Corps de l’article

Ever since Canada became a member of the Organization of American States (OAS) in 1990, its regional leadership has relied considerably on a foreign policy discourse that promotes democracy and human rights values. Canada has always championed the work of the Inter-American Human Rights System (IAHRS), though its image in the eyes of civil society organizations from or working in Latin America has been tainted by the abuses committed by Canadian extractive companies operating abroad.[1] Indeed, some of the concerns related to Canada’s role in the abuses committed by Canadian mining companies in Latin America have been addressed in thematic hearings before the Inter-American Commission on Human Rights (IACHR).[2] Overall, the Canadian delegation has had a constructive dialogue with IACHR members and civil society petitioners in these hearings.[3]

Some authors[4] wonder if it would be more appropriate to call the Inter-American System the “Latin American Human Rights System” since Canada, the United States and most of the English-speaking Caribbean have not adhered to any instrument of the regional human rights system besides the Charter of the Organization of American States[5] (OAS Charter) and the American Declaration on the Rights and Duties of Man (American Declaration).[6]

Canada’s hesitation to become a full player in the IAHRS is especially contradictory. On one hand, it has championed the work of IAHRS bodies when they endured reprisals by governments dissatisfied by their decisions. On the other hand, Canadian domestic authorities are barely familiar with or rely on the IAHRS’ legal standards. This article examines how Canada could benefit from enhancing adherence to this regional human rights system and from using its standards as a parameter for improving policies regarding the rights of Indigenous peoples.

The article makes it clear that the Canadian multicultural approach has influenced several Latin American countries’ constitutional framework for addressing the relationship between the state and Indigenous peoples. The article does not delve into the question on whether or not multiculturalism was the proper model for ensuring Indigenous peoples’ rights. Several scholars have already shown that the multilateral political enterprise of the sixties and seventies was a means of cultural assimilation and one of the underlying reasons why Indigenous self-determination has not been fully recognized in Canada or elsewhere.

Far from employing a revisionist view of the side effects of the multilateral approach, this article seeks to describe a few examples of how it influenced legal standards in Latin America and in the IAHRS, and how some of these standards evolved to build a more comprehensive set of states’ obligations concerning Indigenous territorial rights and the right to Indigenous free, prior and informed consent, which the Canadian legal system has unpaired. Finally, it proposes a twin-track dialogue[7] whereby the most advanced IAHRS’ standards on the rights of Indigenous peoples could have an added value in Canadian efforts to reconcile with Indigenous peoples and to review norms and policies that are not in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[8]

I. Inter-American Human Rights System: Full adherence in Latin America, low engagement by the Caribbean, exceptionalism in Canada and the United States

References to human rights concerns in multilateral forums in the American continent have been present since the first Inter-American Conferences in the early 20th century.[9] These concerns inspired the April 1948 OAS Charter, which proclaims the fundamental rights of the individual as one of the pillars of regional integration.[10] The IAHRS was established as a by-product of the OAS, with the adoption of the American Declaration, also in April 1948.[11] It is composed of two organs, created several years later: the IACHR and the Inter-American Court of Human Rights (IACtHR), headquartered in Washington D.C. and San Jose, Costa Rica, respectively.

Established during the Fifth Meeting of Consultation of Ministers of Foreign Affairs, held in 1959 in Santiago, Chile, the IACHR is a principal institution of the OAS. It is comprised of seven members elected by the OAS General Assembly who perform their functions independently of any government. Its mandate is to promote respect for human rights in the Americas through the examination of individual complaints,[12] on-site visits, and thematic and country reports. It is also entitled to grant urgent precautionary measures and request provisional measures to the IACtHR, submit cases to this tribunal and serve the OAS as an advisory body regarding human rights.

Adopted in San Jose, Costa Rica, in 1969, the American Convention on Human Rights[13] (ACHR) is the most comprehensive Inter-American human rights instrument, containing a catalogue of 23 civil and political rights (Arts. 3 to 25) and one general clause on economic, social and cultural rights (Art. 26). The ACHR also deploys procedural and competence requirements for submitting individual complaints and creates the IACtHR, an autonomous judicial body whose purpose is to apply and interpret the ACHR.

The IACtHR is composed of seven judges elected by the states party to the ACHR. The judges perform their mandate independently of any government or state. The IACtHR is entitled to issue advisory opinions regarding the interpretation of the Convention and any other human rights instrument in the region when requested by any OAS member state or any organ listed in Chapter VIII of the OAS Charter.[14] At the IACHR’s request or by its own motion, the Court can adopt provisional measures to prevent irreparable harm to the rights of persons in serious and extremely urgent situations. The Court can judge cases referred to it by the IACHR and inter-state communications[15] that deal with countries that have ratified the ACHR and accepted the tribunal’s contentious jurisdiction.[16]

As of April 2021, 23 of 35 OAS member states had ratified the ACHR, 20 of which had accepted the IACtHR’s jurisdiction. The Convention was denounced by Trinidad and Tobago in 1999[17] and by Venezuela in 2013.[18] With the exception of Venezuela and Cuba, all Spanish-speaking countries in the region, along with Brazil, have ratified the Convention and accept the IACtHR’ jurisdiction. Grenada, Jamaica and Dominica ratified the Convention but have not yet deposited the instrument of acceptance of the IACtHR’s contentious jurisdiction. Suriname, Haiti and Barbados are the only Caribbean countries that adhere to the Convention and the court’s jurisdiction.[19] As explained in the next paragraphs, Canada and the United States share a sort of “exceptionalism” towards the IAHRS. Both countries provide diplomatic shield and financial support to the IAHRS but resist ratifying the ACHR and other Inter-American instruments.

