Legal Pluralism: Reflections On The Role Of Law In
Providing Justice For Indigenous Peoples – A Canadian Context
Paul L.A.H. Chartrand, Former Commissioner, Royal Commission on Aboriginal
title of this conference is ‘Indigenous Peoples and Justice’, and the aim of
The F.I.R.S.T. Foundation which sponsors it, is to promote
research and informed discussion on the issues facing indigenous communities
both nationally and internationally. I
hope to be able to contribute in a small way to this goal in respect to
indigenous peoples and justice.
1996 the Royal Commission on Aboriginal Peoples released a special report on
criminal justice which contained this statement;
Canadian criminal justice system has failed the Aboriginal peoples of Canada -
First Nations, Inuit and Metis people, on-reserve and off reserve, urban and
rural - in all territorial and governmental jurisdictions.
The principal reason for this crushing failure is the fundamentally
different world views of Aboriginal and non-Aboriginal people with respect to
such elemental issues as the substantive content of Justice and the process of
achieving Justice.” 1
April 23, 1999, in a sentencing decision of the Supreme Court of Canada quoted
this statement when deciding on the interpretation of the Criminal Code of
Canada which pertains to Aboriginal people and incarceration, and added that...
surprisingly, the excessive imprisonment of Aboriginal people is only the tip of
the iceberg insofar as the estrangement of the Aboriginal peoples from the
Canadian criminal justice system is concerned. 2
will be agreed that the substantive criminal law, by proscribing particular
behaviour, reflects a society’s broad consensus on basic social values.
Not only did the substantive criminal law of Canada fail to accommodate
the distinct cultural values of indigenous peoples, it also served a process of
social engineering to change those values, and also advanced Canadian political
objectives in asserting political control over indigenous communities.
In this address I shall first briefly illustrate how the law helped to destroy, fragment and dispossess the Aboriginal peoples of Canada. They have been left today marginalized and disillusioned as individuals in cities or little communities, plagued by the social, economic, and political effects of the taking of their homelands by newcomers. These new-comers did not respect their ways of life, their community structures, or their inherent dignity as human beings.
hope to contribute to the discussion of the actual and potential role of the law
in offering substantive remedial solutions to the injustices the law was used to
create. My comments will draw upon developments in the judicial Doctrine of
Aboriginal Rights in Canadian Courts, and upon the developments in international
law, which relate to the obligations of ‘nation states’ to respect the
presence of indigenous peoples.
historical failure of the substantive criminal law to deal with conflicting
worldviews and cultures may be dramatically illustrated by the Wehtigo murder
The Wehtigo was one of the non-human beings in the world of several
Woodland indigenous peoples in Canada. An
evil spirit who took possession of people who would then kill and devour their
families and companions, the Wehtigo was much feared, especially during periods
of isolation and hunger in the winter time, and had to be ritually slain for the
protection of the community. A person under the influence of the Wehtigo possessed
remarkable physical strength and powers of resurrection.
In the case of Moostoos, a Wehtigo killed in 1899 near Lesser Slave Lake,
the evidence at the trial showed that Moostoos was aware of his impending
Wehtigo possession and declared his preference to be killed rather than hurt his own children. He was
killed with axe blows, his heart pierced with a wooden stake and hot tea was
poured into it since the heart of a Wehtigo turns to ice.
As in all other Wehtigo cases, the belief that the victim was a Wehtigo
and there was no intention to kill a human being was not accepted.
Wehtigo killers were convicted of murder or manslaughter.
The manifest injustice of forcing foreign values into indigenous
communities was dealt with only after conviction, by executive clemency or
through the sentencing process.
examples may illustrate the intolerance of conflicting cultural values.
These include the application of the Criminal Code prohibition against
bigamy to polygamous Plains cultures, and the prohibitions of the Indian
Act against social institutions such as the Potlatch and against religious
practices including various dances, some of which are now enjoying a resurgence
in contemporary Canada.
law’s support for Canadian political objectives may be illustrated by the 1884
Indian Act amendments which prohibited
meetings of three or more Metis or Indian persons, at a time when armed
insurrection was apprehended. A
companion amendment prohibited the sale of ball ammunition to Aboriginal people.
