COHRE Housing and ESC Rights Law Quarterly Vol4 No.2 2007

housing and esc rights law Centre on housing rights and evictions

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Vol. 4 - Nos. 2 & 3 December 2007

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and ESC rights.

A New Day for Anti-Discrimination Law in Europe: D.H. and Others v. Czech Republic

By Claude Cahn 1 The European Court of Human Rights’ Grand Chamber ruling in D.H. and Others v. The Czech Republic2 on 13 November 2007 made international headlines. The 15judge Grand Chamber (‘the Court’) overturned an earlier ruling by a Court Chamber of 7 judges. In doing so, the Court found that the Czech Republic had violated provisions of the European Convention on Human Rights (ECHR), which prohibit discrimination in education. The case concerned the systemic placement of Romani children in schools for the mildly mentally disabled. The decision will have very significant implications for combating discrimination

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and ensuring the effective protection of economic and social rights in Europe. Its impact will be particularly significant in light of the recent coming into force of Protocol 12 to the European Convention on Human Rights, which provides a comprehensive ban on discrimination in the realisation of any right secured by law.

The Lawsuit The lawsuit was brought by the European Roma Rights Centre on behalf of 18 Romani children who had been placed in so-called ‘special schools’ or ‘remedial special schools’ for the mildly mentally disabled in Ostrava, the Czech

Republic’s third city. The complaint was brought before domestic tribunals in 1999. In 2000, the applicants’ Constitutional Court complaint was dismissed and they filed a claim at the European Court of Human Rights.

The complaint relied extensively on statistical data gathered in Ostrava during the 1998/1999 school year, showing that, during that year: • Over half of the Romani child population was schooled in remedial special schools, of which there were eight in Ostrava;

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Head of Advocacy Unit, Centre on Housing Rights and Evictions, claudecahn@cohre.org. Previously, Programmes Director, European Roma Rights Centre (1996-2007).

(Application no. 57325/00), Judgment 13 November 2007.

1 • A new day for anti-discrimination law in Europe: D.H. and Others v. Czech Republic

2 • Editorial

6 • Indigenous rights and the right to culture in Canada

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• South Africa: the role and obligations of the state in relation to eviction proceedings instigated by non-state actors

• Round-up of recent decisions in ESC rights cases

7 • Establishing a right to collective bargaining under the Canadian Charter of Rights and Freedoms

11 • Cases to watch

12 • Events

This publication has been made possible with the support of the United Nations Housing Rights Programme, www.unhabitat.org/unhrp The views expressed in this publication are not necessarily shared by the UN or by UN-HABITAT ISSN 1812-240 X

Editorial This double edition of the Quarterly deals with a wide range of economic, social and cultural rights issues.

It opens with an analysis by Claude Cahn of a recent decision of the European Court of Human Rights on indirect discrimination in the field of education. This is followed by casenotes on two Canadian decisions. One centres on indigenous peoples’ rights and the right to culture, while the other looks at the right to collective bargaining under the Canadian Charter of Rights and Freedoms. The next casenote focuses on a decision of the South African High Court on the role and obligations of the State in relation to eviction proceedings instigated by private actors. The round-up of recent decisions includes details of the granting of an interim measure by the Southern African Development Community Tribunal (SADCT) in the first case to be tried by that body. There is also an account of a US federal court decision involving the invalidation of ordinances passed by a city council aimed at limiting the housing and work rights of undocumented aliens. This edition features two cases to watch.

The first is a complaint with regard to forced evictions that is currently before the World Bank Inspection Panel, while the second is litigation seeking the enforcement of the right to water in South Africa.

We are thankful to the Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, for providing the necessary funding to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure the widest possible distribution.

For additional information on the justiciability of ESC rights, see www.cohre.org/litigation and the Case Law Database at www.escr-net.org.

We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications. Please feel free to contact us at: quarterly@cohre.org

» • Over half of the population of remedial special schools was Romani; • Any randomly chosen Romani child was more than 27 times more likely to be placed in schools for the learning disabled than a similarly situated non-Romani child; • Even where Romani children managed to avoid placement in remedial special schooling, they were most often schooled in substandard and predominantly Romani urban ‘ghetto’ schools.

Romani children in regular primary education in Ostrava (i.e., in the 70 standard primary schools) were heavily concentrated in 3 primary schools; • 32 of 70 primary schools in Ostrava had not one single Romani pupil and, as a result, 16,722 non-Romani children attended school every day without a single Romani classmate.

These figures were not markedly different in other areas of the Czech Republic. High-ranking Education Ministry officials stated that, nation-wide, 75% of Romani children were in special schools. Research also revealed that there was no significant over-representation of Romani children in schools for the severely mentally disabled.

Extensive research by the European Roma Rights Centre documented the fact that the institution of ‘remedial special schools’ for the mildly mentally disabled had become a mode of dismissing Romani children from mainstream education.

In the standard case, a Romani child entering school would be assumed by school administrators to be doomed to inevitable scholastic failure. She would then be subjected to a battery of tests, generally at an extremely early age. The tests themselves are usually unavailable to the lay person. Only a psychologist may have access to them.