The term “exceptionalism” is commonly used in human rights handbooks to explain a country’s tendency to criticize violations of international treaties by other nations, while its full adherence to these treaties is either pending or barred by domestic political and legal hindrances. In a broader sense, Canadian exceptionalism shares some tenets with the United States’ tendency to speak out when other countries fail to comply with their international obligations, while their governments', judicial and legislative branches reject any source of authority beyond their own Constitutions.[20] The federalist limitations and the common law traditions that occasionally collide with civil law adjudicatory standards are also elements that explain, at least in part, why these two countries have not yet ratified any Inter-American instrument besides the OAS Charter and the American Declaration.[21] It should be noted that the collision between civil and common law adjudicatory standards is sometimes overstated by those who discourage the full adherence to the IAHRS. For decades, both legal traditions have been accommodated in said countries. Quebec (Canada), Louisiana (US) and Puerto Rico (US) have civil law systems that coexist with a common law adjudicatory structure of other provinces, local states and federal legal system.

Although Canadian and American exceptionalism concur in certain respects, there are important differences in how each country has engaged with international human rights systems overall and with the IAHRS. While US diplomats tend to justify the exceptionalism of their legal system by recalling the responsiveness of American political institutions to public appeals at a local level,[22] Canadian exceptionalism is usually associated with historical contingencies and legal singularities.[23] From a historic perspective, US engagement goes back to 1948, during the adoption of the OAS Charter and the American Declaration, the founding instruments of the IAHRS. Canada is a much more recent player, as it deposited the instrument of ratification of the OAS Charter on 8 January 1990, 48 years after the organization was created. Only Guyana and Belize ratified the OAS Charter after Canada.[24]

Canada’s exceptionalism also arises from the fact that its human rights situation is less turbulent than in Latin American and Caribbean countries. It is fair to say that the Canadian judicial system is more effective than the regional average. This explains, to some degree, why the Canadian legal community does not bring complaints or employ the mechanisms of the IAHRS as often as in other countries.[25] However, there has been a greater use of certain IACHR mechanisms, especially thematic hearings, in recent years to denounce Canada’s failure to prevent and remedy abuses committed by its mining companies abroad. The IACHR has received extensive information that demonstrates that Canada provides political, legal and financial support to several mining companies involved in serious human rights violations in Latin America.[26]

On some occasions, Canada’s fierce defense of Canadian mining companies’ interests led Canada’s diplomatic stance astray. After the 2009 Honduran coup d’état, for instance, former Prime Minister Stephen Harper was one of the few global leaders who did not condemn the illegal seizure of power and the gross human rights violations committed in subsequent months. The de facto government pushed forward several legal reforms that reduced social and environmental safeguards and decreased the transparency of extractive projects, many of which were licensed to Canadian companies.[27]

Nevertheless, since its incorporation in the OAS, Canada has backed the IACHR and the IACtHR on the several occasions that they were attacked by governments displeased with their decisions. It has also made regular and voluntary contributions to these organs and is surpassed only by the United States in this regard.[28] Changes in government have not shifted Canada’s financial and diplomatic support to the IAHRS’ organs.[29] Its role as a champion of the IAHRS, however, would be even more significant had it signed and ratified the instruments that comprise the regional human rights system.[30] Unfortunately, its prime ministers have made few commitments to do so.[31]

It is noteworthy that Canada is one of the very few countries in the Americas that has never nominated a candidate to the IACHR. The US signed the American Convention during the Jimmy Carter administration in 1977, but United States Senate has never taken serious steps to ratify this treaty.[32] Even so, 10 US nationals have been elected to the IACHR, more than any other country in the continent. Candidates from Caribbean countries that have not signed the American Convention have also been appointed to the IACHR by the OAS General Assembly (Antigua and Barbuda in 2001 and Saint Lucia in 2011),[33] making Canada an even more distant player.

English-speaking Caribbean countries, the United States and Canada’s resistance to adhering to Inter-American human rights instruments is undoubtedly one of the main challenges for the effectiveness of the IAHRS.[34] Likewise, the United States and Canada’s dual role as financial champions and ratification villains is a double-edged sword frequently wielded by governments confronting IAHRS organs. For instance, from 2011 to 2013, the IACHR experienced political turmoil spurred by some head of states – notably Dilma Rousseff in Brazil, Rafael Correa in Ecuador,[35] and Evo Morales in Bolivia. The diplomatic attacks these left-wing governments made, along with specific claims from governments of all political spectrums dissatisfied with the IACHR’s decisions, pushed the institution to the brink.[36]

