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While it is reported that a large part of the mining activity abroad comes from Canada, a robust regulatory framework for addressing human rights violations committed by Canadian mining companies is lacking in Canada. From Canadian and international law perspectives, this paper addresses the issue of accountability of Canadian companies who commit human rights violations while operating in foreign countries. The paper discusses reports of human rights abuses by Canadian corporations and the jurisdiction of Canadian courts in cases of alleged violations committed abroad. It analyses selected recent decisions from Canadian courts as case-studies and argues that legal reform is needed to ensure accountability of Canadian corporations operating abroad and access to civil law remedies. [ABSTRACT FROM AUTHOR]

The transformative justice agenda within the field of transitional justice has yet to take up settler colonialism and Indigenous peoples. This paper develops the idea of an indigenised, decolonial transformative justice that encompasses relational change at the grassroots level through acts of Indigenous resurgence, settler decolonisation and allyship, as well as structural transformations at the state and global levels through the UN Declaration on the Rights of Indigenous Peoples. Canada currently is in a transitional moment and there has been a perceptible shift in its position toward the Declaration. It originally voted against the Declaration but is now committed to implementation as per the Truth and Reconciliation Commission's recommendation. A key issue is the extent to which the Declaration will be subsumed under Section 35 of the Constitution, which recognises existing Aboriginal Rights. The paper argues that Section 35 can only become a 'full box of rights' if the lid is fully opened to embrace the transformative, decolonising provisions of the Declaration, particularly those around free, prior and informed consent. Given the apparent reluctance of the state to disrupt the colonial status quo, grassroots and transnational mobilizations and strategies that enact the performative element of Indigenous rights will remain key. [ABSTRACT FROM AUTHOR]

Global activism led to the emergence of new international standards concerning state obligations to consult Indigenous peoples and, under certain circumstances, obtain their free, prior and informed consent (FPIC) when extractive projects impact their rights and traditional territories. However, a growing literature shows that the implementation of Indigenous peoples' participatory rights remains uneven and inconsistent at best. This paper focuses on Indigenous peoples' agency in operationalising their rights. We do so by focusing on an increasingly common yet overlooked Indigenous strategy: the development of community-based consultation and consent protocols. What role do unilateral Indigenous protocols play in shaping how participatory norms are implemented? How can protocols contribute to shaping Indigenous peoples' relations with state and industry actors? We present the result of a systematic comparative analysis of thirty-five consultation and consent protocols adopted by Indigenous nations and communities in Canada and Brazil between 2005 and 2020. While they vary in their structure and content, protocols in both countries converge in their use of both programmatic and performative languages to recast participatory processes as spaces to assert Indigenous peoples' status and legitimacy as self-determining polities. In doing so, protocols re-politicise and re-appropriate participatory processes and put forward an alternative interpretation of their participatory rights that challenges how state authorities and industry actors tend to operationalise consultation and FPIC standards. [ABSTRACT FROM AUTHOR]

Women of many cultures and religions find a means of coping with stress and ill health in faith-based practices, such as meditation and prayer. It is customary for Muslim women to participate in such activities, usually with a special dress code, which often includes a hijab. The headscarf ban in French and formerly in Quebec public schools not only forces Muslim female students to shed theiressentialreligious dress code, but also fails to address the resulting health consequences and to acknowledge the cultural aspects of head-covering. This paper argues that the ban on head coverings in public schools is not only an infringement on religious and cultural freedoms, and violation of human rights, but that it is also an unhealthy policy intervention, as it undermines health by restricting prayers, mindfulness and spirituality. Furthermore, the ban has taken away Muslim women's choice to wear a hijab, thus restricting a sense of self-autonomy and in turn causing additional negative health implications. By synthesising these ideas, this paper holds a novel and critical perspective that the headscarf ban policy in France should be re-examined not only because of its infringement of human rights, but also to assess the negative health impacts on affected groups. For these reasons the paper advocates a reversal of the ban, as has happened in Quebec, Canada. [ABSTRACT FROM AUTHOR]

This paper reconsiders the Supreme Court of Canada (SCC) judgment in Dobson v. Dobson.1 Dobson addressed the issue of whether a born alive child should have a judicially recognised legal right to sue the mother in tort for damages based on her negligence in causing him/her permanent disabilities that originated in prenatal harms. The SCC in Dobson denied the child legal capacity in the aforementioned context relying primarily on purported public policy grounds framed, for the most part, in terms of a pregnant woman's Canadian Charter rights to liberty and security of the person. A re-examination of just what Canadian Charter values and human rights are at stake in such cases and for whom is a prime focus of the current discussion and analysis. Also addressed is the problem with using the 'born alive rule' to contemplate either a 'continuing tort' (a foetal rights view) or a 'tort perfected in law upon the live birth of the child' perspective in considering whether tort liability should attach for the injuries suffered by the born alive child due to maternal conduct that predated the existence of the child as a legal person under Canadian law. [ABSTRACT FROM AUTHOR]