However, testimony by children subjected to such testing, as well as physical copies of the tests themselves secured during research, indicated that the tests were awash in cultural presumptions. In many cases, the interaction between the (non-Romani) testing psychologist and the Romani child would be the first time the child at issue had ever met a non-Romani person. Armed with the test results, school administrators would put parents under intense pressure to agree to special school placement. Since schooling in mainstream education often means going to school with abusive non-Romani children, school administrators would simultaneously be communicating an intention not to protect Romani children from racist abuse inside and outside the classroom. Convinced that, indeed, their children would be ‘happier’ in special schools, all but the most determined parents capitulated.

Once placed in such schools, no viable possibilities existed for children to be transferred back to the normal system. Indeed, there was evidence that after six months of substandard education in the special schools system, children placed in such schools were significantly behind children being educated in standard schools.

Graduates of special schools were barred from going on to secondary education, and faced extremely diminished life chances.3

3

Complete research results appear in European Roma Rights Centre, A Special Remedy: Roma and Schools for the Mentally Handicapped in the Czech Republic, Country Reports Series No, 8, June 1999.

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The Court’s Approach The European Court of Human Rights has traditionally struggled to address racial discrimination.

Until early 2004, the Court had never found a violation of the Article 14 ban on discrimination in a case involving an allegation of racial discrimination. Although the Court had repeatedly called racial discrimination a “particularly invidious” form of discrimination, it nevertheless displayed great difficulty in actually identifying any such discrimination. Before a fundamental shift at the Court in 2004, only two positive rulings on racial matters existed and neither involved findings of violations of the under the Article 14 non-discrimination provision.4 By the early 1980s, the Court had made noteworthy strides in developing jurisprudence to address social rights issues under the European Convention on Human Rights, a treaty with a distinctly civil and political rights bent.

Only one social right – the right to education – is explicitly protected under the European Convention.

Nevertheless, in a case involving Ireland, the Court came close to holding that poverty could be a ground of discrimination.5 In 1995, the Court dealt with the issue of discrimination in the context of social security benefits.

Here, Austria had refused to provide unemployment benefits to laid-off Turkish workers. Working creatively with the Convention’s narrow provisions, the Court held that unemployment benefits were “possessions” in the sense of the Article 1 of Protocol 1 guarantee

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of the “peaceful enjoyment of one’s possessions” and that the Austrian government’s criteria of allocating such worker protections solely on the basis of nationality was arbitrary and illegal, infringing the Convention’s Article 14 ban on discrimination.6 In 2000, the Court held that a failure to treat differently situated people differently also constituted a violation of the Convention.7 Numerous cases have repeatedly affirmed the Court’s fundamental approach to discrimination, namely that: “According to the Court’s caselaw, a difference of treatment is discriminatory for the purposes of Article 14 of the Convention if it ‘has no objective and reasonable justification’, that is if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.”8 To date, however, the Court appears to have been utterly flummoxed by the mechanics of racial discrimination as it exists in practice. In all of the aforementioned cases, the Court was presented with legal provisions or regulations which gave rise to obvious and evident different treatment.

For example, in the Willis decision quoted above, the UK provided widows’ pensions to women, but made no similar provision for men.

When presented with a case in which a man had given up work to care for his dying wife and, following her death, remained in parttime work to take care of their

children, the Court could see no “objective and reasonable justification” for treating men and women differently. Therefore, it found the UK to be in violation.

However, Roma - like members of many other groups labouring under stigma in Europe - are generally not treated differently because of rules, regulations or laws that are discriminatory or anti-Romani on their face (although in some cases they may be). By far the most frequent form of discrimination is the kind not set out in law.

Rather, it is that arising from the coalescing of different peoples, in a situation of very disproportionate power, distributed along the axis of ‘white/non-white’. It is the elusive problem of racial animus – a phenomenon dogged by denial – and its expression in racial discrimination arising to thwart fundamental human rights, which has given the Court so much trouble. The Court has haltingly overcome these issues in a series of cases involving violence.9 D.H. and Others v. Czech Republic (‘D.H.’) is the first case to test these issues in an economic and social rights context.

The Chamber Ruling In a terse 6-1 ruling delivered in February 2006 (nearly seven years after the applicants first lodged their claim), the Chamber rejected the complaint of the petitioners.

The Court held, among other things, that, “the Government have (sic) … succeeded in establishing that the system of special schools in the Czech Republic was not introduced solely to cater for Roma children”. In doing so, the Court observed “that the rules govern-

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The Court and European Commission of Human Rights, a now-defunct tribunal of first instance, had twice held that racial discrimination amounted to cruel and degrading treatment banned under Convention Article 3 (see East African Asians v. United Kingdom, (Application Nos. 4403/70, 4423/70, 4434/70, 4443/70, 4476/70-4478/70, 4486-70, 4501/70 and 4526/70-4530/70 (joined), Report adopted by the Commission on 14 December 1973; as well as Cyprus v. Turkey, (Application no. 25781/94), 10 May 2001.

