Many Indigenous and Non-Indigenous groups use the term, ‘Indigenous rights’ and ‘Inherent rights’ interchangeably. We have chosen to use the descriptive term, Immemorial rights, for Indigenous rights defined by Indigenous Peoples, and Inherent rights, for Indigenous rights defined in the 2007 United Nation Declaration on the Rights of Indigenous Peoples [UNDRIP]1 as ‘inherent rights’. In the discussion before us, Inherent rights contained within the UNDRIP are part of Immemorial rights, but only a part.
The UNDRIP recognizes Indigenous Peoples are entitled to the international right of self-determination. The right to self-determination includes a variety of Inherent rights associated with self-determination that are now recognized as international rights of Indigenous Peoples. While the declaration did not create new or special Inherent rights for Indigenous Peoples,2 it contains Indigenous-specific expressions of international rights already guaranteed by international human rights instruments, instruments3 the Government of Canada is a signatory to.
The UNDRIP includes Inherent rights to:
- Self-determination, indigenous infrastructure, and Indigenous Institutions;
The enjoyment of human rights and equality;
- Life, integrity, and security;
- health care and child weldare;
- Culture, religious, and linguistic identity;
- Education, public information, and employment;
- Participate in decision making and free, prior, and informed consent;
- Economic and social institutions;
- Land, territories, wildlife, and resources;
- Treaties and other constructive agreements; and,
- Indigenous women’s rights.
Limits to UNDRIP Rights:
1. Generational Limits:
Inherent rights outlined in the UNDRIP:
1. Are based in the present generation only;
2. Include redress of the present generation for wrongs against past generations; and
3. Include compensation of the present generation for ongoing colonization – wrongs against future generations.
In this regard, Inherent rights outlined in the UNDRIP are ‘less-than’ Immemorial rights as Immemorial rights consider the rights of past, present, and future generations equally.
2. Article 46:
Inherent rights contained within the UNDRIP are not influenced by the Doctrine of Discovery. However, they are influenced by state efforts to maintain an international status quo. In this regard, there are two Inherent rights’ limitations in article 46 of the UNDRIP that are important. They are referred to as the safeguard and repugnant clauses.
1. “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” [Emphasis Added]
3. “The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.”4 [Emphasis Added]
a. Safeguard Clause:
The safeguard clause requires Indigenous self-determination to maintain the existing territorial boundaries and political unity of the sovereign host colonial state. The clause essentially removes the right to external self-determination (creating a sovereign independent state) for Indigenous Peoples.5 As it does so, it negatively affects the expression of Immemorial rights for past, present, and future generations by:
- Ignoring the rights of past generations to have pre-existing sovereign nations reconstituted;
- Ignoring the rights of the present generation to meaningfully participate in a process to create or change government institutions so that they can freely pursue their economic, social, and cultural development in a manner that leads to reconstituting or creating sovereign independent nations; and,
- Ignoring the rights of future generations to create sovereign independent nations by aggregating their peoples in a manner of their choosing.
b. Repugnant Clause:
The repugnant clause requires that the exercise of Inherent rights and self-determination not conflict with principles listed in the clause. These principles include: Justice, democracy, respect for human rights, equality, non-discrimination, good governance, and good faith. The repugnant clause allows aspects of Indigenous Immemorial rights, law, or jurisdiction to be defined as repugnant by the eurocentric principles in the clause.6 When this occurs, Indigenous law, Immemorial rights, and jurisdiction are invalidated resulting in a Eurocentric-enforced definition of Indigenous self-determination. Two examples:
- Indigenous Peoples forfeit the right to a traditional governance system using inherited Chiefs since it is not a democracy; and,
- Matriarchal societies with female leadership roles would be discriminatory against men and disallowed.
3. Government of Canada:
The Government of Canada does not recognize Indigenous Peoples as peoples under international law.7,8 As such, the Crown does not recognize that Indigenous Peoples in Canada are legally entitled to Inherent rights contained within the UNDRIP.9
To move toward self-determination under International law, Indigenous Peoples will need to remove hurdles created by the Doctrine of Discovery and assumed sovereignty to ensure that the Crown recognizes them internationally.
