Corps de l’article

Historically, Canada has acted as a human rights champion on the international scene,[1] has spearheaded many promising initiatives, and encouraged other States to adopt policies to better comply with international standards. However, United Nations bodies have frequently addressed complaints regarding Canada for allegedly violating human rights treaties to which it is a party.[2] These relate to a series of recurring issues. For instance, in 2017, the Human Rights Implementation Project found that “the most frequent topics […] are those related to rights of Indigenous (Aboriginal) persons and/or peoples, removal (deportation, extradition) from Canada, and discrimination based on various grounds (sex, language, religion, etc.).”[3] Petitions made to the Organization of American States (OAS) reflect a similar trend. Five of the six petitions alleging a violation of rights protected in the American Declaration of the Rights and Duties of Man that the OAS has deemed admissible relate to the rights of Indigenous peoples or individuals facing deportation.[4]

The Canadian State has responded to some of these concerns regarding human rights violations, though not necessarily as a result of pressure from international bodies. For example, a number of commissions have been created to learn more about situations where human rights had allegedly been violated, including the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Arbour Commission), the Royal Commission on Aboriginal Peoples (RCAP/Commission Erasmus Dussault), the Truth and Reconciliation Commission of Canada (TRC), and the National Inquiry into Missing and Murdered Indigenous Women and Girls.[5] After the publication of each of the Commissions’ final reports, the State has committed to fulfilling at least some of the recommendations made to address the violations documented. Most notably, Prime Minister Justin Trudeau committed to fulfilling all 94 of the TRC’s Calls to Action.[6]

Conversations[7] with civil society organizations, however, reveal important problems with governmental commitment to improving the human rights situation in Canada, especially for persons and groups placed in situations of vulnerability, such as Indigenous women. A few examples will suffice. At a basic level, civil society groups deplore the lack of centralized human rights mechanisms such as a human rights ombudsman. On a related note, some describe a tendency on the part of the federal government to resort to the jurisdictional confusion that results from the division of powers to avoid taking action on certain issues or ratifying certain human rights instruments by claiming that such matters are the responsibility of the provinces, not the federal government.

Yet even when Canada does ratify human rights treaties, civil society actors declare that Canada simply does not fully implement the recommendations that the bodies created by these treaties make. Others denounce a similar lack of political will domestically, for example when the Canadian Human Rights Tribunal issues a non-compliance order against the government. Regarding the TRC’s Calls to Action more specifically, the Yellowhead Institute concluded that “Canada is failing residential school Survivors and their families,” having only fulfilled eight of the 94 Calls to Action. Significantly, this was one Call to Action less than in 2019.[8]

In addition to inaction, some civil rights groups have alleged that previous Canadian authorities have sometimes taken action against these groups, including via financial reprisals and surveillance. Reprisals can be direct or indirect, as when the government cancels an organization’s status as a not-for-profit, thereby limiting its capacity to receive certain forms of funding.

Though some Canadian civil society organizations have concerns regarding the lack of will on the part of the Canadian government to work toward fully respecting human rights, it must be said that they are not using all the tools at their disposal to address these concerns. Notably, many Canadian civil society organizations do not to take advantage of international human rights mechanisms, preferring instead to focus on Canadian common and civil law and the Canadian Charter of Rights and Freedoms. Civil society groups recognize this, and refer to a range of factors as to why this is the case, including the cost and the perceived lack of efficiency of these mechanisms. At the same time, many actors are quick to admit that international processes are not well known in Canada, but that they could be a useful additional tool to use to protect human rights.

S’ouvrir aux Amériques (SOAA) is an academic research project rooted in a deep belief in and commitment to South-to-North knowledge transfer. Project members are convinced that Canadian civil society organizations can learn a great deal from Latin American human rights organizations’ experience promoting respect for human rights and these organizations’ far more extensive interactions with international human rights mechanisms. Since many of the Hemisphere’s human rights organizations were founded in the context of dictatorship or state repression and then gathered strength during democratic transitions, and since the Canadian government frames its approach to Indigenous peoples as reconciliatory, these organizations’ experiences with transitional mechanisms are of particular interest.