This environment gave rise to the creation of a working group at the OAS Permanent Council charged with making recommendations on “strengthening” the IAHRS.[37] Euphemistically called “strengthening process”, this three-year long period witnessed a sort of diplomatic catharsis against the IACHR as members voiced their disdain for any Inter-American organ deemed to be spoiled by its northern funders: the United States and Canada. Although both countries played a crucial role in downplaying the attacks against the IACHR in OAS political bodies, the governments leading the offensive made clear that its northern peers lacked the political legitimacy to speak up in defense of a system with which they did not fully engage.[38]

Although most of the IACHR’s left-wing detractors are no longer in power, OAS member states’ coordinated strikes against the IAHRS are far from over. Recent anti-globalist paranoia has shaped a recent alliance of right-wing governments in the region, resulting in constant unilateral insults (many coming from the Donald Trump White House) and occasional multilateral criticism against international human rights bodies. Although these attacks are mostly directed at UN human rights bodies, in April of 2019, the IAHRS was criticized by five South American countries then led by right-wing governments: Argentina, Brazil, Chile, Colombia, and Paraguay.[39]

In this scenario, Canada’s deeper engagement could help calm the stormy waters in which the IAHRS organs must sail. Although the election of Joe Biden as President of the United States brought calmer waters to human rights multilateralism, the rise of anti-globalist discourse on the US social and political landscape requires additional safe harbours if the tide becomes unstable again. Canada’s ratification of the ACHR and deeper commitment to the IAHRS would be certainly helpful in this regard.

Bernard Duhaime’s recent essay lists ten reasons why Canada should join the ACHR and fully participate in the IAHRS. The last of this list summarizes how timely and coherent with Canadian tradition this is:

Finally, Canada should join the American Convention because it’s the Canadian thing to do. Indeed, Canada has a rich history of being a supporter of human rights. After all, the Universal Declaration of Human Rights (UN)[40] was drafted in part by a Canadian, John Humphrey, as many Canadian human rights defenders like to recall. This being said, can a State wishing to be a universal or regional champion for human rights not join its own region’s basic human rights instruments? Asking the question is answering it: Canada should join the American Convention because it’s 2018.[41]

This article does not intend to add to the list of benefits Canada’s deeper engagement with the IAHRS would entail. Its goal is rather to share a brief account of how some legal doctrine forged under the influence of the Canadian multicultural approach either influenced or shared similar tenets with legal and political processes in Latin America in a concrete realm of the human rights agenda: Indigenous peoples’ rights. This dialogue has been a one-track so far, as the legal standards developed by Latin American countries and the states’ obligations on the rights of Indigenous peoples established by the IAHRS have not traveled the other way. This article maintains that a twin-track dialogue between Canada and the IAHRS could serve the recent efforts of the Canadian state to reconcile with its own Indigenous nations.

II. Multicultural constitutionalism and intercultural guarantees in criminal proceedings: the Canadian way and its influence in Latin America

From Canada to Chile, the Indigenous nations[42] that preceded the formation of the region’s current sovereign states have endured centuries of genocide, discrimination, and many forms of land dispossession. Different states have tried to rebuild the relationship with Indigenous communities in different ways. This section addresses two specific aspects of these efforts within Canadian legal discourse and its influence in Latin America, namely, multicultural constitutionalism as a model to accommodate ethnic differences and intercultural guarantees in criminal proceedings involving Indigenous defendants. These categories are just two examples Latin American countries have adopted.

As stated previously, this account of the multicultural influence in Latin America is purely descriptive. The multicultural approach has not been immune to criticism and has caused various institutional side effects for Indigenous peoples and national minorities in Canada,[43] Latin America,[44] and elsewhere.[45] But, rather than examining the adverse consequences of importing intellectual ventures into distinct domestic environments, this section briefly describes concrete examples of how Canada’s handling of cultural diversity influenced Latin American countries in their efforts to reshape their constitutional frameworks. Likewise, it describes a few examples of intercultural guarantees acknowledged by the Canadian Supreme Court in criminal trials involving Indigenous defendants and its influence in the adjudication of emblematic cases judged by criminal chambers and high courts in Latin America.

A. Multicultural constitutionalism

In the early 19th Century, most of those tasked with drafting the new Latin American constitutions looked to the European and US constitutional processes for advice and inspiration. Instigated by the liberal model of “one nation, one state”, the local ruling class sought to impose a single national identity on every person living under the laws of the new republics.[46] Overall, the Latin American republics limited the rights set forth in these first constitutions to a short list of individual freedoms and political rights, thus eliminating the possibility for Indigenous peoples to exercise their rights as a collective group.[47] The corollary of the liberal constitutional model was therefore the assimilation of Indigenous peoples and their conversion into citizens governed by one set of laws.[48]

In the second half of the 20th Century, the assimilationist paradigm started to be replaced in legal discourse by an integrationist one which recognized Indigenous peoples’ cultural identity. States’ policies and laws were based on two main assumptions in this new paradigm: i) Indigenous peoples tend to perish as a collective group since their social and cultural norms are unsuitable to the contemporary economic reality; and ii) governments must facilitate the integration process and ensure basic economic and social rights for Indigenous communities.[49] These assumptions prevailed not only in Latin America but also in other regions and influenced the approach of intergovernmental forums such as the International Labour Organization (ILO). Adopted in 1957, ILO Convention 107 (ILO 107) clearly endorses the integrationist approach.[50] Three decades after its adoption, the international community reviewed its content. According to the ILO, the ILO 107:

was based on the underlying assumption that the only possible future for indigenous peoples was integration into the larger society and that others should make decisions on their development. In 1986, an expert committee convened by the ILO Governing Body concluded that “the integrationist approach of the Convention was obsolete and that its application was detrimental in the modern world.” Consequently, the ILO undertook a revision of Convention No. 107 and finally adopted ILO Convention No. 169 on indigenous and tribal peoples in 1989.[51]

