Mi’kmaq Society v. Canada

Mi’kmaq Society v. Canada;
The Right of Self-Determination and to be Involved in Public Affairs

Documentary History of
A.D. v. Canada, Communication No. 78/1980
Marshall v. Canada, Communication No. 205/1986
Submitted to the UN Human Rights Committee

In September 1980 Alexander Denny, Grand Captain of the Mi’kmaq tribal society, on behalf of the Mi’kmaq people submitted a communication to the United Nations Human Rights Committee, alleging that the Government of Canada had denied and was continuing to deny the Mi’kmaq tribal society of the right to self-determination, in violation of article 1 of the International Covenant on Civil and Political Rights. The Human Rights Committee subsequently held the communication to be inadmissible as the author of the communication had not proven he was authorized to act as a representative on behalf of the Mi’kmaq tribal society.

A revised communication was submitted in January 1986 by Grand Chief Donald Marshall, Grand Captain Alexander Denny and Advisor Simon Marshall, as officers of the Grand Council of the Mi’kmaq tribal society. In this communication they claimed that Canada’s refusal to grant representatives of the tribal society a seat at the constitutional conferences on Aboriginal matters that were convened following the enactment of the Constitution Act, 1982, denied them the right of self-determination, in violation of article 1 of the International Covenant on Civil and Political Rights. They subsequently revised the claim and contended that such refusal also infringed their right to take part in the conduct of public affairs, in violation of article 25(a) of the Covenant. The Human Rights Committee declared the communication admissible insofar as it may raise issues under article 25(a) of the Covenant; the Committee declared the communication inadmissible in respect of the claim of an alleged violation of article 1 of the Covenant. The Committee subsequently concluded that the communication did not disclose a violation of article 25 or any other provisions in the Covenant.

The following collection of documents (1–34) will provide readers with a documentary history of these communications from the date of initial submission to the date of the Committee’s final decision. The accompanying “Introduction”, prepared by Sákéj Henderson, contextualizes and summarizes the Mi’kmaq communications to the United Nations Human Rights Committee.