Airey v. Ireland, (Application no. 6289/73), 9 October 1979. The Court has elsewhere worked on social and economic rights issues, via the filters of European Convention rights such as the right to private and family life (Article 8), as well as via procedural and remedial rights such as those set out in Articles 6 and 13. However, in key cases such as Hatton and Others v. United Kingdom (Application no.

36022/97), 8 July 2003, it has allowed the state broad scope to intrude on individuals’ rights, where interests such as development of the national economy are at issue.

See Gaygusuz v. Austria, (Application no. 17371/90), 31 August 1996.

Thlimmenos v. Greece, (Application no. 34369/97), 6 April 2000.

Willis v. United Kingdom, 35 EHRR 21 (2002), p. 559, para 39.

See, progressively, Nachova & Others v. Bulgaria, (Applications nos. 43577/98 and 43579/98), Chamber and Grand Chamber decisions of 26 February 2004 and 6 July 2005 respectively; Bekos and Koutropoulos v. Greece (Application no. 15250/02), 13 December 2005; and Secic v. Croatia (Application no. 40116/02), Judgment 31 May 2007.

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» ing children’s placement in special schools do not refer to the pupils’ ethnic origin”.10 These considerations were apparently sufficient to avert a Convention violation.11 Apart from its failure to deliver justice to the applicants, the Chamber ruling was particularly worrying in light of the recent entry into force of Protocol 12 to the European Convention. Protocol 12 supplements the existing Article 14 ban on discrimination – a prohibition on discrimination in access to any European Convention right – with a comprehensive ban on discrimination in the exercise of any right secured by law.12 The applicants in D.H. relied on Article 14, as Protocol 12 was not yet in effect when the lawsuit was brought.

However, as the case was centred on the Convention’s only social right, the Chamber’s decision seemed likely to provide an important marker for future Protocol 12 jurisprudence in economic and social rights areas. In particular, the case tested the Court’s willingness to address matters such as disparate impact or indirect discrimination. The Chamber judgement seemed to indicate a future of constricted, formalistic Court interpretations of discrimination - an approach which would nullify the possibility of a remedy in all but the most egregious cases.

Careful governments and others were arguably given a license to discriminate at will, provided that they did so subtly.

The Ruling by the Grand Chamber In an astounding reversal, the Grand Chamber announced on 13 November 2007 that it had, by a vote of 13-4, overturned the Cham-

ber decision. It found the Czech Republic to be in breach of Article 14 of the Convention (prohibiting discrimination), taken together with Article 2 of Protocol 1 to the Convention (securing the right to education). The Court awarded 4,000 Euros to each of the applicants in respect of non-pecuniary damage and 10,000 Euros jointly for costs and expenses. A large number of aspects of the Court’s 90-page verdict are noteworthy.

First and foremost is the enriched interpretation that the Court provides to the Convention ban on discrimination, particularly racial discrimination. The considerably more developed European Union law ban on racial and other forms of discrimination is imported into the Court’s case law through a recital covering paragraphs 81-91 inclusive. Crucial in this transposition are: (i) the relationship between the Convention ban on discrimination (described above) and the concept of ‘indirect discrimination’, which in an EU law context “shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”;13 (ii) the question of the burden of proof, which in an EU law context shifts to the purported violator in a case of prima facie discrimination; and

(iii) the role of statistics as a method of establishing discrimination before a tribunal.

Concerning the burden of proof, the Court held that, “[w]here an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory ... Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case …, it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof.”14 In the D.H. case, the Court went on in fact to find the burden of proof as residing with the Czech government.15 The Court then turned to the issue of the use of statistical data as a method of proving racial discrimination, particularly in the context of an allegation of indirect discrimination. Quoting an earlier sex discrimination decision,16 the Court stated that where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, “it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in

10 European Court of Human Rights, Second Section, Case of D.H. and Others v. the Czech Republic, (Application no. 57325/00), 7 February 2006, paras 48 and 49.

11 For an analysis of the Chamber ruling, see C. Cahn, ‘The Elephant in the Room: On Not Tackling Systemic Racial Discrimination at the European Court of Human Rights’, in (2006) European Anti-Discrimination Law Review 13, available at: http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/06lawrev4_en.pdf 12 Protocol 12 entered into effect on 1 April 2005. It has thus far been ratified by 15 states, and signed but not yet ratified by a further 22.