Moving back to Latin America, it was not until the consolidation of the so-called “multicultural debate” of the sixties and seventies that cultural identity became the point of reference in states’ relationship with Indigenous peoples. The expression “multicultural debate” is used here to describe the theoretical, legal, and political model initially implemented in the US and Canada to address each country’s cultural and ethnic diversity.[52]

This debate strengthened acceptance of multicultural societies where some questions of cultural difference were settled by recognizing national and/or ethnic minorities’ differentiated rights. This is what Young calls “differentiated citizenship”, that is, the adoption of a legal framework based on cultural, ethnic and national differences.[53] In its constitutional dimension, this debate sought to equalize the current conditions of groups who had suffered from historical disadvantages in comparison to other social groups.

Plainly speaking, multiculturalism is an Anglo-American intellectual enterprise considerably based on the Canadian[54] view of the cultural mosaic. After a wave of biculturalism as the dominant discourse aimed at calming independentist impulses in Quebec, multiculturalism started to emerge in the sixties. It was embraced as the official government policy at the end of the seventies and then as law in the Multiculturalism Act of 1988.[55] This trend triggered the rearrangement of the Canadian constitution in 1982[56] and accommodated the recognition of ethnic and cultural differences with a liberal account of democratic deliberation.

The founding father of multiculturalism in Canadian political discourse (some would say of contemporary Canada as well),[57] Prime Minister Pierre Elliot Trudeau, proclaimed it as an official governmental policy in 1971. In response to the acute threat of Quebec nationalism and in an attempt to forge a unified Canadian identity despite national and cultural differences, Trudeau looked to multiculturalism and human rights. His commitment to a Canadian unity based on individual rights convinced him to force the Constitutional Charter through Parliament.[58]

The Constitution Act of 1982 addresses a broad range of issues related to the cultural differences of Canada’s ethnic and Indigenous groups, including

the relationship between English and French Canada; federalism more generally, including the status of Quebec; language rights; the status of Aboriginal peoples; Canada’s immigration and integration strategies; constitutional guarantees for religious schools; affirmative action; and a general guarantee of equal protection to men and women all tell a complex story of diversity, embracing First Nations, settler communities, and new immigrants, and consolidated through a long and incremental period of constitution building.[59]

Inspired by the Canadian example, several Latin American countries in the eighties and nineties abandoned an integrationist paradigm and redefined their respective societies as multicultural[60] or pluricultural.[61] Guatemala (1985), Nicaragua (1987), Brazil (1988), Colombia (1991), Paraguay (1992), and Peru (1993) enacted new constitutions that incorporated aspects of the multicultural model. Other countries such as Mexico (1992), Argentina (1994) and, more recently, Costa Rica (2015) followed a similar path through constitutional reforms. Ecuador and Bolivia went even further in their embrace of multicultural constitutionalism. Adopted in 2008 and 2009, respectively, their new constitutions define the two states, and not the societies coexisting under the same legal system, as plurinational. [62] For some scholars, the Ecuadorian and Bolivian processes inaugurated a new paradigm –plurinational constitutionalism– in the relationship between states and Indigenous peoples.[63]

It should be noted that the period in which most Latin American countries redefined their societies as multicultural (eighties and nineties) is also the period when Canada expanded its relations with the region, especially in Central America. During Prime Minister Brian Mulroney’s term (1984-1993), Canada became increasingly involved in the Central American crises, mainly supporting transitions to democracy, mediation, peacekeeping and peacebuilding.[64]

In general terms, Canada and the Latin American countries that embrace multicultural constitutionalism share the promotion of legal pluralism, for example, the acknowledgment of some degree of self-government for Indigenous peoples, such as the right to choose local authorities through autonomous electoral procedures (especially in Mexico and Guatemala); and the promotion of Indigenous languages and intercultural education systems.[65] But one particular legal tool that fits squarely in the multicultural approach has developed with Latin American influence rather than Canadian: the right to free, prior and informed consultation and consent (FPIC).

Conceived as a intercultural dialogue between the state and Indigenous peoples, FPIC is the result of decades of Indigenous organizing that bore fruit with the adoption of ILO Convention 169 on Indigenous and Tribal Peoples in June 1989 (ILO 169).[66] This treaty formalizes the international commitment to preserve Indigenous cultures and recognizes their power to autonomously make decisions about their development priorities and participate directly in any state decisions that affect them.[67] FPIC and other states’ obligations established in ILO 169 have been amplified by a long list of decisions taken by the IAHRS organs,[68] some of which will be discussed in Section 3, below.

14 of the 23 countries that ratified ILO 169 are Latin American.[69] The constitutions of Venezuela (1999), Ecuador (2008) and Bolivia (2009) contain specific provisions on FPIC. In most Latin American countries, courts have acknowledged FPIC as a component of other constitutional rights, such the right to collective property, participation, autonomy and self-determination.[70] Regardless of how FPIC has been protected, it is understood as a corollary of any multicultural constitutional framework in the region.