With the financial support of the Pierre Elliott Trudeau Foundation, S’ouvrir aux Amériques organized a series of roundtable discussions and individual interviews with human rights activists, Indigenous leaders, and academics throughout Canada, including in Montréal, Toronto, and Vancouver, to better understand the challenges human rights organizations and First Nations groups face in terms of protecting human rights in Canada. Project members identified four main themes that emerged from these discussions: access to justice; territorial rights and Indigenous peoples; constitutions, federalisms, and institutions; and transitional justice and reconciliation.

The first theme relates to the obstacles that exist in accessing, let alone obtaining, justice. This theme emerged from participants’ repeated comments that seeking justice for human rights abuses is often one of the victims and their family members’ most insistent demands.

The second theme that SOAA team members identified is territorial rights and Indigenous peoples. The right of Indigenous peoples to be consulted is enshrined in International Labour Organization Convention No. 169 (ILO 169)[9], which has been approved by many countries in Latin America and around the world, as well as in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)[10]. Both require consultations with First Nations before projects that affect them or their lands can be undertaken. ILO 169 has not been ratified by Canada but the obligation to hold consultations is enshrined in domestic law[11] and is a key principle of UNDRIP[12]. However, consultations are sometimes not properly undertaken or the results are ignored. The theme of territorial rights and Indigenous peoples thus relates to these consultations and the role that they play, or fail to play, in a particular State’s development policies.

The third theme identified, constitutions, federalisms, and institutions, refers to how some actors have used domestic and international judicial and political systems to advance human rights within their borders. Societies that engage with the legacy of human rights violations often also embark on a process of enacting a series of deep reforms. These frequently include amendments to the constitution, the elimination of laws now deemed out of step with reality, or the creation of institutions to monitor human rights.

The final theme identified was transitional justice and reconciliation. Latin America emerged as a leader in innovating the package of mechanisms that came to be the core of what scholars worldwide now term transitional justice.[13] With reconciliation as one of several end goals, embracing transitional justice mechanisms has become almost essential in societies transitioning away from conflict or dictatorship to some version of democracy, and even in some like Canada that have long been electoral democracies. Questions, therefore, arise as to the mechanisms that are understood as key to fostering reconciliation, the idea of reconciliation itself, and the link between the two that many assume exists.

Having identified these themes, SOAA project members invited individuals directly involved in human rights struggles in Latin America and experts in these four areas to attend an international colloquium in Montréal in October 2019. After an opening welcome by Pascale Fournier, President of the Pierre Elliott Trudeau Foundation, and Hugo Cyr, Dean of the Faculty of Law at the University of Quebec in Montréal, Commissioner Margarette May Macaulay of the Inter-American Commission on Human Rights spoke on Commission’s work and relationship with Canada. Rachel Hatcher (SOAA, Canada), Juan Pablo Albán Alencastro (Universidad San Francisco de Quito, Ecuador), and Fernanda Brandão Lapa (Instituto de Desenvolvimento e Direitos Humanos, Brazil) spoke about the question of access to justice. Anexa Brendalee Alfred Cunningham (Mizkitu, Nicaragua), a lawyer and Indigenous rights and politics expert, and Juan Segundo Pichún Collonao, lonko (leader) of Lof Temulemu (Wallmapu, Chile), addressed the issue of territorial rights and Indigenous peoples. Viviana Krsticevic (Center for Justice and International Law, USA/Argentina), José Antonio Guevara Bermúdez (Comisión mexicana de defensa y promoción de los derechos humanos, Mexico), and Daniel Lopes Cerqueira (Due Process of Law Foundation, USA/Brazil) offered insights on the theme of constitutions, federalisms, and institutions. Sol Ana Hourcade (Centro de Estudios Legales y Sociales, Argentina), Luz Marina Monzón Cifuentes (Unidad de Búsqueda de Personas dadas por Desaparecidas, Colombia), Cynthia Milton (Université de Montréal, Canada), and Juan Méndez (American University, USA) discussed issues related to reconciliation and transitional justice.