13 EU Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 2.

14 Grand Chamber Decision, para 189.

15 Ibid, para 195.

16 Hoogendijk v. the Netherlands, (Application no. 58461/00), 6 January 2005.

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practice extremely difficult for applicants to prove indirect discrimination.’”17 The Court went on to rule that, “the Court considers that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence.”18 As to the role of intent in proving racial discrimination, “[t]he Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group.19 “Where it has been shown that legislation produces such a discriminatory effect, the Grand Chamber considers that, as with cases concerning employment or the provision of services, it is not necessary in cases in the educational sphere … to prove any discriminatory intent on the part of the relevant authorities”.20 In addition to the foregoing, a number of further elements of the Court’s ruling are worthy of mention here: Non-waiver of right not to suffer discrimination: “As regards parental consent, the Court notes the Government’s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such

17 18 19 20 21 22 23 24 25 26

consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court’s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent … and without constraint ….”21 “In view of the fundamental importance of the prohibition of racial discrimination, the Grand Chamber considers that, even assuming the conditions referred to in paragraph above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted …”.22 Recognition of the ‘Gypsy’ stigma attaching to Roma, independent of any desire or affirmation on the part of the individual person concerned: “Although they have been in Europe since the fourteenth century, often they are not recognised by the majority society as a fully-fledged European people and they have suffered throughout their history from rejection and persecution …

As a result of centuries of rejection many Roma communities today live in very difficult conditions, often on the fringe of society in the countries where they have settled, and their participation in public life is extremely limited.”23 Renewed affirmation of existing case law on the need to give particular policy attention to Roma/ Gypsies, as a result of their vulnerable position: “… as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different life-

style both in the relevant regulatory framework and in reaching decisions in particular cases ...”24 Renewed affirmation of the value of minority rights: “In Chapman… the Court also observed that there could be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.”25 This recognition was welcome, in that the Court’s endorsement of minority rights appeared to have been put into cold storage since it first established its views in this area in the 2001 decision in Chapman v.

United Kingdom.26 Affirmation of the principle of informed consent: “The Government themselves admitted that consent in this instance had been given by means of a signature on a precompleted form that contained no information on the available alternatives or the differences between the special-school curriculum and the curriculum followed in other schools. Nor do the domestic authorities appear to have taken any additional measures to ensure that the Roma parents received all the information they needed to make an informed decision or were aware of the consequences that giving their consent would have for their children’s futures. It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children’s social and cultural differenc

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Grand Chamber Decision, para 181.

Ibid, para 188.

Ibid, para184.

Ibid, para 194.

Ibid, para 202.

Ibid, para 204.

Ibid, para 13.

Ibid, para 181.

Ibid, para 181.

European Court of Human Rights, Second Section, Case of Chapman v. United Kingdom, (Application No. 27238/95), 18 January 2001.

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» es and in which their children risked isolation and ostracism and special schools where the majority of the pupils were Roma.”27 One problematic area of the decision should be noted here: the Court appears to have endorsed the idea that in certain circumstances, paternalistic measures may be justified. Paragraph 203, cited in part above, begins as follows: “In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent.” This would appear to provide support for the

problematic idea that, in certain circumstances, fully capacitated adults may not enjoy full moral and/or legal agency, if they belong to disadvantaged groups.

Conclusion: The Court and Economic and Social Rights The Court’s ruling in D.H. and Others v. the Czech Republic is important first and foremost because it sets out unequivocally that racial segregation in education is banned in Europe. That must of necessity make state officials in quite a few countries sit up and take notice.

From Galway to Vladivostok, segregated minorities now have a viable tool for pressing fundamental rights claims in the field of education. For Roma, in particular, who suffer extensive segregation

in a number of Council of Europe Member States, this decision is a great milestone in their struggle for emancipation.

More broadly, the D.H. decision hints at possibilities for the Court in a range of social and economic rights matters. As noted above, although D.H. centred on Article 14 ECHR, this ruling will provide an important marker for future Protocol 12 jurisprudence in economic and social rights areas, once such claims are brought. With the positive ruling in D.H. and Others v.

Czech Republic, the Court has established a series of legal norms which will be key tools for practitioners bringing social and economic rights cases in the future.

27 Grand Chamber Decision, para.203.

INDIGENOUS RIGHTS AND THE RIGHT TO CULTURE IN cANADA R. v. Sappier; R. v. Gray28 Supreme Court of Canada Indigenous rights – right to culture – economic and social rights Facts The defendants/respondents, members of indigenous communities in Canada, were charged with unlawfully harvesting timber from state land in violation of New Brunswick’s Crown Lands and Forests Act. The timber was used for domestic needs including the construction of a house and furniture. The remainder was used for community firewood. The state land had been land traditionally used by indigenous peoples prior to European colonisation.

Decision While it was stipulated that the defendants/respondents had

harvested timber from state land, they asserted an aboriginal right to harvest wood for domestic uses as a defence.29 The Court considered that aboriginal rights are founded upon practices, customs, or traditions which were integral to the distinctive pre-contact culture of an aboriginal people.

The Court also noted that such aboriginal rights are communal rights and cannot be exercised by any member of the aboriginal community independently of the aboriginal society they are meant to preserve and that these rights are site-specific, such that their exercise is necessarily limited to

state lands traditionally harvested by members’ respective indigenous community.

The test applied by the Court was to examine whether or not a practice undertaken for survival purposes can be considered integral to a distinctive pre-European contact culture. This examination requires an inquiry into pre-contact way of life, but the examination must be flexible and be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available.

Additionally, the Court stated that it has long recognised that the nature

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28 R. v. Sappier; R. v. Gray, 2006 SCC 54, available at www.canlii.org.