The content of states’ obligations concerning FPIC has been expanded by supranational human rights bodies and several countries’ high courts. Despite these developments, prior consultation processes have often meant the “proceduralization” of territorial dispossession to the detriment of Indigenous peoples’ self-determination and autonomous governance of their territories. Indigenous communities often participate in consultation processes without a real capacity to change governmental decisions that affect them. In this sense, overreliance on FPIC and on other normative institutions embedded with the multicultural approach has compromised Indigenous emancipation from cultural and legal domination.[71]

Regardless of its shortcomings, FPIC has played a fundamental role in overcoming the integrationist paradigm, the focus of ILO 107. On many occasions, it is the most important or even the sonly tool available to Indigenous communities to prevent or mitigate the misappropriation of their lands and natural resources.[72]

Although the Canadian Supreme Court (CSC) has a vast jurisprudence acknowledging the duty to consult,[73] Latin American courts and the organs of the IAHRS are the sources of the most comprehensive legal standards worldwide. The region is a sort of FPIC wonderland, at least in legal discourse and despite the lack of effectiveness in ensuring Indigenous peoples’ self-determination. Paradoxically, while this status may have never been obtained without the influence of the multicultural debate, Canada has not signed ILO 169 and objected to the approval of UNDRIP when it was being discussed by the UN General Assembly.[74] Adopted in 2007, UNDRIP is the second most important international document regarding Indigenous peoples’ rights after ILO 169.

In 2010, the Harper administration revised Canada’s objection to UNDRIP, but raised several caveats. These were ultimately lifted by Justin Trudeau in May 2016. In 2017, Trudeau’s cabinet issued a statement titled “Principles respecting the Government of Canada’s relationship with Indigenous Peoples”.[75] This statement highlighted the government’s commitment to implementing UNDRIP “through the review of laws and policies, as well as other collaborative initiatives and actions”.[76] Proposed as a way to fulfill its commitments, Bill C-262 was approved in the House of Commons in 2016 but ultimately did not pass into law, mostly due to the opposition’s delaying tactics in the Senate.[77] The liberal government introduced Bill C-15, which is based to a large extent on Bill C-262, in Parliament in December 2020.[78]

In 2016, the OAS General Assembly followed the UN’s lead and approved the American Declaration on the Rights of Indigenous Peoples.[79] Canada did not “take a position” on the declaration, adding another unfortunate chapter to its failure to adhere to the Inter-American human rights normative regime.[80] Indeed, it is another chapter in the long story of Canadian exceptionalism and discredits Canada’s image as sponsor of human rights and multilateralism. The tense relationship with the UN bodies tasked with reviewing the integrationist approach embedded in the ILO 107, and the constant objection/abstention to endorsing international commitments on the rights of Indigenous peoples, are one of the most distinctive feature of this story.[81] In this regard, Thompson underscores that the “activities of the Working Group on Indigenous Populations had revealed a side of Canada at odds with its reputation as a defender of both human rights and the UN human rights system.”[82]

B. Intercultural guarantees in criminal proceedings

This section focuses on two concrete legal standards the CSC developed to address interactions between the Canadian criminal justice system and Indigenous peoples. These standards were created in part as a response to the over-representation of Indigenous peoples in the Canadian correctional system,[83] but are also an expression of the legal pluralism at the heart of the multicultural approach.

In general terms, “legal pluralism refers to the idea that in any one geographical space defined by the conventional boundaries of a nation state, there is more than one law or legal system.”[84] This concept also concerns the recognition of Indigenous peoples’ own legal systems and the existence of differentiated rules for judicial authorities’ interpretation of applicable norms.[85]

Indigenous languages do not carry the status of official languages in Canada. Nevertheless, the access to an interpreter is a constitutionally protected right enshrined in Section 14 of the Canadian Charter of Rights and Freedoms.[86] In R. v. Tran (1994), the CSC concluded that an interpreter must be appointed when one or both of the following conditions are met:

1) it is clear to the judge that the defendant is having difficulty expressing him or herself or understanding the proceedings due to language barriers and 2) the defendant requests an interpreter and the judge deems it to be justified.[87] Pursuant to this judgment, the right to interpretation must be ensured from the first stages of the proceedings and meet a basic standard of “continuity, precision, impartiality, competency and contemporaneousness”.[88]

In R. v. Denny (2014), the accused brought a motion for the services of a Mi’kmaq interpreter. Based on affidavit evidence, the Supreme Court of Nova Scotia was satisfied that the defendant needed an interpreter to have a trial where he could understand and be understood “at the level that a person who would be fully conversant in English.”[89] In R. v. Cheba (1993), the trial judge declared a mistrial because of lack of interpretation services for the defendant, a native Chippewan speaker.[90] Though he did not claim an infringement of his Charter rights, the judicial authority noticed that the accused was unable to understand the proceedings. The court stated that the “fairness” of the trial called for judicial intervention and ordered a new trial.