Participants presented their experiences and insights, which are published in modified form[14] in this special issue. Contributions have been thematically reorganized (transitional justice and reconciliation, territorial rights and Indigenous peoples, access to justice, and Canada and the IAHRS) to reflect the final content of each text. This issue also includes three additional texts (Bernard Duhaime [SOAA/UQAM, Canada], Nancy Tapias [SOAA/UQAM, Canada], Sara Gold [SOAA/McGill University, Canada]) that were not presented at the colloquium but that are essential complements to the other texts published here and are indispensable to the larger project.

The first section of this collection of conference papers addresses the entangled issues of transitional justice and reconciliation. Juan Méndez offers an overview of the origins and development of what we now call transitional justice and speaks to many of the themes highlighted in other contributions to this volume. He explores social and legal processes in particular, and underscores just how interconnected these are in always precarious transitions from dictatorship or conflict to democracy. Méndez cautions against a reconciliation imposed from above yet remains optimistic about always evolving transitional justice processes, especially in relation to demands for memory.

Luz Marina Monzón Cifuentes, director of Colombia’s Unidad de Búsqueda de Personas dadas por Desaparecidas (UBPD), and Simon Pierre Boulanger-Martel draw on the framework of transitional justice that Méndez presented, to address Colombia’s search for peace after five decades of war. Monzón Cifuentes and Boulanger-Martel discuss the role the UBPD, created by the Peace Accords as part of the Sistema Integral de Verdad, Justicia, Reparación y No Repetición, plays in peacebuilding. The UBPD is the first official institution in Colombia tasked with both clarifying what has happened and actually searching for the over 80,000 Colombians registered as disappeared (1958-2017). Thus, the authors describe the creation of the UBPD as an important recognition of the State’s inability to address these issues. Indeed, the State did not recognize enforced disappearance as a distinct crime until 2000. Monzón Cifuentes and Boulanger-Martel demonstrate that this focus on clarifying what had happened to the disappeared, a key component in transitional justice processes, is essential in reconciliation and peace-building.

José Antonio Guevara Bermúdez continues this discussion of transitional justice and offers a grim account of past and present human rights violations in Mexico and the different contexts in which these have been committed. Based on the characteristics of the various State and non-State actors involved and the nature of their operations, he describes the post-2006 context of violence as a non-international armed conflict. Guevara Bermúdez affirms that, given the existence of an armed conflict, it is possible to describe the actions of both State and non-State actors as crimes against humanity and war crimes. This description, he says, opens up the possibility for the adoption of transitional justice policies based on the need for truth, justice, and reparations. Human rights organizations are critical of previous transitional justice mechanisms adopted, such as the truth commission created during the Vicente Fox administration, and are wary of those President Andrés Manuel López Obrador promised in 2108. Yet these organizations are not concerned with the mechanisms themselves; rather, they are concerned with the State institutions responsible for these mechanisms. Thus, Guevara Bermúdez proposes that respecting human rights in Mexico requires the adoption of transitional justice mechanisms based on truth, justice, reparations and guarantees of non-repetition, as well as on a reformed State apparatus.

The second section on territorial rights and Indigenous peoples includes three rich articles on struggles in Nicaragua, Chile, and Honduras. Mizkitu attorney Anexa Brendalee Alfred Cunningham analyzes the Inter-American Court of Human Rights’ emblematic ruling in Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001)[15]. The case revolves around the Nicaraguan State’s decision to grant lumber companies concessions for exploitation on the community’s ancestral land, thereby failing to recognize protected ancestral property rights. Alfred Cunningham traces domestic developments since the 2001 ruling, discussing the successes and failures of Law 445 in terms of recognizing Indigenous, Afrodescendent, and communal property rights. Though she is critical of the Court’s decision to close the case, she nevertheless recognizes the importance of the Court’s precedent-setting interpretation of Article 21 of the American Convention on Human Rights[16] for other communities’ struggle for property rights in the Americas and elsewhere.

