Indigenous Justice Systems: Canadian Legislation for Implementing the UN Declaration

[Matt Pollard is a Senior Legal Adviser for the International Commission of Jurists (ICJ) in Geneva, Switzerland.]

The Canadian Parliament is currently considering Bill C-262, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”. The draft legislation is a “private member’s bill” introduced by an individual Member of Parliament from the opposition New Democratic Party (NDP), but the governing Liberal Party announced it supports the legislation and it is currently being reviewed by the relevant Parliamentary Committee.

The legislation, as currently drafted, does not itself specify the changes that would be necessary for Canadian law to be brought in line with the Declaration. In its three main operative provisions it:

• “affirms” the UN Declaration “as a universal international human rights instrument with application in Canadian law” (article 3);
• requires the Government of Canada, “in consultation and cooperation with indigenous peoples in Canada” to “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration (article 4);
• requires the Government of Canada to “in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of” the Declaration (article 5).

The adoption of the law would mark a significant reversal from Canada’s position a decade ago at the time of adoption of the Declaration by the UN General Assembly (resolution 61/295), when Canada was one of only four States to vote against (with Australia, New Zealand and the United States). If and when enacted, the Bill would launch a far-reaching and complex process of consultation, review and legislative amendment, which would undoubtedly include further controversies and take some years. But it is a process that is equally undoubtedly long overdue.

These developments are of particular interest to me as a (Canadian) lawyer working at the International Commission of Jurists (ICJ), an international non-governmental organization of judges and lawyers based in Geneva, where I represent the ICJ at the United Nations and lead the ICJ’s global legal and policy work on the independence and accountability of judges, lawyers and prosecutors. The ICJ is itself in the midst of a global project to research and develop legal and policy guidance about the role of traditional and customary justice systems, including indigenous justice systems.

The ICJ project is considering how traditional and customary justice systems can contribute to improving access to justice and fulfilling cultural and other rights, including for members of indigenous peoples. At the same time, the project aims to identify and help address potential conflicts between traditional and customary justice systems and international human rights and rule of law standards.

The link between the ICJ’s ongoing work and the draft legislation in Canada comes through several articles of the UN Declaration, which provide as follows (emphasis added):

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

It should also be noted that in addition to the references to international human rights in these specific provisions, the Declaration as a whole is subject to the following provision:

Article 46

…

2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. 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.

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

A number of UN human rights mechanisms and other international instruments have highlighted both the potential – or even the necessity – for States to enable and respect indigenous and other traditional and customary justice systems in order to fulfill access to justice (including under UN Sustainable Development Goal 16) and other civil, political, economic, social and cultural rights. These same sources also highlight that States must ensure that such systems do not adversely impact the enjoyment of human rights, including particularly the human rights of women and children. (The ICJ has recently published an extensive compilation of these international sources on traditional and customary justice, as well as a report based on an initial set of consultations, with additional background available here.)

Development agencies, inter-governmental organizations, NGOs, academics, and local judiciaries, legal professionals, and prosecutors in many countries are providing resources, engagement and efforts to achieve these aims, as well as to better coordinate between indigenous justice systems and the justice systems operated by State institutions. (In Canada, several projects are already underway to document, recover and re-establish indigenous legal systems: see for instance the Indigenous Law Research Unit at the University of Victoria, British Columbia. Indeed, later this year the University plans to offer, for the first time, a joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID).)

Constructive engagement by the full range of actors described above with decision-makers in traditional and customary justice systems, has been highlighted as an essential element of any approach that seeks to see such systems fulfill their positive potential, while ensuring their consistency with international human rights standards. Bill C-262 holds considerable potential to push such processes forward in Canada.

Yet, as the ICJ’s initial report notes, experience from other countries demonstrates that constructive engagement does not always immediately yield clear answers to some difficult problems, and presumably some of these may require particularly careful and creative deliberation, by indigenous and non-indigenous decision-makers alike and together, in the Canadian context as well. While recognizing the diversity between different traditional and customary justice systems around the world, and indeed the diversity that can exist within a particular country, the kinds of challenges encountered in other contexts include:

• How far should such justice systems be expected to meet international (or national) fair trial standards in terms of the selection of decision-makers, access to legal assistance, and procedural safeguards? As one example, hereditary decision-making roles are difficult to reconcile with article 10 of the UN Basic Principles on the Independence of the Judiciary (“In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status…”).
• Should such justice systems be “limited to minor civil and criminal matters”, as the Human Rights Committee has suggested is necessary to ensure conformity with the International Covenant on Civil and Political Rights? Often such systems are seen as particularly culturally relevant for matters typically covered by family law, and at the same time it is precisely such family law matters that may have particularly major impacts – positive or negative – on the rights and lives of women and children.
• Should every party to a conflict before such justice systems have the right to “opt out” in favour of the State justice system for any reason they wish, or does respect for the role and integrity of such systems mean that the laws of the State should empower such systems to enforce participation? How should State institutions react when an individual claims that he or she requires protection from a traditional system that allegedly threatens or violates his or her human rights or constitutional rights, but the traditional system and community it serves takes the position that intervention by State institutions will be inconsistent with the role and integrity of the traditional system?
• Should the jurisdiction of such systems be restricted to persons belonging to the relevant community, group, or nation, or should they have jurisdiction as well over other persons for actions in or affecting the territory?

It remains to be seen whether and to what degree similar questions will arise in the Canadian context. Experience from other countries, positive and negative, may be something decision-makers in Canada would find useful to add to their considerations. Several United Nations expert mandates (the Special Rapporteur and the Expert Mechanism on the rights of Indigenous Peoples, for example) could be important sources to consult for global and comparative perspectives. The process of adoption and implementation of Bill C-262, and the ongoing work of the Indigenous Law Research Unit and similar initiatives, will undoubtedly provide important insights and experience and solutions that may be of interest in other national contexts around the world, and will certainly help inform the ICJ’s own ongoing development of global legal and policy guidance. We will be watching developments in Ottawa, and across the country, with considerable interest from Geneva.