands and resources, including the rights to own, use, develop, and control such lands. Furthermore, Article 27 establishes that there should be a “fair, independent, impartial, open and transparent process…to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources” in a culturally sensitive way that embraces Indigenous custom, law, and worldviews.

The Supreme Court has moved the law forward on Aboriginal title in a way that better aligns with the aforementioned aspects of Indigenous rights law. The decision affirms the importance of Aboriginal custom and worldviews and strengthens Canada’s commitment to realizing Aboriginal title rights in domestic law and practice.

Footnotes

[1]                      Tsilhqot’in Nation v British Columbia, 2014 SCC 44, online: <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do> [Tsilhoqt’in Nation].

[2]                      Ibid. at para 25.

[3]                      Ibid at para 41.

[4]                      Ibid at para 73.

[5]                      Ibid at para 76.

[6]                     Ibid at para 78.

[7]                      Ibid at para 84.

[8]                      Ibid at paras 86-7.

[9]                      United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, UN Doc E/CN.4/1989/22, 8 Feb 1989, para 40(b) at 10.

[10]        Tsilhqot’in Nation, supra note 1 at para 69.

[11]                    UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 20(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En; and, UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

For more information see:
The Torys LLP Aboriginal Bulletin, “The Supreme Court of Canada’s Historic Aboriginal Title Case”

By |March 5th, 2015|Blog|

2014 Year in Review: Munyaneza – Canada’s International Criminal Justice System Comes of Age

By Juda Strawczynski

The Quebec Court of Appeal’s decision in Munyaneza was one of the most important cases to be appealed to the Supreme Court of Canada in 2014.  Désiré Munyaneza appealed his conviction and life sentence for seven separate counts under Canada’s Crimes Against Humanity and War Crimes Act, S.C. 2000, c.24 (“Act”).  The convictions arose out of his participation in the Rwandan genocide of 1994 and consisted of:

– two counts of genocide, one by murder and the other by causing serious bodily or mental harm;
– two counts of crimes against humanity, one by intentional killings and the other by acts of sexual violence;
– three counts of war crimes, the first by murders, the second by acts of sexual violence, and the third by pillage (QCCA at para. 7)

However, unlike the other top cases of 2014, in Munyaneza the Supreme Court denied leave to appeal. As reasons for denying leave are not provided by the Supreme Court, it only took Justices LeBel, Karakatsanis, and Gascon one sentence to provide closure for Munyaneza’s victims.

The Supreme Court of Canada’s decision to deny leave is itself a major victory for international criminal justice. It demonstrates that Canada’s approach to international justice has reached a level of maturity: jurisdictional issues that typically complicate prosecutions of crimes against humanity and war crimes no longer necessitate a full hearing at the Supreme Court. Rather, lower courts are entrusted with the hearing of prosecutions under the Act, despite their jurisdictional and factual complexity.  The Munyaneza trial, for example, took 8 months, the Court heard from 66 witnesses, and 200 exhibits were filed.

Canada’s trial courts also appear to be suited to review, interpret, and apply international criminal law.  In the Munyaneza trial decision, Justice Denis considered the Rome Statute, as well as case law from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC).  His decision demonstrates that Canadian courts at all levels are able to interpret,and participate in the transnational development of international criminal law, and thereby protect universal human rights.

The Supreme Court of Canada’s decision to deny leave to appeal sends the clear message that Canada has the proper authority under both national and international law to prosecute war crimes and crimes against humanity. Indeed, at the Quebec Court of Appeal, Munyaneza argued that certain charges against him could not be prosecuted in Canada because they were either not war crimes under international law at the time of the Rwandan genocide, or because this would give the Act retroactive effect contrary to the Charter of Rights and Freedoms. CLAIHR and the Canadian Centre for International Justice intervened at the Quebec Court of Appeal to respond to these arguments. The Quebec Court of Appeal ultimately rejected Munyaneza’s arguments.

The precedent-setting Munyaneza case stands for the principle that Canada will not allow the violation of human rights, wherever they have taken place, and even if Canada must use its own court system to see that justice is served.

 

 

By |February 20th, 2015|Blog|

2014 Year in Review: Canada’s Top Court Rejects Torture as Tort

By Heather Cohen

In Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, the Supreme Court of Canada held that Canada’s State Immunity Act, RSC 1985, c S-18 (SIA) acts as a complete bar to prevent Canadian courts from providing redress through civil claims for torture committed abroad.

