Did Chief Justice McLachlin Just Send Signals About the UNDRIP?

Did Chief Justice McLachlin Send Subtle Signals on the UN Declaration on the Rights of Indigenous Peoples in Her Speech at the 2015 CIAJ Conference?

Dwight Newman, Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan; 2015-16 Visiting Fellow, Princeton University

Supreme Court of Canada Chief Justice McLachlin spoke a few hours ago at the Canadian Institute for Administration of Justice (CIAJ) conference in Saskatoon, with her comments focused on barriers to access to justice, especially cultural barriers faced by Aboriginal people.

In the course of these remarks to four hundred people, including close to two hundred judges, Chief Justice McLachlin spoke of the need for judges administering justice “to understand Indigenous history, legal traditions, and customary laws”.  She initially phrased this as if it were simply her own recommendation but then tied it to some of the recommendations of the Truth and Reconciliation Commission (TRC) around cultural competencies for lawyers.  Later in the presentation, she also referred to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which she referred to Canada having endorsed.  She seemed to suggest there was now an onus on Canada to implement article 40 of the UNDRIP.  Article 40 concerns Indigenous peoples’ rights to prompt decision through fair dispute resolution procedures and to effective remedies, with “due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights” (although Chief Justice McLachlin cut off her reading of the article before the reference to international human rights).     

The Chief Justice of Canada holds much legal power and also a great deal of soft power, and there is an interesting question of how carefully to scrutinize speeches she may make.  Although she has not referenced the UNDRIP in judgments (including in the Tsilhqot’in judgment, where her judgment studiously avoided doing so even in the face of lengthy arguments from some intervenors to do so), one could wonder whether her reference to it in speeches is a subtle indication that she accepts it as affecting Canadian law.  If she is saying Canada must implement article 40, the implication would seem to be so.  And, one would normally think the Chief Justice would be choosing her words carefully, and that implication would then seem to be the way to interpret her speech.

The alternative reading is that she made merely rhetorical references to the policy and legal instruments she mentioned.  There were other aspects to her speech that could fit with taking it as being more informal in nature, even though she read from a prepared text.  In a speech referring to the need for better understanding on Indigenous issues, she alternated at random between the terms “Aboriginal”, and “First Nations”, as if these meant the same thing.  In Canadian law, the term “First Nations” of course excludes Métis and Inuit communities who are encompassed within the broader term “Aboriginal”.  So, if one were being precise, various comments Chief Justice McLachlin made that ended up referencing ways of including First Nations and responding to their needs excluded those other communities even while she purported to be discussing Aboriginal issues generally. 

Chief Justice McLachlin’s intriguing reference to the Declaration strikes me as subtly signaling her aspirations to some significant new directions on Aboriginal issues, and something one might then see in future judgments.  However, someone could take her speech as more informal and rhetorical.  I’d be interested to know what others think on this.

Comments

[Om_Troy]

On November 12, 2010, the Federal Government of Canada opened the door to interpet the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) in a manner that fits within the Constitution of Canada. Below are excerpts of a few relevant cases but I seem to have lost the original citations; nevertheless:

Canadian courts have increasingly used international law to interpret Canadian law and have worked to ensure that Canadian law conforms to international law, see Baker v Canada (Minister of Citizenship and Immigration), (1999), 174 DLR (4th) 193 (SCC); at para 70. See also, Daniels v R, [1968] SCR 517 at 541; Schreiber v Canada (Attorney General), 2002 SCC 62 at para 50; Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313 at 349 (per Dickson CJC in dissent, though not on this point).

Para. 70 of Baker v. Canada (Minister of Citizenship and Immigration), (1999), 174 DLR (4th) 193 (SCC):

Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]

The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries: see, for example, Tavita v. Minister of Immigration, [1994] 2 N.Z.L.R. 257 (C.A.), at p. 266; Vishaka v. Rajasthan, [1997] 3 L.R.C. 361 (S.C. India), at p. 367. It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight Communications, supra; R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697.

[Om_Troy]

But alas, in this new era of walking together, the newly elected Prime Minister of Canada stated on October 15th 2015, "As a first order of business the Liberal Party of Canada in Government will implement the United Nations Declaration on Indigenous Rights" see the two minute mark at 01:95 below:

http://aptn.ca/news/2015/10/15/trudeau-a-liberal-government-would-repeal-amend-all-federal-laws-that-fail-to-respect-indigenous-rights/