Report No. 61 (2008) IACHR. Case No. 12.435 (Canada)

• Case Number: 12.435
• Report Number: 61
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Respondent State: Canada
• Alleged Victim: Gran Cacique Mitchell, Canadá

REPORT Nº 61/08 CASE 12.435 MERITS GRAND CHIEF MICHAEL MITCHELL CANADA July 25, 2008 I. SUMMARY 1. The petition in the present case was lodged with the Inter-American Commission on Human Rights (the "Commission”) against Canada (the "State") on November 26, 2001 by Hutchins Caron & Associés, solicitors and barristers of Montreal, Canada (“the petitioners”). The petition was presented on behalf of Grand Chief Michael Mitchell (“Grand Chief Mitchell”), a citizen and resident of Canada, and a member of the Mohawk First Nations (indigenous) community. 2. The petition states that on March 22, 1988, Grand Chief Mitchell, accompanied by fellow community members, entered Canada from New York, United States of America, at the Cornwall International Bridge with a number of goods destined for the Mohawk territories of Tyendinaga and Akwesasne (in Canada). The Mohawk territory of Akwesasne encompasses portions of the Canadian provinces of Quebec and Ontario and the State of New York in the United States. Upon re-entry to Canada, Canadian customs officials imposed a custom duty of $361.64, on Grand Chief Mitchell which he refused to pay, on the basis of aboriginal and treaty rights under Canadian law. 3. The petitioners allege that Canada has incurred international responsibility for denying Grand Chief Mitchell’s right to bring goods, duty free, across the U.S./Canada border dividing the territory of the indigenous community, for the purpose of trade with other First Nations. Based upon these circumstances, the Petitioner alleges that the State is responsible for a violation of the right to culture set forth in Article XIII of the American Declaration of the Rights and Duties of Man (the “American Declaration”). 4. The petitioners further allege that the “right to culture” includes an Aboriginal right to trade with other indigenous First Nations (which exist on both sides of the Canadian/United States border) without having to pay customs duties to either country. It is alleged that this Aboriginal right is based on historic practices and customs of the indigenous peoples of Canada that existed prior to the arrival of the European settlers. The petitioners contend that Grand Chief Mitchell and the other members of his community are being deprived of the right to bring goods, duty-free, across the Canadian/United States border that divides the Akwesasne territory, and that this prohibition impedes trade among the First Nations in Canada. Trade, it is alleged, is an essential distinguishing element of Mohawk culture and the Iroquois Confederacy, and has historically played a central role in the traditional culture of the Mohawk people. 5. The State denies that it has violated Grand Chief Mitchell’s right to culture under the American Declaration. The State argues that the right to take part in the cultural life of the community does not encompass trade as an aspect of culture, and that Article XIII most certainly does not protect duty-free trade. 6. In Report N° 74/03 adopted by the Commission on October 22, 2003 during its 118th regular period of sessions, the Commission decided to admit the claims in the Petitioner’s petition and to proceed with consideration of the merits of the complaint. 7. In the present report, having examined the evidence and arguments presented on behalf of the parties to the proceedings, the Commission concluded that it was not proven that the State violated Grand Chief Mitchell’s right to culture set out under Article XIII of the American Declaration, in connection with his claim to a right to bring goods, duty free, across the U.S./Canada border, for the purpose of trade with other First Nations. II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT Nº 74/03 8. In Report Nº 74/03 adopted on October 22, 2003, the Commission declared that the petition was admissible in respect of Article XIII of the American Declaration and that it would continue with its analysis of the merits of these claims. Report Nº 7/03 was transmitted to the State and to the petitioners by communications dated October 29, 2003. In accordance with Article 38(1) of the Commission’s Rules of Procedure, the Commission also requested that the petitioners provide any additional observations that they may have on the merits of the case within a period of two months. Pursuant to Article 38(2) of its Rules, the Commission also placed itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter and requested that the parties inform the Commission expeditiously whether they were interested in pursuing a friendly settlement of the case. 9. By letter of November 10, 2003, the petitioners acknowledged receipt of the Commission’s letter of October 10, 2003, and by further letter of November 20, 2003, accepted the Commission’s friendly settlement offer. By communications of November 25, 2003, the Commission acknowledged receipt of the petitioners’ letter of November 20, 2003, and transmitted the pertinent parts thereof to the State, with a request that the State respond within a month. 