At the fall of Batoche in May 1885, in what has been called the Riel
Rebellion, old Metis men were found in rifle pits, using nails as ammunition
against Canadian troops.
unconscionable taking of the lands of the indigenous peoples, and the law’s
justification by means of written treaty provisions and a theory of aboriginal
title, would require comprehensive treatment in a separate address.
the educative and political functions of the law were identified clearly by
Crown counsel in one of the Inuit show trials held in the Canadian far North at
the beginning of the 20th century;
these remote savages, really cannibals ... have got to be taught to recognize
the authority of the British Crown, and that the authority of the Crown and of
the Dominion of Canada, of which these countries are a part, extends to the
furthermost limits of the frozen North ... for the first time in history, these
people ... will be brought in contact with and will be taught what is the white
man’s justice... 4
current Canadian Criminal Code Sentencing Provision in the Gladue case typifies
the way in which the law dealt with indigenous accused, making no concessions in
the substantive law, but some accommodation, (as required in the interests of
the State), after conviction. More
recently, initiatives have begun to focus on interventions, at what may be
called the front end of the system, i.e. prior to the actual trial.
It is on these accommodations, I perceive, that much of the discussion at
this conference will focus.
have tried to illustrate that Canada and its predecessor imperial colonies in
asserting their political power over the Aboriginal peoples in Canada, have done
significant damage to the values and cultural practices of them.
They have (all but) destroyed the social viability of the political and
social relations that once defined and governed distinct Aboriginal societies.
The law and legal system, unfortunately, have helped in these injustices.
Today, as the world community develops standards of human rights for
individuals and communities, the legitimacy of States is measured increasingly
by their adherence to these standards and their protection of fundamental human
rights. In Canada, there are weak
and begrudging policy shifts towards recognition of the proprietary rights of
the Aboriginal owners of Canadian territory, mostly by means of modern treaty
making and devolution of administrative authority to small groups of Aboriginal
people. The courts are playing a
role in moving this policy shift by the development of a judicial Doctrine of
The development of
the Doctrine of Aboriginal Rights proceeds in an ad hoc fashion, as is
the way of the common law. The
early cases which began the process did not even include arguments from the
Aboriginal people whose fundamental interests were at stake. This exclusion, which could not be contemplated today,
reflected the then approach to the political process which constituted Canada,
which failed to include Aboriginal people simply because Aboriginal people did
not matter. They matter neither in
a political nor in a legal sense.
proposition is best illustrated by the doctrine of terra
nullius which attempted to justify the taking of Aboriginal lands by
declaring them to be empty of people, that is, empty of people who mattered.
Other public and social institutions took the same approach.
So the history books in the schools taught a history of a country in
which the story of the indigenous peoples was worthy of mention only in light of
its relevance to the newcomers. Peoples
who do not matter do not have a history that matters.
This of course, reinforced the political aims of subjugating the identity
of Aboriginal individuals by submerging their group identity and
‘justifying’ public policies that ‘treat everyone the same...’. The
differences of history, of kinship and territorial occupation, of physical and
moral presence, were all sacrificed to the aim of building Canada as a pale
imitation of Europe. The preferred
social and political relations of the newcomers became firmly institutionalized
in the politics and the law of Canada.
The resurgence in
judicial activity, beginning in the early 1970s, resulted from challenges to the
expansion of Canadian exploitation of lands where the question of Aboriginal
title had not been settled. The
principles developed by the court reflected the nature of the conflict of
interests over land, and the court moved very cautiously.
the basic concept of aboriginal rights requires the recognition of distinct
aboriginal societies. In these
societies, there are preferred ways of organizing society around shared values,
moral, social and political. The
function of law in such an Aboriginal society would be to formalize these
relations with the sanctions of the law through a legal process.
The function is the same within the newcomer society.
The conceptual basis upon which the courts of the newcomers select
certain social and political relations within the indigenous society and
transform them into legal relations enforceable within Canadian law and society
formulates the doctrine of aboriginal rights.
On this view, the courts do not accord an independent validity to
indigenous social and political relations, but only as interpreted within the
Canadian legal system. The
‘source’ of the law is said to be within the indigenous social system, but
the legal character of the actions that receive the law’s protection are
derived from judicial approbation. This
is not legal pluralism. There is
still only one system of law, the newcomer’s system, and the contemporary
legal validity of indigenous social and political relations depends upon the
substantive content of the Doctrine of Aboriginal Rights. That
explains why recourse to Canadian courts is both a blessing and a curse from the
perspective of indigenous peoples.
cases have expanded the doctrine of aboriginal rights beyond questions of land
title. Cultural and economic
activities are now given the protection of the law if they are activities that
substantially trace their origins to pre-contact times and have continued until
today. These activities must be
judicially characterized as being integral to a distinct Aboriginal group’s
identity, from evidence adduced by persons accepted as experts.
