Indigenous Rights, Consultation and Consent

Aboriginal Rights in International Law

Canada is a signatory of the following three key international agreements respecting human rights:

  • the International Covenant on Civil and Political Rights (ICCPR);3
  • the International Covenant on Economic, Social and Cultural Rights (ICESCR);4 and
  • the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).5

As a signatory to the ICCPR and the ICESCR, Canada is bound to respect the special relationship that Indigenous peoples have with the land they inhabit and to protect Indigenous peoples’ rights to use their traditional land.6 These international agreements recognize that Indigenous groups have vested rights owing to their historical possession and occupation of the land.

The Lubicon Cree filed a complaint under the ICCPR that the provincial and federal governments were failing to uphold the articles of the treaty in relation to impacts of oil and gas development on the Lubicon and their way of life7.  The international Human Rights Committee declared that Canada had violated article 27 of the ICCPR by interfering with the Lubicon’s right to “enjoy their culture” and practice their way of life.  Since the ruling was not binding in the same sense as domestic court rulings, Canada failed to remedy the situation and the issues with oil and gas development are still ongoing.

The ICESCR requires signatories, including Canada, to implement treaties “to the maximum of [their] available resources” in order to achieve “progressively the full realization of the rights” enshrined in the convention, including the economic development of Indigenous peoples.8 In addition to the protection and promotion of economic rights, the ICCPR establishes the rights of “ethnic, religious or linguistic minorities … to enjoy their own culture, to profess and practice their own religion, or to use their own language”.9 For Indigenous peoples, whose culture is inextricably linked with the land, protection of culture inherently requires the protection of traditional territories.

Relevantly, the UN Committee on the Elimination of Racial Discrimination (CERD), which is responsible for monitoring the implementation of ICERD, issued General Recommendation 2310 in relation to Indigenous Peoples. Creating a clear connection with State obligations under the convention, CERD called upon signatories to, among other things, “recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation” and “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.” In particular, CERD called on signatories to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.”11

As of November 2010, Canada is also a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).12 Although the UNDRIP is currently neither binding law (because it is a declaration), nor customary international law per se (although UNDRIP “is regularly referred to by the international community as articulating rights that are already affirmed in existing binding conventions and treaties”13 and may become customary law), its nearly unanimous endorsement by countries world-wide shows widespread support for the principle that Indigenous peoples have the right to participate meaningfully in decisions affecting them. More specifically, UNDRIP states that “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use”.14 Article 19 states that endorsing governments shall obtain the “free, prior and informed consent” of Indigenous peoples before taking steps that may affect their rights or the use of their land.15 In relation to mining and resources in particular, Article 32(2) of UNDRIP provides:

States shall consult and co-operate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

As a result of Canada being a signatory to these international treaties and declarations, Canada’s First Nations have collective rights to self-determination, as well as individual rights to participate in decisions that affect their political, economic, and cultural development.

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