In 2003, photojournalist Zahra (Ziba) Kazemi, a Canadian citizen born in Iran was taking pictures of protesters near a prison in Tehran when she was arrested, held in that very same prison, and tortured to death. In 2006, Kazemi’s son, Stephan Hashemi, on his own behalf and on behalf of his mother’s estate, filed a civil lawsuit in Montreal against Iran and three individual Iranian officials: Ayatollah Ali Khomeini, Iran’s Supreme Leader; Saeed Mortazavi, Tehran’s Chief Public Prosecutor alleged to have ordered Kazemi’s arrest; and Mohammad Bakhshi, the former Deputy Chief of Intelligence for Evin Prison, the site of Kazemi’s abuse.

Relying on the SIA as a complete bar to the plaintiffs’ action, the defendants brought a motion to strike. The decision of the Quebec Superior Court was released in 2011. Justice Robert Mongeon would have allowed Hashemi’s individual claims to go forward given that he had suffered injuries in Canada (an exception under the SIA), but dismissed the claims in the name of Kazemi’s estate, as the related abuses were suffered only outside of Canada.

On appeal to the Quebec Court of Appeal, that Court held that the SIA operated as complete bar to prevent any of the claims from going forward. The case was then appealed to the Supreme Court of Canada, at which point CLAIHR was granted leave to intervene. CLAIHR picked up the reasoning of Justice Mongeon at the Quebec Superior Court and argued that serious psychological trauma, when suffered in Canada, constitutes an exception to state immunity under s. 6(a) of the SIA. The Supreme Court of Canada ultimately rejected this argument and upheld the decision of the Quebec Court of Appeal.

Unlike the United States, Canada has no alien tort statute. The plaintiffs and certain interveners in Kazemi relied, in part, on international law, and particularly the prohibition of torture as a jus cogens norm to ground their cause of action. The Honourable Justice LeBel, for the majority, agreed that the prohibition of torture is jus cogens, but that there was no requirement under international law that Canada open its courts to permit its citizens to seek redress through civil claims for torture committed abroad.

Justice LeBel did suggest that Parliament could choose to offer the plaintiffs redress, noting:

Parliament has the ability to change the current state of the law on exceptions to state immunity, just as it did in the case of terrorism, and allow those in situations like Mr. Hashemi and his mother’s estate to seek redress in Canadian courts. Parliament has simply chosen not to do it yet. [Emphasis added.]

The “yet” at the end of the Supreme Court of Canada decision suggests that the Court itself would like to see Parliament make this change. Efforts are underway to lobby the federal government to adopt legislation that would enable Canadians to seek redress for torture suffered abroad. While such a law would not go as far as the alien tort statute, it would help Canadians hold states which commit human rights abuses accountable for their actions. In the meantime, supporters of international human rights will have to satisfy themselves with the Honourable Justice Abella’s dissent in the Kazemi decision:

In the face of universal acceptance of the prohibition against torture, concerns about any interference with sovereignty which may be created by acting in judgment of an individual state official who violates this prohibition necessarily shrink. The very nature of the prohibition as a peremptory norm means that all states agree that torture cannot be condoned. Torture cannot, therefore, be an official state act for the purposes of immunity ratione materiae.

By |February 12th, 2015|Blog|

2014 Year in Review: World Pride Toronto!

By Peewara Sapsuwan 

In 2014 Toronto hosted the third World Pride. Toronto was a natural choice to follow up on the World Pride events previously held in Rome and Jerusalem; Toronto’s annual Pride festival attacts more than 1.2 million visitors. The 10-day World Pride event was a celebration of diversity and acceptance attracted more than 350 groups, including 12,500 marchers and 400 delegates from all over the globe (source.) Political figures, including Ontario’s first openly gay premier Kathleen Wynne participated in the march.

Global LGBTQ rights took Toronto’s World Pride’s center stage, with the World Pride Human Rights Conference taking place along side the World Pride event. Some topics included two-spirited persons, asexuality, intersex persons and parents, LGBTQ refugees in Canada, and LGBTQ rights in Eastern Europe, Russia, and Uganda.

It is important to appreciate how far LGBTQ rights in Canada have come since the days when homosexuality was a capital crime. However, it is equally important to remember that the law has not always been accepting towards Canada’s LGBTQ’s communities. It was only in 1969 when homosexuality was decriminalized in Canada under the Criminal Law Amendment Act, 1968-69. Canada’s last person who was convicted for homosexuality (under gross indecency), George Klippert, was released only in 1971.

World Pride also reminded Canadians that although many LGBTQ rights are well protected in Canada, many gender and sexual identities around the world are still struggling to be recognized, and many individuals are still violently persecuted for who they are. For this reason, World Pride 2014 was an expression of Canada’s value and its solidarity with the LGBTQ communities around the world.

