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Canada should engage U.N. racism group, though chair independence a question: expert

HALIFAX — Canada should respond to a U.N. committee examining whether it failed to protect Mi’kmaq fishers from racist violence, even though the independence of committee members can be questioned, a former human rights investigator says.

John Packer, who has carried out human rights inquiries for the U.N. and is a law professor at the University of Ottawa, said Ottawa should address questions regarding violence inflicted on the Sipekne’katik First Nation during a lobster harvest last fall off southwestern Nova Scotia.

A letter from the U.N. Committee on the Elimination of Racism includes allegations Canada “failed to take appropriate measures to prevent these acts of violence and to protect the fishers and their properties from being vandalized,” and that treaty rights have been breached.

Packer, the director of the university’s Human Rights Research and Education Centre, said if the group concludes Canada breached terms of a convention that aims to eliminate racism, “it harms Canada’s credibility,” even if the conclusions aren’t legally binding.

However, Packer also said the Committee on the Elimination of Racial Discrimination’s assertion that its 18 members are all independent experts can be debated.

He said in an interview Tuesday that while democratic countries often seek eminent academics or jurists as volunteers to sit on the body, some states “pick out people to sit on these committees to serve their interest.”

He gave the example of the curriculum vitae of the current chairperson of the committee, Yanduan Li, who signed the letter to Canada. She is a career diplomat for China. 

“The question is whether this person is acting as an independent expert,” said Packer. Li’s curriculum vitae also notes she has a law degree earned in the United States.

Packer’s comments were forwarded to Li and a member of the committee who handles media relations, but they did not respond by deadline.

Marc Bossuyt, a Belgian member of the U.N. committee, said in a telephone interview on Tuesday that Li was fulfilling her role as chairperson in signing the letter to Canada but had no direct involvement in drafting it. Bossuyt, currently vice-chairperson, noted different regions of the world take turns at the committee’s helm.

“She is an independent expert (and is) not acting on behalf of the government (of China),” he said.

The former professor of international law at the University of Antwerp and judge of the Constitutional Court of Belgium said a five-member working group is handling the complaint against Canada. He said that subcommittee will make recommendations, “and generally the wider committee will accept what’s proposed by that working group.”

The Mi’kmaq First Nation has argued it has the right to fish for a “moderate livelihood” when and where members wish, based on a landmark 1999 Supreme Court decision. The court later clarified that ruling to say Ottawa could regulate the treaty right for conservation and other purposes.

After launching a self-governed fishery last fall, members of the band encountered violence from non-Indigenous residents, resulting in the destruction of a lobster pound and the burning of a band member’s van in southwestern Nova Scotia.

Since then, federal Fisheries Minister Bernadette Jordan has said her department attempted to unsuccessfully negotiate the distribution of commercial licences for Sipekne’katik within designated seasons this year. Talks with the band broke down, and Sipekne’katik says it is planning to resume a self-regulated lobster fishery in June.

Chief Mike Sack has called on the U.N. to provide peacekeepers in the face of comments by Jordan that enforcement will take place if the fishery proceeds.

Rosalie Francis, a lawyer for Sipekne’katik, said in an interview that the committee on racism is known as being among the most independent in the United Nations.

“There are 18 individuals on this committee,” Francis said. “The chair isn’t making this decision on her own.” She said the fact that there are issues with China’s human rights record does not undermine the committee’s ability to review rights abuses in Canada.

Francis also said the impact of a decision in favour of her band will be significant and could have lasting effects on Canada’s international reputation. “I think the impact is that there will be a bigger dialogue internationally in the role of human rights in this country,” she said.

The members of the subcommittee initially considering the complaint against Canada are Chinsung Chung, a professor of sociology in Seoul, South Korea; Bakari Sidiki Diaby, an Ivorian lawyer with a background in human rights; Rita Izsak-Ndiaye, a lawyer from Hungary who has a background in human rights, Mehrdad Payandeh of Germany, a lawyer specialized in international law, and Luna Vega, a Peruvian lawyer with background in human rights. 

The committee has previously made findings against Canada in 2019, calling on Ottawa to suspend the Trans Mountain pipeline expansion, Site C dam and Coastal GasLink pipeline in response to submissions the projects were harming Indigenous rights.

Neither Global Affairs Canada nor the federal Department of Fisheries responded to emailed requests for comment by deadline.

This report by The Canadian Press was first published May 14, 2021.

Michael Tutton, The Canadian Press