The cases to date have focused on economic activities such as fishing and
using natural resources for cultural purposes.
Aboriginal title is only one element of aboriginal rights. It is not
necessary to prove aboriginal title to succeed on a claim of aboriginal rights.
viewed in its proper historical context, this legal protection has serious
limitations. Many cultural
practices were effectively discontinued and extinguished by early law and policy
may no longer be claimed as aboriginal rights because they do not meet the test
of continuity. Many former economic
resources have been destroyed. A
test that would protect buffalo hunting as the main economic activities that
defined many indigenous Plains cultures is little comfort now that the buffalo
are gone. This doctrine of
aboriginal rights cannot provide remedial justice by substituting access to a
modem resource base for an indigenous people to raise its families and build its
vision of a happy neighborhood.
Another fundamental weakness is the decision of the judges themselves to undertake the task of interpreting the substantive content of social and political relations within indigenous societies. If these had been negotiated between political representatives of the indigenous peoples themselves and representatives of the Canadian system there would have been more legitimacy in agreements on the substantive content of aboriginal rights. The judges of the common law courts are neither singularly nor severally qualified to interpret indigenous identity and social and political relations within the indigenous societies. A process whereby indigenous spiritual and political leaders come to court to plead their rights before appointed judges can not hope to sustain a great degree of political legitimacy. It would have been better, in principle, to develop the law of obligations which would have required representatives of the Crown to negotiate the substantive content of aboriginal rights, as determined by indigenous people themselves. The role of the law in responding to the exercise of political power is exemplified by the recent Quebec Secession Reference in which the Supreme Court of Canada had no difficulty in introducing a theory of Governmental obligation to respond to separatist political initiatives from the Province of Quebec.
Court’s undertaking to define the content of aboriginal rights was also done
at a cost to traditional legal processes. Evidence
on substantive social relations within indigenous societies is adduced from
elders and others and is largely based on oral history and testimony.
Newly developed common law rules for receiving oral evidence have had
negative reaction responses which extend beyond the legal profession, and have
been used to further weakened public support for the judicial development of
aboriginal rights. The Courts have
undertaken a task for which they are not well suited.
Nowhere will this become more evident than in the eventual and necessary
judicial definition of the group identity of indigenous people, a topic which I
will develop further below. But
first, it will be useful to turn to a brief consideration of the concern of
international human rights law, with the rights of indigenous communities within
some existing Nation-States.
major United Nations human rights law instruments establish the right of
self-determination in the following terms;
peoples have the right of self-determination.
By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development.”
member States of the United Nations are required to respect that right;
States Parties ... shall promote the realization of the right of self
determination, and shall respect that right, in conformity with the provisions
of the Charter of the United Nations.”
Draft Declaration on the Rights of Indigenous Peoples which is being considered
by the UN Commission on Human Rights, includes the same text recognizing the
right of self-determination.
recent developments, the Supreme Court of Canada has explicitly accepted that
the right of self-determination of ‘peoples’ constitutes international law
and not merely convention. The
Government of Canada formally accepted in 1996 that the right of
self-determination applies to all peoples, including indigenous peoples who do
not comprise the majority population within a Nation State.
April 1999, however, Canada was criticized by the Committee of the Commission on
Human Rights for its failure to explain the elements that make up the concept of
self-determination as applied to the Aboriginal peoples in Canada, and urged
Canada to report adequately on implementation of the above-cited provision of
the International Covenant on Civil and
Political Rights. In its
report, the Committee noted Canada’s admission that the situation of the
Aboriginal peoples “remains the most pressing human rights issue facing
Canadians” and the committee expressed its concern that Canada has not yet
implemented the recommendations of the Royal Commission on Aboriginal Peoples.
This is an historic expression by the international community of the view
that the right of self-determination comprises substantive law which State
Parties are bound to respect and apply within the domestic context.5
may be emphasized then, that self-determination is a substantive right vested in
indigenous peoples. The right of
self-determination is contained within international human rights law and thus
attracts the obligation of States to protect it and make it effective in a
domestic context. This approach is
paralleled in the recent judicial development of positive obligations of both
Government and Parliament in Canada to respect the law of the constitution by
protecting rights and making them effective.