Ruth Vargas-Forman, Patricia Viera-Bravo, and Juan Pichún-Collonao’s contribution to this special issue is also related to the exploitation of natural resources on Indigenous territory. The authors trace centuries of territorial dispossession and Indigenous resilience in what is now known as Chile with a specific focus on lof (Mapuche community) Temulemu. The historical context allows readers to better understand the Chilean State’s use of Antiterrorism Laws to criminalize Indigenous leaders and silence their demands for land and recognition in the face of dispossession, often a result of the expansion of the forestry industry. The authors focus on the experience of lonko Juan Pichún’s father, Pascual Pichún, and seven other Indigenous leaders whom the State condemned for being “terrorists.” The Inter-American Court of Human Rights ruled in 2014 that the Chilean State had violated a range of rights guaranteed in the American Convention and ordered the State to annul the sentences[17]. In what the Vargas-Forman, Viera-Bravo, and Pichún-Collonao frame as symbolic reparation, the State complied with the ruling, eliminating the leaders’ criminal antecedents. At the same time, the authors highlight the impossibility of eliminating the pain the imprisoned leaders, their families, and their communities experienced, nor the stigmatization Indigenous communities have long suffered when their struggles for land are labeled terrorism. Indeed, given the continued dominance of “judicial discrimination and legal colonialism,” Indigenous leaders continue to be criminalized and branded as terrorists.

Nancy Tapias Torrado expands on the problem of criminalizing human rights defenders and explores this phenomenon as a silencing mechanism, particularly in the context of Indigenous, women-led movements. This includes, as seen in Chile, misusing the justice system to prosecute individuals for exercising internationally recognized rights to defend human rights. Tapias Torrado explores the issue of Indigenous, women-led movements in the context of resistance to mega-projects in Latin America, with a particular focus in this article on Berta Cáceres and the Council of Popular and Indigenous Organizations of Honduras (COPINH). She develops the acción trenzada framework to explain how marginalized and seemingly powerless leaders and movements, like Cáceres and COPINH, can succeed in changing the behaviour of the most powerful economic actors in the world. Thus, Tapias Torrodo’s work frames Indigenous women leaders not as victims of criminalization and silencing, but as actors who sometimes overcome these and other strategies to force corporations to behave differently.

Rachel Hatcher’s work on the El Salvador’s “memory entrepreneurs” opens the section on access to justice. Hatcher draws on the work of Elizabeth Jelin[18] to trace struggles between different Salvadoran “memory entrepreneurs” over the meaning of the 1993 Amnesty Law. The Amnesty Law awarded amnesty for all crimes committed by all parties during El Salvador’s Civil War (1980-1992). Memory entrepreneurs are social actors who seek to convince other social actors to embrace a particular narrative or meaning of the past. Hatcher describes debates between State memory entrepreneurs, who see the Amnesty Law as turning the page on and forgetting the past, and human rights memory entrepreneurs, who insist on memory, truth, and justice, and spent years working to have the Amnesty Law declared unconstitutional. Hatcher’s discussion highlights the fractured nature of the State, for not all State institutions understand the Amnesty Law in the same way, as well as the consistent meaning most State memory entrepreneurs have given to the Amnesty Law, no matter which political party is in power. Hatcher suggests that the reality of the post-Civil War era prevents even those State memory entrepreneurs willing to work for memory, truth, and justice from doing so. The country’s exceptionally high crime rates, and reliance on the military for public security, mean that holding the military accountable for past violations is politically risky.

The UN’s Universal Periodic Review (UPR), approved in 2006, is the focus of Fernanda Brandão Lapa and Suiany Zimermann Bail’s article. The UPR is an additional tool that civil society organizations can use to pressure States to improve the human rights situation in the country. In the Brazilian case under study, this includes issues related to Indigenous peoples, police abuse, migrants and refugees, the environment, the LGBTQI+ community, and women. Brazilian civil society organizations recognize the potential that the UPR represented and have strategically engaged with the mechanism since its creation in 2006. With the 2017 formation of the UPR Brazil Coalition, civil society organizations aim to better monitor both the human rights situation in Brazil and the Brazilian State’s response to recommendations made in previous reviews. As the authors and the UPR Brazil Coalition report make clear, the State has done little to respond to these recommendations, even as human rights violations have increased during the Covid-19 pandemic, making the work of the UPR Brazil Coalition even more essential.

