Canada misses another important UN human rights deadline, if only that was the exception and not the norm

Canada blew past an important deadline this week for reporting back to the UN with respect to recommendations made by an expert body regarding three instances of serious violations of the rights of Indigenous peoples in the country (all in British Columbia in fact): the Site C dam, Trans Mountain Pipeline Expansion and Coastal Gas Link pipeline.

It dates back to a decision rendered by the UN Committee on the Elimination of Racial Discrimination through its Urgent Action and Early Warning Procedure in December 2019, with follow up in November 2020. In essence the Committee called for construction of the dam and pipelines in all three instances to be halted “until free, prior and informed consent is obtained.”  There were other important recommendations regarding forced evictions, use of lethal force and withdrawal of police from traditional lands, as well as taking the “necessary steps to incorporate free, prior and informed consent in domestic legislation.”

Now just pause a moment and take note of the name of the procedure involved, Urgent Action and Early Warning.  The Committee describes that process as follows:

… early-warning aimed at preventing existing situations escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.

Clearly this is not routine or trivial. It is about preventing escalation of situations into conflicts and limiting serious violations of the Convention on the Elimination of All Forms of Racial Discrimination (which, notably, Canada has been a party to since 1970). A serious process surely deserves a serious response.

Canada did respond to the Committee, seven months later, in July 2020. It was by no means a meaningful response, and certainly not a convincing one. And as is patently clear, nothing was done to halt construction and engage in a genuine effort to obtain free, prior and informed consent from the West Moberly or Prophet River First Nations or the Secwepemc or Wet’suwet’en people.

In its November 2020 follow up, referring to Canada’s disappointing response, the Committee states that it “regrets [Canada] interprets the free, prior and informed consent principle as well as the duty to consult as a duty to engage in a meaningful and good faith dialogue with indigenous peoples and to guarantee a process, but not a particular result.”  With respect to the specific recommendations regarding Site C, Trans Mountain and Coastal Gas, the Committee notes that it “regrets that [Canada] has provided no information on measures taken to address the concerns raised by the Committee in its decision of 13 December 2019.”

There is nothing much the Committee is able to do by way of sanctioning Canada beyond these expressions of regret.  The Committee pointed out that Canada’s next regular report to the Committee, something that happens every four or five years, was due on November 15, 2021 and “invites” Canada to “provide updated information” at that time.  That deadline is the one that came and went this week.  No report submitted, no updated information provided.

That Canada should treat an expert UN human rights body, acting under an Urgent Action and Early Waning Procedure, with such casual disregard and evident disinterest should shock and dismay. Sadly, other than a thoughtful piece by Amanda Follett Hosgood in The Tyee, it has gone largely unnoticed and certainly has not been widely decried.  In chasing down an explanation from the federal government, Ms. Follett Hosgood was simply told that Canada’s next report to the Committee, delayed because of COVID, will be submitted in 2022.  (With a hollow reassurance from the government, however, that Canada is committed to the Convention on the Elimination of Racial Discrimination.  That leaves the question as to what Canada’s non-response would look like if we were not committed to the Convention.)

Stepping back for a moment, it bears highlighting Canada is a determined champion, firm supporter and engaged participant within the UN human rights system, in many ways.  Importantly and commendably so.

That matters a great deal. Around the world, everywhere, entrenched and protracted human rights violations continue and human rights hotspots erupt into far too many crises.  In most countries, national level human rights laws and institutions are weak and nonexistent or are simply undermined and ignored by governments, businesses, non-state groups and others regularly.  That is precisely why an international system for upholding human rights matters so very much and why so many human rights defenders, advocacy organizations, academics and governments have invested an immense amount of time and energy over the past seven decades into slowly establishing those international norms and putting in place global processes for upholding the resulting obligations.

It is a tough and often despairing road. While governments are often quick to put promising words to paper and then rush to commit themselves to those promises, they are just as quick to find ways to make sure that the efforts to hold them to those promises are as toothless as possible.

One would hope then that Canada is exemplary where it counts. Surely that should including being scrupulous when it comes to demonstrating that true human rights leadership starts by meeting your obligations and living up to your promises.  And that the best way to do so is through a stellar track road of cooperating and complying with the recommendations and interventions made by UN human rights bodies and experts when it comes to concerns within Canada.

It has to begin there after all.  Why would we expect other countries to stop the human rights violations and advance the human rights reforms called for by the UN, unless we do so ourselves.

Think again.

We have very little to be proud of when it comes to walking the global human rights walk at home.

While we have a decent (but not impressive) record of signing on to UN human rights treaties (we’re still sitting on the sidelines when it comes to enforced disappearances, migrant workers, torture prevention, and access to justice for individuals alleging violations of economic, social and cultural rights, children’s rights, and racial discrimination), this week’s example of very unconvincing follow-through with respect to the important international obligations we have assumed is, sadly, the norm and not the exception.

Why is that so, one might ask?

In general, international obligations are not treated with the gravity and seriousness they require, be that in the courts, or by any level of government in the country. We have the Charter of Rights and Freedoms, why bother with international standards? If only the Charter did indeed reliably protect the full range of universal human rights, consistently, across Canada.  As a start, it is worth remembering that the Charter’s provisions expressly exclude Canada’s economic, social and cultural rights obligations; intentionally so.

Over the decades, there have been very few political leaders who have made a determined effort to turn that around.  The disconnect between Canada’s frequent global international human rights eloquence and dismal domestic international human rights implementation has, unfortunately, not been the source of discomfort that it should for politicians.

Across the federal government, Canada’s international human rights obligations do not have a real “home”. There is no Minister of Human Rights, or even a Minister of Something Else, with Human Rights explicitly tagged on.

Not intuitively, it is the Department of Canadian Heritage that has long been entrusted with the daunting responsibility of coordinating Canada’s engagement with the international human rights system, and doing so in concert with provincial and territorial governments.  And while there have been determined officials within Canadian Heritage who have endeavoured to advance that agenda, there has yet to be a Minister of Canadian Heritage who has embraced this as a priority in any serious and sustained way.

There are a growing number of committees that bring federal, provincial and territorial governments together to talk about international human rights.  A low-level Continuing Committee of Officials on Human Rights has existed for forty years, more recently joined by a Senior Officials Committee Responsible for Human Rights. Neither of those committees are open to the public and they do not report publicly. We know very little about what they do, let alone the decisions they reach.  

In November 2020 a Forum of Ministers on Human Rights was announced which will now meet once every two years (in the past 33 years federal, provincial and territorial ministers had met to discuss international human rights matters only three times, in 1988, 2017 and 2020).  There is no information available yet as to this new Forum’s mandate and, in particular, what role it will play in making decisions about the implementation of the country’s international human rights obligations.

And there it sits.  An expert UN Committee, acting under an Early Warning and Urgent Action Procedure, engages Canada (and, indirectly, British Columbia) 23 months ago, with respect to three pressing concerns involving violations of the rights of Indigenous peoples. And the response from Canada might best be described as a yawn.

If only I was confident this will appear in some Minister’s upcoming Mandate Letter.  It should. More than anyone, the Secwepemc and Wet’suwet’en people, and people of the West Moberly and Prophet River First Nations, deserve nothing less.