29 Aboriginal rights doctrine is recognized in Art. 35 of the Constitution Act of 1982 and elaborated upon in R. v. Nav der Peet 1996 CanLII 216 (S.C.C.), 2 S.C.R. 507.

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» of the right cannot be frozen in its pre-contact form, but rather must be determined in light of present day circumstances.

The Court first had to determine whether the harvesting of wood was integral to a distinctive culture. A ‘distinctive culture’ is not necessarily a distinct culture, but it does consist of a particular pre-contact way of life for an aboriginal community, including their means of survival, their socialisation methods, their legal systems, and their trading habits.

In this case the State admitted that pre-contact culture included the harvesting of wood for certain domestic uses. As the particular aboriginal peoples concerned

were then migratory communities, it was inferred by the Court that harvesting of wood for construction of temporary shelter was an integral part of their distinctive, pre-contact culture. The Court then went on to examine the evolution of such practices, holding that the right to harvest wood for the construction of temporary shelters must be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling.

Consequently, the Court held that the defendants/respondents had made out defence of aboriginal right that trumped the domestic law proscribing harvesting of timber from state land.

The Court qualified the right by ruling that the wood had to be used for domestic purposes and not sold, traded or bartered, even if to raise funds to build a house.

Justice Binnie concurred in the opinion, but disagreed with this qualification, noting that in precontact aboriginal communities there existed divisions of labour and that bartering was a means of efficiently allocating human resources. He therefore argued that barter or sale within the aboriginal community should be allowed within the scope of the aboriginal right.

This case note was prepared by Bret Thiele30

30 Coordinator, ESC Rights Litigation Programme, COHRE.

ESTABLISHING A RIGHT TO COLLECTIVE BARGAINING UNDER THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS Health Service and Support v. Facilities Subsector Bargaining Assn. v. British Columbia31 Supreme Court of Canada Labour rights – right to collective bargaining Facts The appellants were unions and members of unions representing nurses, health sector facilities or community subsectors. Here, they challenged the validity of Part 2 of the Health and Social Services Delivery Improvement Act.32 The Act had been passed as a response to the challenges facing British Columbia’s health care system. The aims of the Act were to reduce costs and to facilitate the efficient management of the workforce in the healthcare sector. The Government claimed that the Act was designed to focus on permitting health care employers to reorganise the administra-

tion of the labour force and on making operational changes to enhance management’s ability to restructure service delivery. Part 2 of the Act introduced changes to transfers and multi-worksite rights (sections 4 and 5), contracting out (section 6), the status of employees under contracting-out arrangements (section 6), job security programmes (sections 7 and 8), and layoffs and bumping rights (section 9). The Act invalidated important provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a number of specific issues.

Section 10 of the Act voided any collective agreement purporting to modify these restrictions. Despite its serious implications for collective bargaining, there was no meaningful consultation with unions before the Act became law.

The appellants argued that Part 2 of the Act violated the rights to freedom of association (section 2(d)) and equality (section 15) set out in the Canadian Charter of Rights and Freedoms.

Decision Overruling a number of earlier Supreme Court decisions, the Court held that freedom of association

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31 2007 SCC 27 (8 June 2007), available at www.canlii.org.

32 SBC 2002, c.2.

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» guaranteed by section 2(d) of the Charter includes a procedural right to collective bargaining.

They did so on the basis that, first, a review of the section 2(d) jurisprudence of the Court revealed that the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining could no longer stand. Second, an interpretation of section 2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’s historic recognition of the importance of collective bargaining to freedom of association.

Third, according to the Court, collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees. Having reviewed the right to freedom of association under international law (including under the International Covenant on Economic, Social and Cultural Rights), the Court stated that “international conventions to which Canada is a party recognize the right of the members of unions to engage in collective bargaining, as part of the protection for freedom of association. It is reasonable to infer that s. 2(d) of the Charter should be interpreted as recognizing at least the same level of protection”.33 Finally, the Court stated that interpreting section 2(d) as including a right to collective bargaining is consistent with, and indeed, promotes other Charter rights freedoms and values, including dignity, personal autonomy, equality and democracy.34 The Court spent considerable time delineating the right to collective bargaining set out in section 2(d) and the limits thereon. According to the Court, the constitutional right to collective bargaining con-

cerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment.35 The Court held that the right to collective bargaining imposes corresponding duties on the employer: “it requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation”.36 The Court emphasised that section 2(d) does not guarantee the objectives sought through this associational activity. However, it does guarantee the process through which those goals are pursued. Furthermore, according to the Court, “the right to collective bargaining … is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method”.37 The Court also emphasised that, while Section 2(d) does furnish employees with the right to unite, to present demands to government employers collectively and to engage in discussions in an attempt to achieve those goals, the provision does not protect all aspects of the associational activity of collective bargaining.38 In fact, it only protects again “substantial interference” with associational activity.39 More positively, “substantial interference” may be prohibited even where the law or policy causing such interference is not motivated by an intent to interfere with the right of collective bargaining – it is enough that the state law or action in question has that effect.40 The Court set out a two-part test for determining whether a government measure affecting the process of collective bargaining amounts to substantial interfer-