The English doctrine of parliamentary supremacy has given way, in
Canada’s constitutional democracy, to a system where the law of the
constitution not only limits the exercise of governmental power, but also
attaches positive obligations which are judicially enforceable.
This position was elaborated in the Quebec
Secession Reference decided in August 1998.
right of self-determination has often been resisted by State agents who have
described it as an impossible goal, reflecting a preference for homogeneous,
independent, often small ‘nation-states’ which would necessarily result in
massive social and political disruption. If
self determination is viewed as an aspect of human rights with the objective of
promoting preference for democratic and participatory political and economic
systems in which the rights of individuals and the identity of minority
communities are protected, however, it loses much of its threatening character. 6
right of self-determination also loses any threatening character it might have
when viewed in the proper context of its exercise by indigenous peoples within
modem nation states. Rights are
never absolute and their exercise must respect the equal rights of other groups.
Thus, the exercise of the right of self-determination must respect the
same right of other ‘peoples’. I
suppose too, that those representatives of a people responsible for deciding on
the substantive public decisions taken pursuant to the exercise of the right of
self-determination are bound to make decisions that offer some reasonable
prospect of success, such will be measured in terms of reaching the goals behind
self-determination, which must include the continued preservation and nurturing
of a distinct social and cultural society.
On this basis, the right is not a licence to commit collective cultural
suicide by ignoring the presence of powerful neighbours.
Negotiations with the representatives of the representatives of the
powerful nation states are warranted.
existence of indigenous peoples as enclaves within powerful nation states
explains why we need the pressure of international law backed by the
international community to oblige nation states to protect human rights
and assure the implementation of a domestic application of the human right of
viewed functionally as a form of dialogue that replaces the assertion of
preferences by the exercise of power, rights are in constant evolution.
This is true not only for norms of international law but for the
interpretation of constitutional and legal rights.
Policy, Legal and Constitutional Developments concerning
Political Rights of Indigenous Peoples of Canada
this section I will discuss arguments for the recognition of the rights of
Aboriginal peoples as distinct societies or ‘nations’ in Canadian law and
policy and offer some commentary on the ‘judicial definition of Aboriginal
1982 the Constitution of Canada was amended to include recognition and
affirmation of the existing aboriginal and treaty rights of its Aboriginal
peoples. The Aboriginal peoples
include the Indian (First Nations), Inuit and Metis peoples, all historic
peoples indigenous to what is now Canadian territory.
A specific provision required the Prime Minister to invite
representatives of the Aboriginal peoples to a series of First Ministers’
Conferences (the Prime Minister and the Premier of each Province and the Leader
of each Territory) to discuss the elaboration of aboriginal rights.
The need to put an obligation to hold meetings in the Constitution
illustrates, the deep sense of mistrust in which these events took place.
Canada may be said to have constitutionalized mistrust between itself and
the Aboriginal peoples. Those
meetings ended without any agreement among First Ministers to guarantee any
substantive rights beyond the bare recognition provision already in the 1982
amendment. A series of other events
including the armed stand off at Oka in 1990, moved the federal government to
establish a Royal Commission to advise it on a comprehensive set of Aboriginal
Final Report of the Royal Commission on Aboriginal Peoples urged Canada to adopt
a twenty year policy strategy based on the formal recognition of Aboriginal
‘nations’, defined as domestic versions of ‘indigenous peoples’ at
international law. Among the
‘aboriginal rights’ protected by the 1982 amendment, the Royal Commission
argued, is the domestic common law aboriginal right of ‘self-government’.
Further, it argues that the aboriginal right of self-government is vested
in Aboriginal ‘nations’ and not in federally created ‘Indian bands’ or
Metis or Inuit communities. In
particular, the report recognized the effect of colonial destruction of
Aboriginal social and political community structures and proposed a process of
building or ‘constituting’ nations.
formal response of the Canadian Government, released on 7 January 1998, did not
adopt these specific recommendations but offered marginal changes to its
existing ‘self-government’ negotiations policies. The centre piece of the policy response was the creation of a
350 million dollar healing fund to address the legacy of sexual and physical
abuse in Indian residential schools. In
the result, the most significant movement towards formal recognition of the
political rights of Aboriginal nations may be discerned in the terms of the
treaty being formalized with the Nisga’a people in British Columbia.
