United Nations Convention on the Rights of the Child (CRC)

CRC General Comment No. 11 on the Rights of Indigenous Children (2009)

CRC Four Guiding Principles

Although the CRC contains special provisions regarding aboriginal children, the Convention is indivisible and these particular guarantees should be considered in light of the all the other rights contained therein, including the foundational principles underlining the rights of all children. Indigenous children are among those children who require positive measures regarding the implementation of the four general principles:

Article 2 - Non-Discrimination

• Special attention must be paid to the guarantees in Article 2 of the CRC and the obligation of the State to eliminate conditions that cause discrimination in order to ensure that Indigenous children enjoy the rights under the Convention on an equal level with other children.
• Aboriginal children often experience overlapping sources of discrimination. To this effect, data collection by the government needs to be disaggregated in order to identify existing and potential areas of discrimination of indigenous children. Addressing discrimination may also require changes in legislation, administration and resource allocation, as well as educational measures to change attitudes.
• Aboriginal children require positive measures in order to eliminate conditions that cause discrimination and to ensure their consideration in applying the rights of the Convention. These measures may require changes in legislation, administration and resource allocation, as well as educational measures to change attitudes.

Article 3 - Best Interests of the Child

• The principle of the ‘best interests of the child’ should be considered in light of the cultural and collective rights of the individual aboriginal child.
• In judicial or administrative decisions regarding the individual child, it is typically the best interests of the specific child that is the primary concern. However, the UN Committee states that considerations of the collective cultural rights of the aboriginal child is part of determining the child’s best interests. It must be noted that the best interests of the child can never be neglected or violated in preference for the best interests of the group.

Article 6 - Life, Survival and Development

• The Preamble of the CRC stresses the importance of the traditions and cultural values of each person, particularly with reference to the protection and harmonious development of the child.
• With respect to the right to survival and development and the right to an adequate standard of living set out in Art. 6 and 27 of the CRC, the Committee on the Rights of the Child notes with concern the disproportionately high numbers of indigenous children living in extreme poverty, the high rated of infant and child mortality, malnutrition and diseases among indigenous children.
• States should assist parents and others responsible for the indigenous child to implement these rights by providing culturally appropriate material assistance and support programmes, particularly with regard to nutrition and housing.
• In the case of Indigenous children whose communities retain a traditional lifestyle, the use of their traditional territories and resources is of significant importance to their development and enjoyment of culture. The Preamble of the CRC stresses the importance of the traditions and cultural values of each person, particularly with reference to the protection and harmonious development of the child.

Article 12 – Participation

• Importantly, the UN Committee notes that as regards legislation, policies and programmes that affect indigenous children in general, the indigenous community should be consulted and given an opportunity to participate in the process on how the best interests of indigenous children in general can be decided in a culturally sensitive way. Such consultations should, to the extent possible, include meaningful participation of indigenous children.
• The right to be consulted is a fundamental right enshrined in article 19 of the Declaration which states that: “[s]tates shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
• As expressed by the UN Special Rapporteur on the Rights of Indigenous Peoples, participatory rights, articulated through the principle of free prior and informed consent are “aimed at reversing the historical pattern of exclusion from decision-making and to avoid the future imposition of important decisions on indigenous peoples.” (James Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, UN Doc. A/HRC/12/34 (2009), para. 41)
• Procedurally, this requires broad disclosure of information that allows aboriginal peoples to understand the risks involved and to participate meaningfully in the decision-making process. Where consensus is not achieved, there is a strong presumption that the state should not move forward with the proposed action, unless the concerns of the peoples involved have been meaningfully accounted for and accommodated.
• With respect to the right to be heard guaranteed in Article 12 of the CRC, the Committee notes that in the case of the aboriginal child, this right requires access to culturally appropriate interpretation and access to information in their own languages. The right to be heard for Indigenous children also includes the right to have Elders be heard. When the right is applied to indigenous children as a group, the State party plays an important role in promoting their participation and should ensure that they are consulted on all matters affecting them. The State party should ensure that this principle is applied in particular in the school environment, alternative care settings and in the community in general.