33 34 35 36 37 38 39

ence. First, a court must inquire into the importance of the matter affected to the process of collective bargaining, and more specifically, the capacity of the union members to come together and pursue collective goals in concert. Second, a court must consider the manner in which the measure impacts on the collective right to good faith negotiation and consultation. Both elements of the test must be satisfied for the court to make a finding of substantial interference.41 The Court found that some (but not all) of the impugned provisions of Part 2 did interfere with the process of collective bargaining – either by disregarding past processes of collective bargaining, pre-emptively undermining future processes of collective bargaining, or both. These included: (a) section 6(2) which gave the employer increased power to contract out non-clinical services – a power that was inconsistent with previous collective agreements restricting the right of management to contract out work; (b) section 6(4), which, together with Section 10, invalidated any provision of a collective agreement that requires an employed to consult with a trade union prior to contracting outside the bargaining unit; and, (c) section 9, which made collective bargaining over specified aspects of layoff and bumping meaningless and also interfered with both past and future collective bargaining processes.

The Court concluded that these measures constituted a denial of the right to a process of good faith bargaining and consultation set out in section 2. They could not be justified under section 1 of the Charter, which provides that “[t]he Charter guarantees the rights and freedoms set out in it subject only to such reasonable

Judgment, para 79.

Ibid, para 86 Ibid, para 89.

Ibid, para 90.

Ibid, para 91.

Ibid, para 89-90.

In doing so, the Court referred to the test of “substantial interference” set out by the Supreme Court in an earlier case involving the right to freedom of association (Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94).

40 Ibid, para 90.

41 Ibid, para 93.

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» limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Court did not find a violation of section 15 of the Charter. In their submissions, the applicants had claimed that that the Act subject them to differential treatment in a manner affective their dignity and personhood, based on over-

lapping grounds of sex, employment in the health care sector, and status as non-clinical workers. The Court held, however, that the distinctions made by the Act related essentially to segregating different sectors of employment and did not amount to discrimination under section 15. According to the Court, the differential and adverse effects of the legisla-

tion on some groups of workers related to the type of work they did, and not to the persons they are. The Court concluded that, “the differential treatment based on personal characteristics required to get a discrimination analysis off the ground is absent”.42 This case note was prepared by Aoife Nolan

42 Ibid, para 165.

SOUTH AFRICA: THE ROLE AND OBLIGATIONS OF THE STATE IN RELATION TO EVICTION PROCEEDINGS INSTIGATED BY NON-STATE ACTORS Lingwood v. the Unlawful Occupiers of R/E of ERF 9 Highlands43 High Court of South Africa (Witwatersrand Local Division) Housing rights – evictions – non-state actors

Facts The Applicants, private property developers, sought the eviction of 19 adults and 8 children from an inner city residential property in Johannesburg, which the Applicants owned. They did so on the basis that the occupiers were “unlawful occupiers” in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).44 Most of the occupiers had lived on the property for between three and sixteen years. They had paid rent until – or shortly before - the sale of the property. They were not formally employed and were dependent for survival on informal means of livelihood that were only available in the inner city. While the defendants accepted that they

were unlawful occupiers, they argued that the granting of an eviction order would not be “just and equitable” (as required under section 4(7) PIE)45 because of their personal circumstances and the lack of suitable alternative accommodation for them within the area of jurisdiction of the City of Johannesburg Metropolitan Municipality (the ‘City’). The defendants sought the joinder of the City to the action (that is, they sought to make the City a party to the action) on the basis that the City’s constitutional and statutory obligations required it to make provision for temporary emergency shelter for persons such as the respondents who, upon eviction, would have no suitable alternative accommoda-

tion available to them. The State informed the Court that it did not have any land and/or alternative suitable accommodation available to accommodate the respondents Decision The Court emphasised that PIE does not impose an obligation on private landowners to provide suitable alternative accommodation or land to ‘unlawful occupiers’ of a property who are threatened or faced with an eviction application. The Court acknowledged that section 26 of the Constitution, which sets out the right to have access to adequate housing, may, in certain appropriate circumstances, find horizontal application (i.e. may impose obligations

»

43 Case no. 2006/16243.

44 Act 19 of 1998.

45 Section 4(7) reads: “If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available by a municipality or other organ of State or landowner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

Housing and ESC Rig hts Law Quarterly

» on non-state actors), “provided a proper case is made thereanent and provided that ‘other agents within our society, including individuals themselves, are enabled by legislative and other measures to provide housing’”.46 However, the Court went on to state that, “the obligation to provide access to adequate housing or for that matter suitable alternative accommodation or land to homeless people or unlawful occupiers threatened with evictions as the case may be, entirely rest in our jurisprudence by virtue of the Constitution or statutory law on the State and/or its responsible organs”.47 In this case, the Court stated that the failure to attach the City to the proceedings had the effect that the Court would be unable to make an order against the City in relation to its constitutional and statutory obligations to ensure the realisation

of the occupiers’ right of access to adequate housing. Having referred to previous dicta from the Constitutional Court on when the granting of an order under PIE would be “just and equitable”,48 Mogagabe J held that an eviction order would not be just and equitable in the circumstances of the case, in light of, amongst other things, the non-availability of alternative accommodation and the non-joinder of the City. According to the Court, until the City had been joined and furnished “the envisaged comprehensive program for the realisation of their right of access to adequate housing and the provision of such temporary emergency housing as an interim measure”, the Court would be reluctant to issue an eviction order.49 The Court concluded that “the justice and equity” of the matter required that the City be joined in the proceedings so that the occupiers would be enabled to

enforce their section 26 housing rights against the City.