In addition to the right to an interpreter, the Canadian legal system and case law protect other aspects of fair trial guarantees in criminal proceedings involving Indigenous peoples. One of these guarantees was developed through the interpretation of Section 718.2(e) of the Canadian Criminal Code, which reads as follows:

A court that imposes a sentence shall also take into consideration the following principles:

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.[91]

Since R. v. Gladue (1999), the CSC has developed interpretative rules on the meaning of “take into consideration.” This requires examining:

a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.  In order to undertake these considerations, the sentencing judge will require information pertaining to the accused.  Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.  In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the systemic or background factors and the appropriate sentencing procedures and sanctions, which in turn may come from representations of the relevant aboriginal community.[92]

In more recent cases, the CSC pointed out lower courts’ obligation to “take into consideration” an Indigenous defendant’s “circumstances” in assessing the unlawfulness of his or her conduct. In R. v. Ipeelee (2012), the CSC instructed Canadian courts to abandon the presumption that all Indigenous persons and communities share the same cultural values and worldviews and required that “a reasonable justification based on defendant’s particular circumstances” be taken into account.[93]

ILO 169,[94] UNDRIP,[95] and the UN Convention on the Rights of the Children[96] also acknowledge Indigenous peoples’ right to an interpreter and to express themselves in their own language in judicial proceedings. The rules deployed by these instruments and the standards established by Canadian case law mentioned above share several aspects. In Latin America, the acknowledgment of the right to an interpreter coincided with or was reaffirmed by the production of norms following the adoption of multicultural constitutions. Most of the criminal proceeding codes adopted or amended thereafter echoed institutions inherent to the multicultural constitutional model, such as legal pluralism and the promotion of Indigenous languages in the region.

The rise of legal pluralism and certain judicial guarantees applicable to Indigenous peoples is a by product of the multiculturalist enterprise that goes beyond the Canadian experience. To be sure, this very experience and its impact in the Canadian legal system can be rooted in a broader trend that has also influenced the way other nations and intergovernmental bodies have addressed the relation between the state and Indigenous peoples. However, the concrete standards developed in Gladue and similar cases have had a direct influence in emblematic trials involving Indigenous peoples in Latin America.

In the most emblematic of these cases in Peru, for instance, the Transitional Criminal Chamber of Bagua (Sala Penal Liquidadora Transitoria de Bagua) conducted a trial related to the violent events that took place in the Devils Curve of a highway near the Amazonian city of Bagua on 5 June 2009. Thousands of Indigenous people had peacefully blocked the highway amid a nationwide strike in opposition to the United States and Peru Free Trade Agreement and the environmental impact it would have on their traditional lands. An ill-conducted police operation aimed at breaking up the blockade pushed some demonstrators to respond violently.[97]

The clash between the Peruvian National Police and Indigenous peoples at the Devils Curve sparked several other violent events in the surrounding areas, resulting in the death of 24 police officers and 10 Indigenous civilians. The “Baguazo” is the most violent conflict Peru has experienced since the end of its internal armed conflict in the late nineties.[98] These events gave rise to six criminal probes, but so far the Devils Curve case is the only that has been heard by a District Court. The case reached the Peruvian Supreme Court in 2018. 53 people faced charges, 23 of whom belong to the awajún-wampis Indigenous groups. They were charged with both serious offenses, such as first-degree homicide and organized criminal activity, and minor crimes, such as unlawful blocking public thoroughfares and property damage.[99]

On 22 September 2016, the Criminal Chamber of Bagua acquitted all 53 defendants of the most serious charges due to a lack of sufficient evidence.[100] As for blocking highways and damaging public and private property, the chamber concluded that the defendants charged with these crimes had acted with the higher purpose of defending their traditional territories.[101] The judgment cites entire excerpts of the Gladue ruling and undertakes an intercultural interpretation of applicable Peruvian laws. It also relies on anthropological affidavits and expert witness evidence regarding defendants’ understanding of the illegality of their actions vis-a-vis cultural norms and historical background.

The Criminal Chamber of Bagua concluded that, though the evidence in the case was enough to conclude beyond a reasonable doubt that the accused had burned down public and private property in the hours after the police raid, these actions could not be separated from the historical relationship between the awajún-wampis and the different groups that have tried to settle their territories, including Quechua tribes, Spanish envoys and the Peruvian state. Finally, the Chamber expressly quoted the Gladue principles to exempt the Indigenous defendants of criminal liability.[102]

Other criminal courts in Latin America have either employed the Gladue principles or adopted very similar reasoning while assessing the liability and sentencing Indigenous defendants. A study of the UN Mechanism on the Rights of Indigenous Peoples named “Access to justice in the promotion and protection of the rights of Indigenous peoples” mentions the Peruvian Criminal Code and the “Gladue sentencing principles” as examples of initiatives that are in line with the guarantees set forth in ILO 169 and that provide that Indigenous peoples “economic, social and cultural characteristics should be considered, and preference should be given to methods of rehabilitation other than prison.”[103]

III. Indigenous peoples’ rights over their ancestral territories: the IAHRS way and its relevance for Canada

Although Canada has neither signed the ACHR nor any other Inter-American human rights instruments, it is subject to the IACHR’s jurisdiction for complaints alleging violations of the American Declaration. This instrument mirrors the OAS Charter and applies to all member States. Both organs of the IAHRS have affirmed the binding nature of the American Declaration.[104] Pursuant to Article 18 of its Statute, the IACHR has confirmed its competence to monitor the human rights situation in Canada.[105] Therefore, the IAHRS standards on Indigenous peoples’ territorial rights described in the next section applies to Canada irrespective of whether domestic courts, Parliament or the federal government take them into consideration.