This treaty is serving as a lightning rod for debates on the issues of
Aboriginal group and political rights. The
Canadian Government does not want to shift rapidly on the formal recognition of
indigenous peoples nor to develop a domestic application of the right of
self-determination, Canada has already attracted criticism from the United
Nations for its intransigence.
In this context, the courts will have a significant role in
defining the group aboriginal rights which the constitution has put beyond the
reach of legislative extinguishment. The
last great open questions in the development of this judicial doctrine are the
actual definition of the ‘peoples’ in which the aboriginal rights are vested
the right of ‘self-government’, within the category of political rights of
central reason that might be advanced for Canada’s reluctance to adopt the
RCAP’s arguments for the recognition of Aboriginal ‘nations’ is wider
public opinion about the underlying issues.
In the context of this brief presentation I will attempt to address two
red herrings, thrown into the confused public debate on Aboriginal
self-government. The first one is
captured in the false cry of ‘one law for all’. The second is the idea that Aboriginal self-government is a
species of ‘race-based’ legal differentiation that must not be tolerated in
a democratic society.
slogan of ‘one law for all’ neatly avoids the question how the ‘all’
happens to include Aboriginal peoples. In
other words, what is the argument to justify the political boundaries within
which political power and legal authority is asserted over distinct peoples?
The exercise of power must always be justified, whether by the State over
individual citizens or by a State over distinct ‘peoples’ having the right
of self-determination. Canada, and
I suspect other Nation States, are challenged in finding an answer.
If we apply the argument of the Supreme Court of Canada about the
legitimacy of the law of the constitution, we find it is based on the democratic
principle of the expression of the consent of the governed.
What process then explains the consent of the distinct Aboriginal peoples
in respect to Canadian power and authority over them?
Aboriginal peoples have their own arguments to explain the illegitimacy
of Canadian rule over them, but it ought not to go unnoticed that Canada’s own
standards of legitimacy do not allow the easy cry of ‘one law for all’ to
other bogey man raised by opponents of Aboriginal self-government, for the sole
purpose of knocking, it down, is the idea that Aboriginal self-government
extends special legal treatment to a ‘racial’ minority . The RCAP Report
took pains to explain that Aboriginal nations comprise freely associated social
and political communities and not racial minorities. Given the history and geographical and social circumstances
of Aboriginal peoples, it is natural that most individuals within these nations
will have a common genetic pool. But
the reason the group has a collective right is not to advance biological
cultures but social and political cultures which assert a common social and
political vision of a good society.
goal of the collective right of self-determination and of self-government is the
promotion of distinct cultures or agendas for living.
Each distinct Aboriginal people, like all ‘peoples’, has a right to
decide on the nature and scope of its ‘public interest’, based on its
preferred social and political values upon which its society is organized and
will conclude this section by showing how the law of the constitution of Canada
might be interpreted to accommodate both the existence of individuals of
‘Aboriginal ancestry’ on one hand, and distinct Aboriginal ‘nations’
with collective rights, on the other hand.
1982 Constitutional amendment contains a Charter
of Rights and Freedoms which
includes not only a guarantee of equal rights for all individuals but also
permits affirmative action laws and programmes designed to ameliorate the
circumstances of disadvantaged individuals and groups, including those
disadvantaged by reason of ‘race,
ethnic or national origin....’.7
This is the proper constitutional locus for debating the merits of remedial
justice in the form of affirmative action programmes for disadvantaged ‘racial
minorities’, including individuals of biological ‘aboriginal ancestry.’ It
is important, however, not to conflate the groups comprised of such individuals
with the Aboriginal ‘peoples’ having aboriginal collective rights protected
by the aboriginal rights provisions in another Part of the Constitution Act 1982.
identification of Aboriginal peoples, groups having group rights, must be based
upon generally acceptable fundamental principles designed to reach legitimate
social and political objectives. Some
objectives of Aboriginal self-government have been introduced above.
The recent Quebec Secession Reference identifies
a number of such ‘unwritten principles of the constitution’ of Canada that
provide a rich source for informed debate and argument. 8
the facts of the Reference, the Court considered the following four unwritten
principles; federalism, democracy, constitutionalism and the rule law, and
respect for minorities. Those are not the only such principles, however.
The Court has identified others in other cases and has explained that
however. The Court has identified
the category of judicially found principles is not closed.