 

 

By |February 9th, 2015|Blog|

Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed

By Azeezah Kanji

When and how is public international law relevant in Canadian courts, if it is ever relevant at all? The nutshell-portable answer is: it’s complicated! – but international law may be relevant in a variety of different contexts, and in a variety of different ways.

Broadly speaking, there are two ways of describing the relationship between domestic law and international law: “monist” and “dualist.” From a monist perspective, international law and domestic law are one unified system: international laws are automatically part of domestic law. Conversely, from a dualist perspective, international law and domestic law are two separate legal systems: while international laws may be valid internationally, they cannot be applied domestically unless they are first given force of law in domestic legislation.

Here’s another, more familiar (or should I say – familial), way of thinking about this. In monism, international law and domestic law are like blood relatives. They are automatically members of the same clan/system – even if international law is sometimes treated like the slightly eccentric distant cousin whose positions often fail to carry the day in family arguments. In dualism, however, domestic and international law are more like potential in-laws. Some legally transformative act must be performed before the two become one: marriage in the one case, domestic implementing legislation in the other.

Monism and dualism are not mutually exclusive. A domestic legal system may treat some sources of international law according to the monist model, and others according to the dualist one. English common law has usually taken a monist approach towards applying customary international law.[1] That is, international customs are generally considered to be part of the law of the land, and may be invoked in courts. In its 2007 decision in R v Hape, the Supreme Court of Canada confirmed that prohibitive rules of customary international law are part of domestic law, so long as they do not conflict with existing Canadian legislation.[2]

Treaties, in contrast, have traditionally been regarded through the lens of dualism.[3] As the Supreme Court of Canada held in the well-known Labour Conventions case, treaties signed by the state do not automatically become law in Canada: Canadian lawmakers must first domestically implement the treaty in question.[4]

The field is somewhat muddied, however, by the Canadian jurisprudence on application of international law. International law scholars Jutta Brunnee and Stephen Toope argue that “there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner – as relevant and perhaps persuasive, but not as determinative or, dare we say, obligatory.”[5] In other words, both types of international law – custom and treaty – seem to be “kind of, but not totally” applicable.

While treaties are not domestic law in and of themselves, judges may apply a “presumption of conformity” between domestic and international law. This means that legislation may be read so that it accords with Canada’s international treaty obligations (as far as the text of the law allows, and in the absence of express legislative intent to violate international law).[6] In Baker v Canada, Justice L’Heureux-Dube wrote for the majority: “International treaties and conventions are not part of Canadian law unless they have been implemented by statute . . . Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.”[7]

International law, particularly international human rights law, is also important in interpreting the Charter of Rights and Freedoms. In Slaight Communications Inc v Davidson, the Supreme Court held that the Charter should “generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[8] Quite simply, Charter rights should be interpreted to at least meet, if not exceed, analogous international human rights standards. In Slaight, the Court also found that Canada’s international human rights commitments are relevant in interpreting section 1 of the Charter (to determine permissible limitations on Charter rights and freedoms).

On the other hand, the Supreme Court of Canada diminished the force of international law in Suresh v Canada, which concerned deportation to the possibility of torture. The prohibition of torture is the highest level of international norm possible – “jus cogens” (also known as “peremptory”) – meaning that states must never conduct, facilitate, or condone torture. The rule against torture is absolute and universal: no exceptions are permitted. However, in Suresh the Supreme Court did not regard the international law on torture as determinative or obligatory in its own right, but merely used it as a tool for interpreting Canadian law – and found that departure from the international norm might be permissible in exceptional circumstances.[9]

To sum up: while in theory customary international law is applied according to monism, and treaties according to dualism, the situation on the ground is (unsurprisingly) somewhat messier and less consistent.