Additional CRC Substantive Articles

Article 30 - The right to culture, religion and language

• Article 30 of the Convention states that “[i]n those States in which ethnic, religious, or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion or to use his or her own language.”
• The rights established in Article 30 are conceived as being both individual and collective and are an important recognition of the collective traditions and values in distinct Indigenous cultures.
• Although, Article 30 does not make explicit the important relationship between Indigenous culture and the natural environment, the right to culture for Indigenous children is often closely related to the use of traditional territories and the quality of the environment in which they live. Along with the right to culture is the right to land.
• This has been clearly recognized in article 25 of the UNDRIP which provides for the right of Indigenous peoples “to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”
• The UN Human Rights Committee has also noted in its General Comment No. 23, that culture manifests itself in many forms, including a particular way of life associated with the use of land and resources, especially in the case of indigenous peoples.^Footnote1
• Cultural practices are not protected under Article 30 if deemed prejudicial to the child’s dignity, health and development. This raises an important consideration of who decides what is or is not prejudicial to Indigenous children.

Article 29 - The right to education

• Article 29 states that a child’s education should be directed to “the development of respect for the child’s ... own cultural identity, language and values” as well as to the “development of respect for the natural environment.”
• Education programmes for Indigenous children should be developed by Indigenous experts and in cooperation with all peoples concerned in order to address the best ways in which to ensure Indigenous children have a healthy, motivating learning environment according to their own values and rich appreciation of education.
• The school cycle should take into account cultural practices as well as ceremonial periods.
• Indigenous children have the right to be educated in their own language, in addition to the official language of the country, in a culturally sensitive environment and with the use of culturally appropriate curricula.

Article 5 – Extended family involvement

• Article 5 of the CRC is also particularly significant for Indigenous children. Informed by the cultural and social environment of Indigenous communities, this provision recognizes “the responsibilities, rights and duties” of the members of the extended family or community to provide “appropriate direction and guidance” in the exercise by the child of his or her rights, where this is “provided for by local custom”. While this article refers to the rights of the individual child, it clearly acknowledges the important role played by the group into which the child was born in protecting and promoting these rights.

Article 17 – Media’s regard for indigenous children

• Canada is to ensure that children have access to information aimed at their social, spiritual and moral well-being and mental and physical health and to this end will encourage the media to disseminate information of cultural benefit and have particular regard for the linguistic needs of indigenous children.
• The UNDRIP should also be referred to in conjunction with the CRC, as together, these two instruments draw special attention to the principles which provide guidance on how to interpret domestic law and its application to Indigenous children and communities.

United Nations Declarations on the Rights of Indigenous Peoples (2007)

This Declaration is  most comprehensive international instrument for Indigenous peoples’ distinct rights and the corollary States Parties’ obligations.