Having highlighted that the parties had not entered into negotiations, the Court referred to previous Constitutional Court statements stressing the necessity and importance that parties involved in litigation instituted under PIE should engaging in mediation in an attempt to find solutions mutually acceptable to all of them.50 The Court ordered that all parties to the action (including the City of Johannesburg, once joined to the proceedings) should engage in mediation in an endeavour to explore all reasonable possibilities of securing suitable alternative accommodation or land and/or of achieving solutions mutually acceptable to the parties.

This case note was prepared by Aoife Nolan

46 Lingwood at para 19. It should be noted that while Mogagabe J quoted dicta from the Constitutional Court in the Government of RSA v.

Grootboom 2001 (1) SA 46 (CC), he appeared to misconstrue what the Court was saying in that case. The Constitutional Court in Grootboom stated that “[a] right of access to adequate housing also suggests that it is not only the State who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing” in order to give effect to the right of access to adequate housing (para 35). It would seem that the Constitutional Court was highlighting the state’s duty to facilitate non-state actors in the provision of housing either for themselves or others.

However, in Lingwood, Mogogabe J appears to suggest that only those non-state actors that have been “enabled by legislative and other measures to provide housing” can be held to be under an obligation under section 26.

47 Lingwood, para 20.

48 The Court referred extensively to the statements of Sachs J in Port Elizabeth Municipality v. Various Occupiers 2005 (1) SA 217 (CC) made at paras 28-45 of that judgment.

49 Lingwood, para 32.

50 The Court referred extensively to the statements of Sachs J in Port Elizabeth Municipality v. Various Occupiers 2005 (1) SA 217 (CC) made at paras 39-43 and 61 of that judgment.

ROUND‑UP OF RECENT DECISIONS IN ESC RIGHTS CASES On 13 December, the Southern African Development Community Tribunal (SADCT) handed down an interim measure in the first case to be tried by that body, Campbell v. The Republic of Zimbabwe.51 The applicant, a farmer, sought an interim measure preventing the Zimbabwean state from confiscating his family farm until the Tri-

bunal has made a final decision on the dispute between himself, some other farmers and the State.

The confiscation occurred as part of the President’s controversial land seizure policy. The Tribunal ordered the State to “take no steps, or permit no steps to be taken, directly or indirectly, whether by its agents or by orders, to evict from

51 Case No. SADCT: 2/07. Copy of judgment available on request from quarterly@cohre.org.

52 Ibid, p.8.

53 Ibid, p.6

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or interfere with the peaceful residence on and beneficial use of the farm” by the applicants, their employees and their families.52 It did so on the basis that the application sought to protect “a prima facie right …which involves the right to peaceful occupation and use of the land”,53 that there was anticipated or threatened interference with

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» that right, and that the applicant did not appear to have any alternative remedy. This tilted the balance of convenience in his favour. A full hearing on the legality of President Mugabe’s programme to confiscate white-owned farms will be held by the Tribunal on January 22, following the lodgement of a legal challenge with the SADCT by 11 white farmers in October.54 In the case of Lozano & Ors. v. City of Hazleton55 the District Court of Pennsylvania struck down a number of ordinances that had been passed by the Hazleton City

54 55 56 57

Council. These were aimed at combating what the city viewed as “the problems created by the presence of ‘illegal aliens’”.56 These ordinances included the Tenant Registration Ordinance 2006-13, which required apartment dwellers to obtain an occupancy permit. To do so, they had to prove that they were citizens or lawful residents. The City also passed ordinances prohibiting the employment and harbouring of undocumented aliens in the City.

Judge Munley ruled that federal law, which regulates immigration, pre-empted the ordinances passed by the City. He held that the

ordinances violated the Supremacy Clause of the US Constitution, which establishes the supremacy of federal law over state laws.57 He also found that the ordinances violated the procedural due process protections of the Fourteenth Amendment to the US Constitution as they penalised landlords, employers and employees without providing them the procedural protections required by federal law, including notice and an opportunity to be heard. These protections applied to all persons, including illegal aliens. The City has expressed its intention to appeal.

P. Mukumbira, ‘SADC court rules in favour of elderly Zim farmer’, Mail & Guardian Online (14 Dec. 2007).

US District Court for the Middle District of Pennsylvania, 496 F. Supp. 2d 477; 2007 U.S. Dist. Lexis 54320 (26 July 2007).

Ibid, p.8.