The final section, Canada and the IAHRS, includes texts by Sara Gold, Daniel Lopes Cerqueira, and Bernard Duhaime and Nancy Tapias. Sara Gold asks readers, and especially North American readers, to reimagine what it means to be "American" in the hemispheric sense of the word. She argues that a broader, regional understanding of the word would help Canada, and Canadians, deepen engagement with the IAHRS. She argues that this deeper engagement, including fully participating in all aspects of the IAHRS, would work to further protect Indigenous rights in Canada by providing additional channels through which to seek justice for violations. This, Gold concludes, would reinforce Canada’s recent commitment to reconciling with Indigenous peoples.

Daniel Cerqueira approaches the issue of Indigenous rights from an institutional perspective and makes clear connections between developments across the Americas in terms of Indigenous rights. Cerqueira shows that Canada, though not a full player in the IAHRS, has had a significant impact both on the IAHRS’s various institutions and on how Indigenous issues are framed in Latin American constitutions. He looks at Canada’s embrace of multiculturalism, as opposed to “integrationism,” and the way it is enshrined in the Canadian Constitution and traces Latin America’s embrace of this framework in their own constitutions written in the 1980s and 1990s. Cerqueira then explores how Latin American countries and the IAHRS have pushed understandings of Indigenous rights, including territorial rights, beyond how they are understood in Canada’s multicultural context. This includes the right of Indigenous communities to “free, prior, and informed consultation and consent,” for example in relation to mega-projects. Cerqueira concludes that Canada could be inspired by its Latin American neighbors and the IAHRS to better recognize and protect Indigenous rights, especially in the context of Canada’s efforts to work toward reconciliation.

Bernard Duhaime and Nancy Tapias adopt a positivist perspective to present some of the contributions of the IAHRS to the development of legal standards on girls’ and women’s human rights in the Americas. The authors first address the IAHRS’s normative and institutional framework on the topic then present key jurisprudential advances in three specific areas: equality and non-discrimination; the right to be free from violence; and sexual and reproductive rights. Duhaime and Tapias make it clear that the IAHRS and its ever-growing jurisprudence are essential when addressing the important human rights concerns Canadian women face. They conclude that the IAHRS has made an undeniable contribution to specific cases and strengthened the legal frameworks for protecting women’s rights that exist in Latin America and the Caribbean.

The articles presented in this special issue speak to each of the previously identified themes (access to justice; territorial rights and Indigenous peoples; constitutions, federalisms, and institutions; and transitional justice and reconciliation) and suggest answers to the broader questions raised in conversation and dialogue led by the SOAA team with Canadian actors and stakeholders. The rich and layered Latin American experiences of transitional justice processes and larger struggles for human rights presented here constitute relevant teaching that Canada and Canadians can learn from.

The authors are not suggesting that Latin American initiatives can simply be transplanted from South to North. The differences in history, politics, and culture are too vast to allow for such an easy “solution” to Canada’s human rights and reconciliation challenges. This is even more so in relation to areas such as the nature of the human rights violations that need to be dealt with; the historical, cultural/social, and political contexts in which they were committed; the extent of the “transition” a society may or may not have experienced; what the victims want and the variety of ways they envision the future, etc.

***

In the past, inter-American dialogue has proven fruitful, especially in relation to protecting human rights. This is evident in the creation of the Inter-American Commission on Human Rights, the adopting of the American Convention on Human Rights, and the creation of the Inter-American Court of Human Rights. The objectives of SOAA are certainly far more modest, but, as the articles included here and the project’s forthcoming Final Report make clear, the breadth and depth of Latin American experiences in human rights should not be disregarded in Canada’s own efforts to protect human rights and commit to reconciliation.