The ‘judicial discussion of the principles in the Reference, along with
the Court’s introduction of a general theory of Government and Parliamentary
obligation, suggests that in time it may prove to be the most significant
‘aboriginal rights’ case in the history of Canadian jurisprudence.
How may some of these principles apply to the definition of Aboriginal
peoples and the process of constituting nations’ policy recommended by the
Royal Commission on Aboriginal Peoples?
Aboriginal ‘nations’ must constitute themselves in a democratic process that
respects the human rights of its members and establishes a process for the free
expression of the collective will of the people, including on such issues as the
form of self-government and the political representative functions.
Once a ‘people’ has so constituted itself. Canada has a positive
obligation to negotiate self-government within Canada, just as Canada was
required by the Reference, to respond
positively to a desire to negotiate the terms of secession of the Province of
Quebec upon the free expression of the collective will of the population of the
province by a referendum.
a ‘nation’s Constitution’ would include the rules of membership whereby
citizenship in an Aboriginal nation would be determined.
Thus it can be emphasized that the constitution of an Aboriginal nation
with political rights of governance is based upon the free consent of
individuals to associate themselves as members of the nation, on the one hand,
and the acceptance by the nation of these members based upon group rules of
an approach reflects the element of ‘self-definition’ as an aspect of
self-government and ensures that membership in historic social and political
communities is not merely a matter of ‘racial ancestry’ but a necessary
element of the exercise of democratic rights.
If an ultimate objective of giving legal recognition to group political
rights of Aboriginal self-government is the maintenance of distinct identities
and cultures by aggregating communities of like-minded individuals, it makes no
sense to foist unwilling individuals defined merely by biological ancestry upon
the community. The rules of membership themselves would be based upon morally,
socially and politically legitimate principles, and not upon accidents of birth.
the close ties between blood and belonging, this is not necessarily a recipe for
instant social harmony; it is, though, an attempt to proceed with the practical
institutionalization of Aboriginal self-government on a principled basis that
should have the approbation of both the domestic and international communities.
like ‘one law for all’ and ‘no special rights for racial minorities’, or
‘special needs not special rights’ are political slogans and not substantive
arguments. When we scratch their
surface we find they are empty and they remind us that words ought to convey
ideas and not be used as substitutes for ideas.
its educative function, and by assisting the political goals of Canada, the law
has been an important State instrument of social and political control over
indigenous peoples. The law has
rationalized the exercise of power in the unconscionable dispossession of
peoples and the subjugation of their collective and personal identity, political
and social ideals and economic interests.
as the international community and domestic courts continue to develop and
protect the substantive rights of indigenous peoples, that same educative
function may be used to resurrect Aboriginal identity and rights and defeat the
empty political rhetoric that threatens and stands in the way of justice for
I may conclude by returning to the ‘tip of the iceberg’ metaphor in the Gladue case, I look forward to the following papers and discussions
which will reveal to me whether there is an iceberg in the New Zealand criminal
justice system, and if so, how much is exposed to public and scholarly scrutiny.
question of legal pluralism, whether reflected only in a separate criminal
justice system or in a more comprehensive regime of Aboriginal self government,
is a legitimate subject for moral, political and legal research and discussion,
which are laudable objectives of The F.I.R.S.T. Foundation
which has sponsored this Conference.
Canada. Royal Commission on Aboriginal Peoples.
Bridging the Cultural Divide:
A Report on Aboriginal People and Criminal Justice in Canada Ottawa.
Minister of Supply and Services Canada 1996, @309.
R v Gladue  2CNLR 252, @275
3 The author has a number of files on Wehtigo cases mostly derived from notes taken by observers at the trials. See, for a general description of some of the trials, Cornelia Schuh, ‘Justice on the Northern Frontier: Early Murder Trials of Native Accused’, (1979-80) 22 Criminal Law Quarterly, pp. 74-111. A reported case is R v. Machequonabe (I 897), 28 OR. 309
4 Schuh, supra, note 3, @ 89-90
International Covenant on Civil and Political Rights.
Human Rights Committee. Sixty-fifth
session. 7 April 1999. “
Consideration of reports submitted by States parties under article 40 of the
Covenant. Concluding observations of the Human Rights Committee.
argument is made by Professor Hannum in H. Hannum, “Rethinking
Self-Determination” in (1993) 34 Virginia Journal of International Law
1-69, @ 66.
7 Section 15 (1) and (2) of Constitution
Act 1982, Part One.
Re Secession of Quebec  2 S.C.R. 217