In its recent decision in Carter v Canada (Attorney General), the Supreme Court of Canada clarified when it is appropriate for courts to reconsider Supreme Court precedent. Accordingly, the Court concluded that a fundamental shift or change in international legal standards that differs from the approach adopted in the original Supreme Court decision is a ground for reviewing previous decisions. In 1999, the Supreme Court concluded that a maternal tort liability does not exist in Canadian common law. This paper will parse whether Canada's approach to maternal tort liability still accords with international legal standards or whether it is time that the issue should be reconsidered by the courts. [ABSTRACT FROM AUTHOR]

It has been increasingly recognised in recent years that domestic violence constitutes a human rights issue. This paper seeks to shed light on the question of how human rights law may be used in the area of domestic violence through the medium of a litigation strategy. The method used is a comparative assessment of the approaches taken towards gender issues by the Constitutional Courts in three states that have famously dynamic judiciaries - India, South Africa and Canada. A number of the obstacles to the effectiveness of human rights law are also examined. [ABSTRACT FROM AUTHOR]

Since the beginning of the twenty-first century, mining industries in post-conflict environments led to the development of an abundance of literature on Canadian imperialism and its negative impact on human rights, especially in Guatemala. However, little knowledge exists on Canada's support of strategic human rights litigation (SHRL) projects for the most vulnerable groups affected by the Guatemalan armed conflict and extractive activities. This article explores this contradictory commitment to SHRL through a case-study of Canada's support of the rule of law in post-conflict Guatemala. This article argues that Canada's participation in Guatemala's securitisation processes demonstrates Canadian economic and security objectives in the extractive sector as well as self-affirmation goals among donors. Based on field interviews and Access to Information requests, this article provides theoretical and empirical insights on SHRL projects in post-conflict countries with extractive resources. [ABSTRACT FROM AUTHOR]

Relying on analysis of Ktunaxa v. British Columbia (2017) and the law and jurisprudence that shaped it, this article assesses the implementation of UNDRIP rights concerning Indigenous sacred sites in Canada. It describes sacred sites and relevant aspects of the UNDRIP and assesses Canadian law and jurisprudence against these. It reaches three main conclusions. First, as interpreted by the courts, the Canadian constitution does not fulfil Canada's UNDRIP obligations concerning sacred sites: whether a group enjoys these rights depends largely upon the legal status of the land on which the site is situated; whether a group can secure these rights depends largely upon how the law treats the group's relationship to its site; and whether the state may limit these rights is determined by reasons that do not satisfy UNDRIP standards. Second, the Canadian Supreme Court's decision to stick with its jurisprudence rather than use Ktunaxa to more closely align Canadian law with the UNDRIP suggests that governments must not rely upon the courts to implement their UNDRIP obligations for them. Thus, third, political actors who seek UNDRIP compliance must take the initiative themselves to address legal imperfections like those identified in this article through regulatory, legislative, and constitutional action. [ABSTRACT FROM AUTHOR]

As of the turn of the twenty-first century, a pregnant woman appears to be excluded from the Canadian private law of civil wrongs when it comes to any wrongfully inflicted harm on her own foetus. This article revisits and examines the images of pregnancy and maternity represented in the judgments in Dobson v. Dobson, a 1999 decision of the Supreme Court of Canada. Against the backdrop of contemporary discussions about surrogacy, the images put forth in Dobson - namely, the expecting woman, the autonomous woman and the woman as mother - represent more generally the co-existing and often entangled pictures with which the law grapples whenever pregnancy and maternity are at stake. This essay explores how we might imagine a more child-focused reflection of issues like those presented in Dobson. Without insisting on the applicability of children's rights as set out in conventions or charters, it is possible to include the interests and perspective of children in a nuanced analysis of law's engagement with pregnancy and maternity that does not compromise or erode women's rights or interests. Indeed, a recognition of children's interests in this context permits a juridical recognition of, and reconciling with, the complex and diverse realities of pregnancy and maternity. [ABSTRACT FROM AUTHOR]

In 1999, the majority of the Supreme Court of Canada held in the case of Dobson (Litigation Guardian of) v. Dobson that public policy concerns indicate that a legal duty of care cannot, and should not, be imposed by the courts upon a pregnant woman towards her foetus or subsequently born alive child. Public policy concerns can in part explain the decision of the Court; however, it also negates the rights of children and disregards their right to a remedy. In arriving at such a decision, the majority of the Court considered comparative law, namely in the United States and the United Kingdom, but surprisingly did not engage in a discussion of international human rights norms. This article aims to fill in this gap by examining international human rights conventions to which Canada is a party that guarantee rights to both (pregnant) women and the born alive child, and how they can inform the debate on maternal tort immunity. By examining international human rights norms applicable in Canada, it becomes clear that maternal tort immunity engages also the rights of children, and it raises the question whether it is time to re-assess the law in Canada. [ABSTRACT FROM AUTHOR]