A. IAHRS standards on Indigenous peoples’ territorial rights

The IACHR has highlighted the close relationship between Indigenous peoples’ cultural identity and the enjoyment of their traditional territories.[106] This relation “extends beyond the settlement of specific villages to include lands that are used for agriculture, hunting, fishing, gathering, transportation, cultural and other purposes.”[107] In a 1985 Merits report regarding the lack of demarcation of Yanomami territory in Brazil, the IACHR took note of Article 27 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Canada in 1976.[108] The Commission recalled that this ICCPR provision “recognizes the right of ethnic groups to special protection on their use of their own language, for the practice of their own religion, and, in general, for all those characteristics necessary for the preservation of their cultural identity.”[109]

Likewise, the IACtHR has asserted that, for Indigenous peoples, “the possession of their traditional territory is indelibly recorded in their historical memory, and their relationship with the land is such that severing that tie entails the certain risk of an irreparable ethnic and cultural loss, with the ensuing loss of diversity.”[110] Both organs of the IAHRS have affirmed that Indigenous territories are protected by Article 21 of the ACHR; for states not party to the ACHR, they are protected by Article 23 of the American Declaration. Though their text mentions only private property, IAHRS institutions have stressed that “both the private property of individuals and communal property of the indigenous communities are protected under Article 21 of the American Convention”[111] and Article 23 of the American Declaration.[112]

According to Inter-American standards, Indigenous territorial rights derive from customary land tenure, rather than formal recognition.[113] In this sense, although states have an obligation to title and demarcate traditional territory to secure its use and enjoyment by Indigenous and tribal communities,[114] the exercise of property rights is not conditional on any formal recognition.[115]

The organs of the IAHRS have ruled that Article 21 of the ACHR was violated when third parties were authorized to develop economic activities in Indigenous territory and when the exercise of property rights was conditional on a title of ownership.[116] In these situations, the IACtHR ordered states to restore Indigenous possession over their traditional territory and to secure their right to property by means of a title or other formal recognition.[117]

When an Indigenous people’s property claims collide with private property acquired in good faith, the IACtHR has evaluated whether the restriction imposed by a given state meets the criteria of a balancing or proportionality test. While performing this test, the IACtHR has found that restricting private property may be necessary to achieve the legitimate aim of preserving an Indigenous communities’ cultural identity. Likewise, it has affirmed that the proportionality of restriction on private property can be attained by compensating the affected party.[118]

In addition to the requirements commonly applied in restrictions on individual property (legality, necessity, suitability, and proportionality), Inter-American standards dictate that the restrictions derived from the concession of economic activities in Indigenous territory shall not endanger the community’s cultural integrity or subsistence as an organized group.[119] To achieve this aim, states must conduct a free, prior and informed consultation in good faith, with the goal of obtaining the community’s consent.

In line with Article 16(4) of ILO 169, the IACtHR has pointed out that when a state dully justifies the impossibility of restoring an Indigenous community’s traditional territory, it has the obligation to compensate the community with lands equivalent in extension and quality. Furthermore, restoration must be performed with the approval of the peoples involved and “in accordance with their own mechanism of consultation, values, customs and customary law”.[120]

The main aspects of the special safeguards of Indigenous territorial rights under the IAHRS’s standards can be summarized as follows:

i) Traditional tenure of a territory has the same effect as title

ii) Traditional tenure entitles the Indigenous community to request official recognition and title over the land.

iii) The members of Indigenous communities involuntarily displaced from their traditional land do not lose their property rights.

iv) The acquisition of traditional land by third parties in good faith does not eliminate states’ obligation to restore that land to the members of the Indigenous community.

v) When the impossibility of restoring traditional land is justified, the Indigenous community has the right to obtain territory of a similar size and quality or choose another form of compensation.

The IACHR systematized these standards in the 2009 report, “Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources –Norms and Jurisprudence of the Inter-American Human Rights System”.[121] States’ obligations described in this report derive both from the American Convention and Declaration, and so also apply to Canada. The following paragraphs comment on some aspects of Canadian jurisprudence that depart from the Inter-American standards previously mentioned.

B. Canada’s legal framework for Indigenous peoples’ territorial rights

As a preliminary note, it is important to stress that in the Canadian legal system the term “Indigenous title” refers to the formal act of recognition of Indigenous land through a treaty between the community and the Crown or any other official act recognizing Indigenous possession of traditional land. On the other hand, the term “title” can also mean the territorial right sought by Indigenous peoples who have not yet signed a treaty or obtained a formal act of recognition from the Canadian state. In the IAHRS, “title” refers only to the formal act of recognition in an official document issued by the state.