10. By further letter of November 27, 2003, the petitioners requested an extension of two months to present additional observations on the merits of the petition. By note of December 22, 2003, the State also requested an extension of 60 days to present the observations requested by the Commission. By letter of January 06, 2004, the Commission granted the State an extension of 60 days. By letter of March 04, 2004, the State requested a further extension of 90 days to consider the Commission’s friendly settlement offer, and to have an exploratory meeting with the petitioners. By letter of March 08, 2004, the Commission granted the requested extension. By letter of March 12, 2004, the petitioners indicated that the State had offered to convene an exploratory meeting with the petitioners; in the circumstances, the petitioners requested an extension until June 2004 to present their observations on the merits. By letter of March 16, 2004, the Commission granted the requested extension. 11. By letter of June 08, 2004, the State requested a further extension of six months to respond to the Commission’s friendly settlement offer, with a view to negotiating a friendly settlement of the Petitioner’s petition. By note of June 10, 2004, the Commission granted an extension of three months. 12. On July 01, 2004, the Commission received further observations from the petitioners on the merits of the petition, dated June 30, 2004. By note of September 14, 2004, the State advised of its decision to decline the Commission’s offer to facilitate friendly settlement. By letter of October 06, 2004, the Commission acknowledged receipt of the State’s note, and by letter of October 07, 2004, transmitted the pertinent parts thereof to the petitioners, with a request for response in a month. By note of January 26, 2005, the Commission transmitted the pertinent parts of the petitioners’ observations of June 30, 2004, and requested the State to respond in a month. By note of February 09, 2005, the State requested an extension of six months to present its observations. By letter of March 29, 2005, the Commission granted a one-month extension to the State, and so informed the petitioners, by letter of the same date. 13. By letter of March 23, 2005, the petitioners requested the Commission to grant a hearing at its regular period of sessions scheduled for October 2005. By communication of April 01, 2005, the Commission acknowledged receipt of the petitioners’ letter. By note of May 03, 2005, the State requested a further extension of three months to present its observations. By letter of June 20, 2005, the Commission declined the State’s request, and so advised the petitioners by letter of the same date. By note of June 29, 2005, the State advised that it would present its observations by the end of July 2005. The Commission acknowledged receipt of the State’s note by letter of June 30, 2005. 14. By note of July 27, 2005, the State submitted its observations on the merits of the petition. By letter of August 15, 2005, the Commission transmitted the pertinent parts of the State’s observations to the petitioners, and requested a response within a month. 15. By letter of September 13, 2005, the petitioners requested an extension until the end of November 2005 to submit its response to the State’s observations of July 27, 2005. By reply of September 21, 2005, the Commission granted the petitioners a one-month extension to submit their response, and so advised the State by note of the same date. By letter of October 21, 2005, the petitioners submitted their response to the State’s observations of July 27, 2005. The Commission subsequently transmitted the pertinent parts of the petitioners’ submission to the State by note of November 04, 2005, with a request for a response within a month. In response to the Commission, the State submitted further observations by note of December 07, 2005, the pertinent parts of which were transmitted to the petitioners with a request for response within a month. 16. By letter of January 17, 2006, the petitioners requested the Commission to grant a hearing during its 124th regular period of sessions, scheduled for March 2006. In a subsequent letter of January 30, 2006, the petitioners requested the Commission to schedule a hearing during its 125th regular period of sessions instead, because of the unavailability of counsel for the 124th regular period of sessions. By letter of February 09, 2006, the Commission acknowledged receipt of the petitioners’ correspondence of January 17, 2006 and January 30, 2006, and suggested that the petitioners reconfirm their request at least 40 days before the commencement of the 125th regular period of sessions. 17. ...