A User Guide for Land Defenders: The UN Committee on the Elimination of Racial Discrimination (CERD)

Treaties, Rights and Title

A User Guide for Land Defenders: The UN Committee on the Elimination of Racial Discrimination (CERD)

March 19, 2021 | by Shiri Pasternak, Anne Spice and Emma Feltes

Canada always looks for ways to deny the inherent rights of Indigenous peoples. But, internationally, it’s a different story.

Self-determination is a well-established principle of international law. That is why Indigenous nations and groups have used international human rights mechanisms like the United Nations Committee on the Elimination of Racial Discrimination (CERD) for years to assert their rights, build political leverage, demand accountability, and access enforcement mechanisms.

But most of all, Indigenous Peoples, as Arthur Manuel often said, can’t “cry on the shoulder of the guy who took your land.” That guy can change things but won’t, because, well, he has your land. You have to speak to his manager.

Which is exactly what Indigenous groups have been doing. In December 2019, CERD responded to urgent reports filed by the Wet’suwet’en, Secwepmec, and Dunne-za and Cree groups facing immediate threat from resource extraction and development on their lands.

CERD’s harshly worded decision called upon Canada to immediately suspend construction on, respectively, the Coastal GasLink pipeline, Trans Mountain pipeline, and the Site C dam until the free, prior and informed consent of the people could be obtained.

The Committee also told Canada to get some adults in the room, encouraging “the State party to seek technical advice from the United Nations Expert Mechanism on the Rights of Indigenous Peoples.” Canada now has to respond to this decision when it reports to the Committee at the end of this year.

Advocating to CERD has been effective for these groups, but navigating this system can seem hard from the outside. Download a PDF version of this guide for facts on what it does and how it actually works. We answer the following questions:

What is CERD?
How is CERD different from other UN mechanisms available to Indigenous Peoples?
What is the periodic review?
What is EWUAP? What are other ways to participate?

Canada seems to ignore CERD. Why keep submitting to them?

Over the last 12 years, CERD has been strong in its condemnation of Canada’s violations against Indigenous peoples, yet Canada’s responses fall far short of its requests to address them. In its most recent letter to CERD, for example, it seems as though Canada is relying on the forthcoming legislation on UNDRIP (BILL C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples) to defend itself against all charges. Yet, this act does nothing to address the impacts of Site C dam, the Trans Mountain pipeline, and Coastal GasLink pipeline, and the convention and rights violations CERD has raised with respect to these projects.

If Canada is going to continue to ignore CERD, dodge its concerns, and claim progress through wildly insufficient and incremental policy change, what’s the value in continuing to pursue recourse through them?

Canada does not like to be embarrassed internationally — especially Trudeau
Canada likes to promote a reputation for fairness and equality; even if it does not respond to CERD’s requests, there are consequences and ripple effects in public and international opinion
This is an opportunity to amplify Canada’s failures through local and international media
Canada repeatedly vies for a seat on the UN Security Council; this is one way to expose to the UN Canada’s failures to implement international law on its own turf
If Canada continues to ignore CERD’s substantive concerns, it will be in violation of the Convention; this could result in severe international consequences. In its mandate, CERD can launch a dispute resolution mechanism, make recommendations to the UN General Assembly on Canada’s non-compliance, and even refer the issue to the Special Committee on Decolonization — all things unprecedented for Canada, and all things Canada does not want

A key reason for Indigenous peoples to go to the United Nations is because Indigenous peoples are open targets for human rights violations with no protection from the Canadian state. There are multiple other human rights mechanisms through the United Nations that may also be accessed. But alongside the UN system, we must build international solidarity movements to watch all the watchers and protect inherent Indigenous rights.

Citation: Pasternak, Shiri, Anne Spice and Emma Feltes. “A User Guide For Land Defenders: The UN Committee On The Elimination Of Racial Discrimination (CERD)” Yellowhead Institute, 19 March 2021, https://yellowheadinstitute.org/2021/03/19/cerd-user-guide-for-land-defenders/

Shiri Pasternak

@shiripasternak Shiri is an Assistant Professor in Criminology at Ryerson University in Toronto, co-founder and Research Director (2018-2021) of the Yellowhead Institute. She is the author of the award-winning book Grounded Authority: the Algonquins of Barriere Lake Against the State. Her current research involves studying the risk of Indigenous rights in the natural resource extraction economy.

Anne Spice

@anne_spice Anne Spice (she/they) is a Tlingit member of Kwanlin Dun First Nation, a queer Indigenous feminist and anti-colonial organizer, acting Assistant Professor in the Department of Geography and Environmental Studies at Ryerson University, and Associate Fellow at Yellowhead Institute. Her work is in the tradition of feminist activist ethnography, and supports Indigenous land defense against settler state and extractive industry invasion.

Emma Feltes

@EmmaFeltes Emma Feltes (she/her) is a PhD candidate in the Department of Anthropology at the University of British Columbia. She is a settler scholar, writer, organizer, and policy analyst. Her current research focuses on the patriation of Canada's Constitution, the making of section 35, and transnational anti-colonialism. As an affiliate with the Indigenous Network on Economies and Trade, she has supported Secwepemc and Wet'suwet'en land defenders on numerous submissions to the United Nations.

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