• Article 7 is express in providing that Indigenous peoples will not have their children forcibly removed from their care and placed in the care of another group.
• Article 21 recognizes Indigenous peoples’ right to maintain and develop their political, economic and social systems or institutions and engage freely in their traditional and economic activities, and improve their economic and social conditions, and requires States Parties to take steps to assure improvements with special attention to the rights and special needs of Indigenous children among others.
• Article 22 requires that particular attention is paid to the rights and special needs of Indigenous youth and children in the implementation of the Declaration, and that States Parties work with indigenous peoples to ensure Indigenous children enjoy the full protection and guarantees from all forms of violence and discrimination.
• Article 43 enshrines the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” Of particular importance is the affirmation of indigenous peoples’ right to self-determination. “By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (art. 3).
• Articles 25 and 26 further recognize Indigenous peoples’ rights to their traditional lands and resources (art. 26) and the distinctive spiritual connection that aboriginal people have with the land and its fruits (art. 25). It also highlights the right of Indigenous peoples to determine and develop their own priorities and strategies for the development or use of their lands or territories and other resources (art 32).
• Article 31 -The UNDRIP goes on to guarantee the rights of Indigenous peoples to enjoy and practice their cultures and customs, their religions, and their languages (art.31), and to develop and strengthen their economies and their social and political institutions.
• The UNDRIP emphasis on group rights, including the right to self-governance, communal property, religious identity, culture and knowledge and control over their own educational systems differentiates it from other UN human rights declarations or treaties which focus on individual and state rights.
• Article 19 - The UNDRIP also sets out corollary obligations for States. Of particular importance is article 19 which states that states “shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”.
• Although the UNDRIP addresses the rights of aboriginal peoples in general, several articles of the UNDRIP contemplate more specifically the rights of aboriginal children. In particular the Declaration recognizes “the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights” (Preamble), the right of aboriginal children to be protected from economic exploitation and any work that may interfere with a child’s education or development (art. 17); the right of aboriginal children to know and benefit from their history, languages, oral traditions, philosophies, writing systems and literatures (art. 13); the right to education without discrimination and access to an education in their own culture and provided in their own language (art.14).
• Furthermore, many of the rights covered under the Declaration have attained the status of customary international law. The UN Special Rapporteur on the rights of Indigenous peoples and the Inter-American Commission has maintained that, in light of the gradual emergence of international consensus on the right of indigenous peoples to their traditional lands, such rights are now part of customary international law.^Footnote2
• The Canadian Parliament adopted the UNDRIP in 2010 although, with reservations to the effect that the UNDRIP is not a binding document and does not represent customary international law, nor change Canadian laws.^Footnote3 Despite these reservations, it is clear however, that the UNDRIP is well informed by international law and appears to represent the interpretations of the UN human rights supervisory bodies on their respective treaties with relation to indigenous rights.

Other International Human Rights Instruments

• In addition to the CRC and UNDRIP, various human rights treaties have played an important role in addressing the situation of Indigenous children and their right not to be discriminated against, namely: Once ratified, Canada has legally binding obligations, and must implement the rights and liberties protected by those Treaties into its national jurisdiction.
  • International Convention on the Elimination of all forms of Racial Discrimination, 1965 (ICERD)
  • International Covenant on Civil and Political Rights, 1966 (ICCPR)
  • International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)
• ICERD Article 2 calls upon States to take measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them and thus ensure the full and equal enjoyment of their human rights. Additionally, Article 5 calls upon States to guarantee to everyone, without distinction, their civil rights and their economic, social and cultural rights.
• ICCPR, contains among others, articles on the right to protection from discrimination (art. 24, 26) as well as the right to self-determination for all peoples (art. 1). Article 27 provides that “[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” The Human Rights Committee has decided that indigenous peoples are covered by this article, even though they may not necessarily be a true ‘minority’ of a population.
• The ICESCR includes articles on the rights of children to protection and assistance without discrimination (art. 2, 10), the right to education that promotes “understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups” (art. 13), and the right to take part in cultural life (art. 15) together with the responsibility of States to conserve, develop and diffuse culture (art. 15).
• The International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989 contains provisions which advance the rights of Indigenous peoples and specifically highlights the rights of Indigenous children in the area of education.
  • Article 28 States that Indigenous children “shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.”
  • Article 29 also relates to the potential of education to promote multiculturalism: “[t]he imparting of general knowledge and skills that will help children belonging to the peoples concerned to participate fully and on an equal footing in their own community and in the national community shall be an aim of education for these peoples.”
• To date this is the only legally binding instrument of international law that deals exclusively with the rights of Indigenous peoples. Although Canada is not a party to this Convention, it is worth mentioning, as many of its provisions are said to represent customary international law.
• In Spraytech,^Footnote4 the Supreme Court of Canada clearly established that principles of international law – even those that are not directly binding on Canada - may legitimately be taken into account when interpreting domestic law. Therefore, interpretive presumption of conformity requires administrative officials and courts to interpret domestic law in a manner that respects Canada’s international legal obligations.