In this article, we argue that the Canadian land claims process is the product of a series of policies and laws directed at indigenous peoples which both denies them consent over the relinquishing of their lands, and is characterised by a lack of attention to the rights vested in indigenous peoples from colonial precedents. As a result, the contemporary Canadian land claims process does not measure up to the United Nations Declaration on Indigenous Peoples (UNDRIP) and other international human rights protocols. It does not meet even rudimentary standards in regard to providing informed consent, requiring indigenous peoples to extinguish their ownership of their lands, dividing indigenous peoples into configurations that are artificial and diminishing their negotiating power, and creating invidiously asymmetric responsibilities between the state and the indigenous party. Our analysis will principally be based on a reading of the Innu Nation Tshash Petapen (New Dawn) land claims agreement and the social and political contexts in which it is situated. We conclude from our readings that expedients used in the past to obtain indigenous peoples' lands and to circumvent the colonial laws governing relationships with indigenous peoples are still evident today in Canada. They survive as a kind of victor's justice worthy of the frontier. [ABSTRACT FROM PUBLISHER]

Human dignity functions largely as a rhetorical trope in contemporary human rights jurisprudence. In 1999 the Supreme Court of Canada began a jurisprudential experiment in which the concept of dignity was elevated to the status of a legal rule in interpreting the equality rights provision of the charter. Equality rights challenges to laws and programmes were to be judged largely on the basis of the feelings of affront experienced by claimants. This dignity test proved to be highly subjective and hence judicially unmanageable. While the politics of human dignity are effective precisely because rights claims are emotionally charged, a human dignity test based on feelings of affront has operated poorly in the Canadian constitutional context. Canada serves as a cautionary tale in the maturation and institutionalisation of the human rights movement. [ABSTRACT FROM AUTHOR]

All around the world, indigenous peoples struggle to ascertain their rights to the lands they have traditionally occupied. Court litigation is one possibility for indigenous peoples to seek the affirmation of these rights. However, such proceedings present many challenged for indigenous claims, in particular with regard to evidentiary rules. While courts have long favoured the written word, indigenous peoples can often only rely on their oral history and traditions to prove their extensive relationship to the land in question. In order to assess indigenous claims fairly, there is a need for adapting the court procedures and general approach to the specificities of these claims. [ABSTRACT FROM PUBLISHER]

The Supreme Courts of Canada and the US have both adjudicated cases concerning the rights claims of suspected terrorists. While the Canadian Supreme Court adjudicates these cases asking whether the government actions violate the Charter of Rights and Freedoms, the US Supreme Court, in the American tradition, does not look to its Bill of Rights for answers, but rather adjudicates such claims based on a separation of powers framework. This article examines the judicially-created reasoning used to decide security cases in a post-9/11 world in Canada and the United States. I show that while the Canadian experience looks like it is more rights-based, the Canadian Supreme Court, like its American counterpart, looks at the procedure of how the law goes about limiting rights over the substance of the legitimacy of the limit in the first place. I conclude that the two courts end up using similar legal reasoning, despite differing approaches, resulting in each state providing a delicate balance between security and liberty. [ABSTRACT FROM AUTHOR]

Sexual minorities must meet the same evidentiary burden as all other refugee claimants. Independent country information produced by international human rights organisations plays an important role in meeting this burden. However, in the case of gay, lesbian, bisexual, and transgender claimants, existing country documentation still fails to provide the kind of information refugees need to support their claims. This is due to the continual struggle of human rights organisations to properly document abuses against sexual minorities. Also, the legal questions most relevant to claims based on sexual orientation and gender identity have shifted over the last 15 years. Early cases turned on whether a claimant's fear of persecution was well founded or whether the claimants were able to prove their sexual orientation. Recent cases have focused on the distinction between persecution and discrimination, the availability of state protection, and possible regional contrasts in the treatment of sexual minorities within a country. The shift in legal issues requires evidence that is either not available or is not sufficiently focused or detailed to meet the legal requirements of the Canadian refugee determination process. [ABSTRACT FROM AUTHOR]

Focuses on the report "The Responsibility to Protect," by the International Commission on Intervention and State Sovereignty which was set up in 2000 on a Canadian initiative. Strengths and weaknesses of the report; Key contribution of the report; Issue of humanitarian intervention affecting the report; Analysis of the contents of the report.

Explores the lessons that post-apartheid South Africa learned from the international human rights policy of Canada. Comparison between Canada and South Africa; Information on multilateralism; Role of non-state organizations and network in the international human rights work.