1. (2007) United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61//295, preamble. https://caid.ca/UNIndDec010208.pdf
“Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,” [Emphasis Added]
2. (2011) Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook, Indigenous Bar Association & University of Manitoba, Faculty of Law. Winnipeg.https://caid.ca/UndImpUNDecinCan2011.pdf
“The UN Declaration does not create new or special rights for Indigenous peoples. Instead, the UN Declaration elaborated upon existing international human rights instruments and clarifies how those rights apply to Indigenous peoples given their ‘specific cultural, historical, social and economic circumstances.’” [Emphasis Added]
3. (2007) United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61//295, preamble. https://caid.ca/UNIndDec010208.pdf
4. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples, Article 46 (1) and (3). https://caid.ca/UNIndDec010208.pdf
5. (2005) Dalton, J. E., International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context? Institute of Intergovernmental Relations, Queens University, at p. 13. https://caid.ca/IntRigSelDet2005.pdf
“However, even at the level of preliminary, informal recognition of Indigenous peoples as “peoples” under international law, the right of self-determination is still expected to be internal in nature. This is primarily due to the international legal recognition of the sovereignty of states and respect for territorial boundaries; potential secession of Indigenous populations would seriously hinder the territorial integrity of states.” [Emphasis Added]
6. (2009) Taiwo, E. A., Repugnancy Clause and its Impact on Customary Law: Comparing the South African and Nigerian Positions – Some Lessons for Nigeria, J. Juri. Sci. 34(1): p. 89-115, at p. 109. https://caid.ca/RepClaCusLaw2009.pdf
“The application of customary law is subject to “repugnancy” proviso, namely, a provision that customary law may not be applied if it is contrary to natural justice or public policy. … Repugnancy doctrine has not received favour of the natives and has been criticized for supplanting indigenous law in its land.” [Emphasis Added]
7. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives: p. 105-132, at p. 110. https://caid.ca/TowSusSelDet2008.pdf
“Based on an analysis of Deskaheh’s strategic interventions in Geneva, it is apparent that five major tactics were used to obstruct Deskaheh’s pursuit of self-determination. They included the following:
1. The United Kingdom used major-power intervention and procedural appeals to block the Haudenosaunee claim from ever reaching the League of Nations General Assembly
2. Canada claimed that this was not a global issue but “entirely of domestic concern”
3. Canada asserted that this was not a matter of group/collective rights but a matter between “the Canadian Government and individuals owing it allegiance”
4. Canada claimed that Haudenosaunee claims were not legitimate but were merely “calculated to embarrass this Government”
5. Finally, Canada contended that Six Nations were not “an organized and self-governing people so as to form a political unit apart from Canada” but that they were integrated into the Canadian state as citizens” [Emphasis Added]
8. (1990) Lubicon Lake Band v. Canada, Communication No. 167/1984, at para. U.N. Doc. CCPR/C/38/D/167/1984 (1990) https://caid.ca/UNHRCLubLakBan1990.pdf
“Right of self-determination”
6.1 “The Government of Canada submits that the communication, as it pertains to the right of self-determination, is inadmissible for two reasons. First, the right of self-determination applies to a "people" and it is the position of the Government of Canada that the Lubicon Lake Band is not a people within the meaning of article 1 of the Covenant. It therefore submits that the communication is incompatible with the provisions of the Covenant and, as such, should be found inadmissible under article 3 of the Protocol. Secondly, communications under the Optional Protocol can only be made by individuals and must relate to the breach of a right conferred on individuals. The present communication, the State party argues, relates to a collective right and the author therefore lacks standing to bring a communication pursuant to articles I and 2 of the Optional Protocol.” [Emphasis Added]
6.2 “As to the argument that the Lubicon Lake Band does not constitute a people for the purposes of article I of the Covenant and it therefore is not entitled to assert under the Protocol the right of self-determination, the Government of Canada points out that the Lubicon Lake Band comprises only one of 582 Indian bands in Canada and a small portion of a larger group of Cree Indians residing in northern Alberta. It is therefore the position of the Government of Canada that the Lubicon Lake Indians are not a "people" within the meaning of article 1 of the Covenant.” [Emphasis Added]
7. “In a detailed reply, dated 8 July 1985, to the State party's submission, the author summarized his arguments as follows. The Government of Canada offers three principal allegations in its response. It alleges, first, that the Lubicon Lake Band has not exhausted domestic remedies. However, the Band has, in fact, exhausted these remedies to the extent that they offer any meaningful redress of its claims concerning the destruction of its means of livelihood. Secondly, the Government of Canada alleges that the concept of self-determination is not applicable to the Lubicon Lake Band. The Lubicon Lake Band is an indigenous people who have maintained their traditional economy and way of life and have occupied their traditional territory since time immemorial. At a minimum, the concept of self-determination should be held to be applicable to these people as it concerns the right of a people to their means of subsistence. Finally, the Government of Canada makes allegations concerning the identity and status of the communicant. The "communicant" is identified in the Band's original communication. The "victims" are the members of the Lubicon Lake Band, who are represented by their unanimously elected leader, Chief Bernard Ominayak.” [Emphasis Added]
9. Nunatukavut Community Council Inc. v. Canada (Attorney General),  FC 981, at para. 103 & 104. https://caid.ca/NunDec2015.pdf
103 “I agree with the NCC’s general premise that UNDRIP may be used to inform the interpretation of domestic law. As Justice L’Heureux Dubé stated in Baker, values reflected in international instruments, while not having the force of law, may be used to inform the contextual approach to statutory interpretation and judicial review (at paras 70-71). In Simon, Justice Scott, then of this Court, similarly concluded that while the Court will favour interpretations of the law embodying UNDRIP’s values, the instrument does not create substantive rights. When interpreting Canadian law there is a rebuttable presumption that Canadian legislation is enacted in conformity to Canada’s international obligations. Consequently, when a provision of domestic law can be ascribed more than one meaning, the interpretation that conforms to international agreements that Canada has signed should be favoured.” [Emphasis Added]
104 “That said, in Hupacasath, Chief Justice Crampton of this Court stated that the question of whether the alleged duty to consult is owed must be determined solely by application of the test set out in Haida and Rio Tinto. I understand this to mean that UNDRIP cannot be used to displace Canadian jurisprudence or laws regarding the duty to consult, which would include both whether the duty to consult is owed, and, the content of that duty.” [Emphasis Added]