"Introduction", by Sákéj Henderson

Document 1 Claim submitted to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights – Dated Before the Leaves Turn Color, 1980 (September 30, 1980).
Document 2 Initial decision of the Human Rights Committee (requests particulars regarding claimant’s standing) – November 12, 1980.
Document 3 Mi’kmaq reply to the Human Rights Committee (replies to request for particulars) – December 9, 1980.
Document 4 Response of the Government of Canada to the Human Rights Committee (submits that claim is inadmissible under article I of the International Covenant on Civil and Political Rights on three principal grounds: (1) Article I of the International Covenant cannot affect the national unity and territorial integrity of Canada. The right of self-determination was not intended to support secessionist movements within sovereign states; (2) International, American and Canadian law do not recognize treaties with North American Native People as international documents confirming the existence of these tribal societies as independent and sovereign states; and (3) Representatives of the Indians, Inuit and Metis people are assured to be involved in the present constitutional review process.) – July 21, 1981.
Document 5 Mi’kmaq reply to the Human Rights Committee (responds to Government of Canada’s July 21, 1981 submission) – October 3, 1981.
Document 6 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (asks the Committee to disregard third part of Canada’s July 21, 1981 response because proposals providing for Aboriginal and treaty rights in the Constitution had recently been deleted from the draft placed before Parliament) – November 11, 1981.
Document 7 Response of the Government of Canada to the Human Rights Committee (further submissions on question of inadmissibility) – May 17, 1982.
Document 8 Mi’kmaq reply to the Human Rights Committee (argues in favour of the admissibility of the claim) – July 15, 1982.
Document 9 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (advises the Committee of a recent Nova Scotia Supreme Court decision) – October 2, 1982.
Document 10 Letter from John Munro, Minister of Indian Affairs and Northern Development, Government of Canada to Russel Barsh, counsel for the Mi’kmaq (the Government of Canada states its position that its relationship with Indian peoples is an internal Canadian responsibility) – February 7, 1984.
Document 11 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (after a report on Indian Self-Government had been tabled in the House of Commons, asks the Committee to invite the Government of Canada to comment on whether it has changed its views on self-government) – January 6, 1984.
Document 12 Decision of the Human Rights Committee on inadmissibility of claim (holds that claim is inadmissible because claimant has not proven that he is authorized to act as a representative of the Mi’kmaq tribal society) – 26 July 1984.
Document 13 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (requests reconsideration of the Committee’s decision) – August 17, 1984.
Document 14 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (provides additional documentation concerning claimant’s representativeness) – October 5, 1984.
Document 15 Revised claim submitted to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (alleges that Mi’kmaq tribe are a separate and distinct people; their territory was long recognized as an independent and federal state; they never lost their right to self-determination; and the refusal by Canada to allow their representatives to participate in constitutional discussions breaches the right of self-determination in Article I of the International Covenant) – January 30, 1986.
Document 16 Initial decision of the Human Rights Committee (requests Canada’s comments on the question of admissibility) – July 30, 1986.
Document 17 Response of the Government of Canada to the Human Rights Committee (submits that the claim is inadmissible) – no date [February 9, 1987].
Document 18 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (comments on the response of Canada (February 9, 1987), asserts as a secondary basis for relief Canada’s violation of article 25 of the Covenant, and requests interim protection) – March 10, 1987.
Document 19 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (advises that the final conference between the Government of Canada and selected indigenous organizations had been held) – May 18, 1987.
Document 20 Decision of the Working Group of the Human Rights Committee (concerning the question of whether all domestic remedies had been exhausted, asks for the text of the Supreme Court of Ontario’s decision in Prairie Treaty Nations Alliance v. The Queen, which held that the appointment of representative organizations is a political question for the Prime Minister, and as such not subject to judicial review) – July 28, 1987.
Document 21 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (further submissions concerning the question of whether all domestic remedies had been exhausted) – August 10, 1987.
Document 22 Response of the Government of Canada to the Human Rights Committee (further submissions concerning the inadmissibility of the claim) – October 7, 1987.
Document 23 Letter from -- -- (unsigned--Grand Council of the Mi’kmaq?) to the Human Rights Committee (asks the Committee to determine that the complaint is admissible) – February 14, 1988.
Document 24 Letter from Russel Barsh, agent, to the Human Rights Committee (urges that a decision be taken) – August 10, 1988.
Document 25 Response of the Government of Canada to the Human Rights Committee (submits that the claim is inadmissible, responds to arguments set out in letter dated February 14, 1988) – no date.
Document 26 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (informs the Committee of recent events in Canada, i.e. criminal prosecutions of Mi’kmaq individuals under hunting and fishing legislation in Canada) – February 12, 1989.
Document 27 Response of the Government of Canada to the Human Rights Committee (submits that the complaint be found inadmissible) – July 26, 1989.
Document 28 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (notes that information in letter of February 12, 1989 was transmitted to the Committee to show urgency with which decision on admissibility needed, not to ask for adjudication) – August 24, 1989.
Document 29 Decision of the Human Rights Committee on the admissibility of the claim (claim inadmissible in respect of Articles 1 and 9; claim admissible insofar as it may raise issues under article 25(a)) – August 21, 1990.
Document 30 Response of the Government of Canada to the Human Rights Committee (information on the legal nature and scope of constitutional conferences and criteria for participation; submissions concerning whether article 25(a) is available to individual citizens only; and submissions concerning whether constitutional conferences constitute a “conduct of public affairs”) – February 20, 1991.
Document 31 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (comments on Canada’s submissions concerning article 25(a)) – June 4, 1991.
Document 32 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (informs the Committee of the death of Grand Chief Donald Marshall, Sr.) – September 2, 1991.
Document 33 Final decision of the Human Rights Committee (holds that the failure to invite representatives of the Mi’kmaq tribal society to the constitutional conferences on Aboriginal matters did not infringe the right of the authors to take part in the conduct of public affairs without discrimination and without unreasonable restrictions) – December 3, 1991.
Document 34 Letter from Russel Barsh, counsel for the Mi’kmaq, to the Human Rights Committee (requests formal clarification of the Committee’s views) – January 5, 1992.