The CSC has established different evidentiary rules that must be met to discharge (the government) or demonstrate (the Indigenous plaintiff) the existence of a “valid title”, i.e., the official act of recognition or the customary tenure related to the ancestral nature of the land in dispute. Over time, the CSC has increasingly laid the burden of proof of title on the Crown or Canadian government.[122] Even so, the highly procedural and lengthy nature of Indigenous title litigation presents insurmountable barriers for many communities with unproven title. In one of the most important Indigenous land claims ever decided by the CSC, the Tsilhqot’in Nation spent CAN$40 million over 25 years of litigation.[123]

In Delgamuukw v. British Columbia (1997), the CSC concluded that Crown sovereignty over contested land can be assumed until the Indigenous plaintiff proves their historical link to the territory in question.[124] This position shifted in Tsilhqot’in Nation (2014). In this case, the CSC recognized the validity of Indigenous title not only to the land where they carry out their traditional activities intensively, but also to those portions of the land where the plaintiff carried out economic activities. In brief, the Supreme Court dismissed British Columbia’s contention that these portions do not fall under Indigenous title. This judgment acknowledges an Indigenous nation’s right to decide how to use its lands either for traditional activities or modern economic purposes. The CSC stressed nonetheless that this discretion shall not be exercized in such a way that the Tsilhqot’in Nation’s economic activities deprive future generations of the land’s benefit.[125]

Although the Tsilhqot’in Nation case develops evidentiary rules less restrictive for Indigenous claimants than previous jurisprudence, the case raises a controversial tier system that lays out federal and provincial obligations to consult and obtain consent. To this effect, the CSC stated that:

Where Aboriginal title is unproven, the Crown owes a procedural duty imposed by the honour of the Crown to consult and, if appropriate, accommodate the unproven Aboriginal interest. […] By contrast, where title has been established, governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government must establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.[126]

This paragraph falls short of both UNDRIP and Inter-American standards. The IACtHR’s judgment in Saramaka v. Surinam (2007) states that, with respect to large-scale projects, not only is consultation mandatory, consent is as well.[127] In its 2015 report “Indigenous Peoples, Afro-Descendent Communities, and Natural Resources”, the IACHR echoed Saramaka’s standard and provided more precise guidelines on the meaning of “large-scale” with regard to the magnitude of the project (objective data on volume and intensity) and its human and social impact.[128]

The possibility of overlooking Indigenous peoples’ objections also clashes with Inter-American standards that characterize consent as a right to self-government, especially with regards to states’ decisions that potentially affect their territory. Once again, whereas the goal of any consultation process is obtaining the community’s consent, when the consent is a mandatory obligation, the states party to the IAHRS must accept the decision expressed by the Indigenous community.

As the Canadian government has acknowledged, the CSC’s criteria for the intensity of the FPIC obligation is not in line with international human rights standards. The Department of Justice’s “Principles respecting the Government of Canada's relationship with Indigenous peoples”, updated in February 2018, concedes that “the importance of free, prior, and informed consent, as identified in [UNDRIP], extends beyond title lands.”[129] In this regard, every single FPIC contentious case decided by the Inter-American Court and Commission were related to Indigenous or tribal peoples who either lacked official recognition of their land or had it rejected by the authorities of their respective states. The case law developed by these organs entail the same states’ obligations towards Indigenous peoples who hold or lack a valid title over their lands (i.e., officially recognized property rights).

Finally, the scope of Indigenous peoples’ territorial rights set forth in the IAHRS are more comprehensive than the legal parameters currently established in the Canadian legal system, particularly the ones contained in the Tsilhqot’in Nation precedent, with regards to the obligation to consult communities holding unproven title. In this sense, Canada could, by taking IAHRS case law into account, rely on improved parameters in its efforts to review its own legal framework and better ensure the collective rights of Indigenous nations.

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This article seeks to highlight the importance of a twin-track dialogue between Canada and the IAHRS with regards to the rights of Indigenous peoples. Canada has been vocal in this dialogue in the past, and many Latin American countries listened while reshaping their constitutional framework to recognize cultural diversity.

Influenced by the Canadian politics of recognition, the boom in Latin American multicultural constitutions was followed by extensive jurisprudence –by high courts and the organs of the IAHRS– related to the right to free, prior and informed consultation and consent (FPIC). Inspired by the Canadian constitutional experience, many Latin American countries developed their own account of how to address Indigenous peoples’ demands. The IAHRS’s organs have been pivotal in this regard, and their rulings are the most advanced in the world on areas such as Indigenous peoples’ rights over their territories and FPIC.

Canada should take advantage of what the IAHRS has to say in these matters and build up better legal solutions in its efforts to reconcile with Indigenous nations. Such a gesture would be a meaningful way of engaging with the Inter-American system and, at the same time, fill in some gaps in the Canadian Supreme Court’s recent decisions that curtail the scope of FPIC. The embrace of Inter-American standards would also represent an act of gratitude towards the human rights system and the several Latin American countries that, influenced by Canadian multicultural experience, shaped their own legal institutions and states’ obligations related to Indigenous peoples’ rights over the past three decades.

By becoming a full player of the IAHRS, Canada could improve its legal community, lawyers and state officials’ knowledge of Latin America and the IAHRS’ own experience regarding the rights of Indigenous peoples. This would be particularly useful for a country struggling to reconcile with its own Indigenous nations and trying to review aspects of its legal framework that are not in line with the United Nations Declaration on the Rights of Indigenous Peoples.