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In the panel on “Highlights of 2015 from The Canadian Yearbook of International Law” at the 44th Annual Conference of the Canadian Council on International Law the panelists observed the increasing transnationalization and internationalization of Canadian jurisprudence, suggesting both the strong forces of globalization and a warming relationship between Canadian domestic law and international law.

This was particularly observed in the integration of international law in decisions. It was interesting to juxtapose the 1999 decision of Baker v. Canada (Minister of Citizenship and Immigration)[1]to this year’s case of Hupacasath First Nation v. Canada (Attorney General).[2] At the time Baker was considered a groundbreaking though somewhat controversial decision on the relationship between Canadian and international law. The majority judgment of the Court took into consideration the UN Convention on the Rights of the Child in a deportation case, despite the fact that although Canada had ratified the Convention, the Convention had not been explicitly implemented into domestic law through legislation. Notwithstanding the lack of  implementation,  the majority held that the values reflected in this Convention and other international human rights instruments should be taken into account in assessing the best interests of the child in the course of an immigration officer’s review of humanitarian and compassionate grounds prior to deportation of a parent.

Compare this to Hupacasath, in which the Court extended the Crown’s duty to consult with First Nations to a bilateral investment treaty between Canada and the People’s Republic of China. The Crown had argued that the subject-matter, i.e. bilateral treaty-making, because it was policy-oriented and concerned with foreign relations, was not justiciable or appropriately reviewable in a court of law.  Citing a case that was fundamentally about international law (that pertaining to secession of Quebec from the rest of Canada), the Federal Court noted:

In judicial review, courts are in the business of enforcing the rule of law, one aspect of which is “executive accountability to legal authority” and protecting “individuals from arbitrary [executive] action”: Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paragraph 70 (cited at paragraph 66).   

The court observed that the scope of non-justiciability is very small and was not applicable to this case. The court noted that the duty to consult aims to protect Aboriginal rights while balancing countervailing Crown interests and to recognize that actions affecting unproven Aboriginal title can have irreversible adverse effects not in keeping with the honour of the Crown (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council at paragraph 46). On the facts, however, the Federal Court had concluded that the potential adverse effects the Agreement might have upon the appellant’s Aboriginal rights were “non-appreciable” and “speculative” and so the duty to consult did not arise.  The Federal Court of Appeal saw no basis to interfere with these findings of fact.

The Federal Court of Appeal ruling is significant for affirming that the duty to consult extends to international agreements.  Like Baker, this ruling reinforces the fact that international law is capable of having a powerful influence on the domestic legal order. If Baker was a pioneering decision, Hupacasath shows the depth of integration of international law into the Canadian legal order today.  Thus it now appears that the universality of human problems, the domestic implications of cross-border activities and the legal tools that exist to address such transnational cases, have indeed become part and parcel of our legal discourse in courts, law school classrooms and government agencies alike, just as Philip Jessup[3] in his Storrs Lectures on Transnational Law predicted some sixty-one years ago.

[1] [1999] 2 S.C.R. 817

[2] 2015 FCA 4

[3] Jessup, Philip Caryl. Transnational law. Yale University Press, 1956.

If Baker was a pioneering decision, Hupacasath shows the depth of integration of international law into the Canadian legal order today.
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  • Oonagh E. Fitzgerald was director of international law at CIGI from April 2014 to February 2020. In this role, she established and oversaw CIGI’s international law research agenda, which included policy-relevant research on issues of international economic law, environmental law, IP law and innovation, and Indigenous law.