R v Hape 2007 SCC 26

Lord Denning outlined the Principles that bind a State even though its

Parliament has not yet acted :

36 The English tradition follows an adoptionist approach to the reception of customary international law. Prohibitive rules of international custom may be incorporated directly into domestic law through the common law, without the need

for legislative action. According to the doctrine of adoption, the courts may adopt rules of customary international law as common law rules in order to base their decisions upon them, provided there is no valid legislation that clearly conflicts with the customary rule: I. Brownlie, Principles of Public International Law (6th ed. 2003),

at p. 41. Although it has long been recognized in English common law, the doctrine received its strongest endorsement in the landmark case of Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.). Lord Denning considered both the doctrine of adoption and the doctrine of transformation, according to which international law rules must be implemented by Parliament before they can be applied by domestic courts.

In his opinion, the doctrine of adoption represents the correct approach in English law. Rules of international law are incorporated automatically, as they evolve, unless they conflict with legislation. He wrote, at p. 554:

It is certain that international law does change. I would use of international law the words which Galileo used of the earth: “But it does move.” International law does change: and the courts have applied the changes without the aid of any Act of Parliament. . . .

. . . Seeing that the rules of international law have changed — and do change — and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this court — as to what was the ruling of international law 50 or 60 years ago — is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change — and apply the change in our English law — without waiting for the House of Lords to do it

CANADA and its SCC are bound by the Doctrine of Adoption, as part of its Common Law, per the SCC in R v Hape :

39 Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation.

12 The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.

What about UNDRIP and ASMIN’s (and Kinakwii) Rights ?

The SCC in R v Hape held that the Adoption principle included both UN -States, and Non-UN States, like Kinakwii and ASMIN :

40 One of the key customary principles of international law, and one that is central to the legitimacy of claims to extraterritorial jurisdiction, is respect for the sovereignty of foreign states. That respect is dictated by the maxim, lying at the heart of the international legal structure, that all states are sovereign and equal. Article 2(1) of the Charter of the United Nations, Can. T.S. 1945 No. 7, recognizes as one of that organization’s principles the “sovereign equality of all its Members”. The importance and centrality of the principle of sovereign equality was reaffirmed by the General Assembly in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970, which expanded the scope of application of the principle to include non-U.N. member states.

A renowned international law jurist, Antonio Cassese, writes that of the various principles recognized in the U.N. Charter and the 1970 Declaration this is unquestionably the only one on which there is unqualified agreement and which has the support of all groups of States, regardless of ideologies, political leanings, and circumstances.

It is safe to conclude that sovereign equality constitutes the linchpin of the whole body of international legal standards, the fundamental premise on which all international relations rest.

Does CANADA or the SCC have any Jurisdiction over a Foreign Indigenous Nation ?

No, per The Comity of Nations.

Does CANADA’s Charter apply to its Officials in a Foreign Indigenous Nation ?

Yes. The SCC in R v Hape went on to discuss how Charter Rights, here S. 25, bind the Crown in a Foreign Jurisdiction :

55 This Court has also looked to international law to assist it in interpreting the Charter . Whenever possible, it has sought to ensure consistency between its interpretation of the Charter , on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other. For example, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1056, Dickson C.J., writing for the majority, quoted the following passage from his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 349:

The content of Canada’s international human rights obligations is, in my view, an important indicia of the meaning of the “full benefit of the Charter ’s protection”.

I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents, which Canada has ratified.

Yes, per the holding of SCC n R v Khadr :

This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter , contrary to the principles of fundamental justice.