Footnotes

[1] Ronald St. J. MacDonald, “International Treaty Law and the Domestic Law of Canada” (1975); Hugh M Kindred and Phillip M Saunders et al, International Law Chiefly as Interpreted and Applied in Canada (Edward Montgomery Publications Limited, 2006) at 187.
[2] R v Hape [2007] 2 SCR 292 at para 39.
[3] Canada (AG) v. Ontario (AG) [Labour Conventions].
[4] This may be accomplished in one of several different ways: through enactment of new legislation; through amendment of old legislation to bring it into line with international law; or through retention of pre-existing laws which fulfill the state’s obligations under the treaty.
[5] Jutta Brunnee and Stephen J Toope, “A Hesitant Embrace: The Application of International Law by Canadian Courts” Canadian Yearbook of International Law (Volume 40) (2002) at 5.
[6] See, for example: Daniels v White [1968] SCR 517; National Corn Growers Assn v Canada (Import Tribunal) [1990] 2 SCR 1324; Ordon Estate v. Grail, [1998] 3 SCR 437; Canadian Foundation for Children, Youth and the Law v AG Can [2004] 1 SCR 76.
[7] Baker v Canada [1999] 2 SCR 817 at paras 69-70.
[8] Slaight Communications Inc. v. Davidson [1989] 1 SCR 1038. The Supreme Court’s decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia [2007] 2 SCR 391 similarly sets international human rights law as the “floor” of Charter protection (at para 70). However, the Court seemed to adopt a slightly different approach in Hape, released only the day before the Health Services judgement: “In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a conclusion” (at para 56). As Professor Craig Forcese points out, “under the [ . . . ] rule articulated in Hape, Charter protections would not simply benefit from a minimum content presumption, but would also be subject to any ‘ceiling’ or ‘walls’ implied by any of Canada’s international legal obligations. Similarly, any interpretive ‘floor’ previously indicated by Canada’s international human rights obligations could conceivably be lowered by reference to Canada’s international obligations of a non-human rights character.” Craig Forcese, “Supreme Court of Canada Clouds Rules Governing Role of Customary International Law in Domestic Law and Of International Law in Interpreting Canadian Charter,” 1 February 2009, online:.
[9] Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at para 60.

By |January 1st, 2015|Blog|

2014 Year in Review: Judicial Independence in Canada

By Logan St. John-Smith

Canada’s justice system was briefly in the international spotlight in 2014, when in a rare move, the International Commission of Jurists (ICJ) publicly criticised the Canadian Government for interfering with the independence of the judiciary.

This came after a group of Canadian legal academics and lawyers asked the ICJ to investigate statements made by the Prime Minister and Minister of Justice regarding the conduct of the Chief Justice surrounding the appointment of Marc Nadon to the Supreme Court of Canada.

These statements, issued shortly after the Supreme Court ruled that Justice Nadon was ineligible for appointment to the Supreme Court of Canada, accused the Chief Justice of acting inappropriately by attempting to contact the Prime Minister regarding pending appointments to the court in the spring of 2013.

This public criticism of the Chief Justice led the Federation of Law Societies of Canada to issue a public statement expressing its concern that these comments risked diminishing public confidence in Canada’s democratic institutions.

In a public letter dated July 23, the ICJ called on the Prime Minister and the Minister of Justice to apologize, claiming that their comments “amounted to an encroachment upon the independence of the judiciary and the integrity of the Chief Justice”. The ICJ also found that nothing in the Chief Justice’s actions had violated international rules.

Specifically, the ICJ expressed its view that Chief Justice McLachlin’s attempt to alert the Minister of Justice to a potential legal issue arising from the nomination of a Justice of the Federal Court did not constitute a breach of the Bangalore Principles.

The Bangalore Principles are an international code of ethical conduct for members of the judiciary that promote the independence and integrity of the judicial system.

This kind of international criticism is rarely directed at Canada, and serves as a cautious reminder of the importance of judicial independence, even in a developed democracy like ours.

By |December 15th, 2014|Blog|

Welcome to the CLAIHR Blog

Welcome to the just launched Canadian Lawyers for International Human Rights (CLAIHR) Blog. You will find the CLAIHR blog the place to go for postings on a range of topics on international human rights, including:

  • “International Human Rights Law 101” which provides a general introduction to various IHR legal topics;
  • Practice tips for lawyers involved or seeking to become more involved in advancing international human rights;
  • Case comments and other timely, topical commentary; and
  • Think pieces on Canadian IHR issues.

CLAIHR members and supporters, including lawyers, law professors and others will be contributing to the blog.

If you have ideas to pass along, or are interested in guest blogging, please get involved by emailing blogeditor@claihr.ca.

So bookmark CLAIHR, RSS us, follow us, share us, Likes us, Pin us, or just mention the new CLAIHR blog to a friend.

We are also excited that the CLAIHR Blog continues our tradition of engaging with Canadian law students who share our passion for promoting international human rights thanks to a partnership with Pro Bono Students Canada. A dedicated team of volunteer PBSC law students have helped shape the CLAIHR Blog in a myriad of ways; we are grateful to both PBSC and all of our volunteers for their contagious energy and support.

By |November 20th, 2014|Blog|