The ‘Supremacy Clause’ states that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

CASES TO WATCH World Bank Inspection Panel forced evictions case In May 2007, the Centre on Housing Rights & Evictions filed a case before the World Bank Inspection Panel. In doing so, they were intervening on behalf of the Agyemankata Community (over 200 families) to prevent their forced eviction from Kwabenya Landfill site in Accra, Ghana. The Panel met with COHRE and the Agyemankata Community in October 2007 to hear the Community’s grievance first-hand. Later in October, the Panel had a follow up meeting with COHRE to allow for the rebuttal of the Government’s statements.

In November, the Panel issued its preliminary finding that the issues raised by COHRE were indeed problematic and recommended a full investigation. This recommendation was endorsed by the Board of Directors of the World Bank on 9 November. The World Bank Management’s response to COHRE’s Request for Inspection

acknowledged that key matters raised by COHRE still need to be addressed, including those relating to resettlement, compensation, and environmental aspects of the project. The process has already resulted in some remedial relief for the Agyemankata Community. Amongst other things, the World Bank has established a de facto injunction on eviction and requirement for meaningful consultation. Indeed, the Bank has required the Government of Ghana to take a series of steps to address issues raised by COHRE, including the formulation of a proper Resettlement Action Plan accompanied by a commitment not to evict any affected people prior to approval of such a Plan by the Bank. The Bank has also threatened to withdraw from the project if the Government fails to properly address the issue of resettlement, including by meaningfully consulting with the Agyemankata Community. The results of the full inspection process are

expected in early 2008, when it is hoped that the project will be cancelled or redefined so as to prevent any evictions.

Right to water litigation in South Africa While South Africa has been a leader in the legislative protection of the right to water, its pricing and disconnection policies have resulted in the right to water being denied to significant numbers of disadvantaged households residing in the townships. One means by which access to sufficient water has been denied is through the installation of prepayment water metres by private companies. This has resulted in the access to water of households without money being limited to a free basic water supply of 6 kilolitres per household.

This practice has been challenged in the action of Mazibuko et al. v.

City of Johannesburg and Johannesburg Water (Pty) Ltd. et al.,

Housing and ESC Rig hts Law Quarterly

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» which is currently before the High Court of South Africa (Witwatersrand Local Division). The applicants are five residents of Phiri, Soweto, who are bringing the action on behalf of themselves, their children, the elderly members of their households and all residents of Phiri who are in a similar position to the applicants, as well as everyone in the public interest. The application is supported by the Coalition Against Water Privatisation and is defended by the Centre for Applied Legal Studies (CALS),58 The case involves a legal challenge to the installation prepaid water meters in the township of Soweto. The complainants are arguing that these meters violate the right to sufficient water enshrined in Article 27 of the Constitution as informed by international human rights laws, standards and norms on the right to water.59 Amongst other things, the applicants are seeking to have the prepayment water meters declared unlawful and they also ask that the Court order Johannesburg Water (a company which has been delegated the authority to act as water services provider and whose sole shareholder is the City) to provide everyone in Phiri with a free basic water supply of 50 lcd.60 An amicus curiae brief filed by COHRE with the assistance the Legal Resources Centre in South Africa and the International Human Rights Clinic at New York University School of Law argues that the use of pre-paid metres constitutes a retrogressive measure and a violation of the right to water. The case was argued on 5 December and a decision is expected in early 2008.

Prepared by Bret Thiele

58 J. Dugard, ‘Pro-Poor critique of prepayment water meters in SA: the Phiri story’ (2007) (2) Critical Health Perspectives 1, p.3, see http://www.law.wits.ac.za/cals/phiri/phiri%20water%20dugard.pdf 59 For copies of heads of arguments, see http://www.law.wits.ac.za/cals/ 60 Source: http://www.law.wits.ac.za/cals/.

events The Committee on the Elimination of All Forms of Discrimination Against Women will hold its 40th Session from 14 January to 1 February 2008 in Geneva. The Committee will consider the State Reports of Saudi Arabia, Bolivia, Burundi, France, Lebanon, Morocco, Luxembourg and Sweden.

The Committee on the Rights of the Child will hold its 47th Session from 14 January to 1 February 2008 in Geneva. The Committee will consider the State Reports of the Dominican Republic, Timor-Leste and Georgia, which are due under the CRC. It will also consider the State Reports submitted in accordance with the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography of Chile, Kuwait and Timor-Leste. The State Reports submitted by Chile, Germany, Ireland, Kuwait, Timor-Leste under the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict will also be considered.

The Committee on the Elimination of Racial Discrimination will hold its 72nd Session from 18 February to 7 March 2008 in Geneva. The Committee will consider the State Reports of Moldova, Italy, Republic of Fiji Islands, Belgium, Dominican Republic, USA and Nicaragua. It will also consider the country situation in the absence of a State Report of the following states: Gambia, Monaco, Bulgaria, United Arab Emirates and Panama.

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Housing and ESC Right s Law Quarterly

The Editorial Board of the Housing and ESC Rights Law Quarterly is: • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Visiting Fellow, Norwegian Centre on Human Rights, Norway; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCR-Net, USA; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme.

Coordinating Editor: • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

Contact If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org