An Alternate Rights Regime and Aboriginal Citizens
Canada has an “alternate rights regime” that replaces Indigenous sovereignty, Immemorial rights, law and jurisdictions. This alternate rights regime has two components:
1. Alternate Rights Stream; and,
2. Crown-Delegated Jurisdictions;
In today’s society, these three Crown constructs function together to complete the assimilation process started before confederation.
Alternate Rights Stream:
The Crown granted rights to Indigenous Peoples through the Constitution Act under section 351 that are protected by section 25.2 These two constructs created the alternate rights stream.
1. New Rights:
The combination of section 25 and 35 rights created a new rights stream in Canada for Aboriginal peoples:
2. Aboriginal Citizens:
Section 35 created a new class of peoples in Canada called Aboriginal peoples comprised of three ethnic groups referred to as First Nation, Inuit, and Métis peoples.
This three-group distinction of Aboriginal peoples is guaranteed rights in the new rights stream that non-Aboriginal Canadian citizens are not entitled to. This transforms Aboriginal peoples in section 35 into a new class of Canadian citizen, Aboriginal citizens, that are entitled to section 35 rights.4
3. Alternate Rights:
The new rights stream of Aboriginal and Treaty rights are an ‘alternate’ rights stream for Indigenous Peoples replacing their Immemorial and international rights to sovereignty and self-determination:5
1. Indigenous Peoples have rights to sovereignty and self-determination under their Immemorial rights and Indigenous law. The Crown does not recognize these rights. It recognizes section 35 rights and Aboriginal law for Aboriginal citizens in Canada’s rule of law while refusing to recognize Immemorial rights and Indigenous law for sovereign Indigenous citizens.
2. Indigenous Peoples are entitled to permanent sovereignty and self-determination under the UNDRIP6 and international law:7 However, Aboriginal peoples defined in section 35 as a three-group distinction of Aboriginal peoples with the three ethnic groups of First Nation, Inuit, and Métis peoples are not recognized internationally as peoples. This disqualifies Indigenous Peoples in Canada from International rights accorded to internationally recognized Indigenous Peoples.
3. The rights regime created with sections 25 and 35 create an alternate stream of Aboriginal rights for Aboriginal citizens that is different from the rights of other Canadian citizens and conflicts with rights streams for Indigenous Peoples based on their Immemorial and International rights.
Crown -Delegated Institutions:
Crown-Delegated Jurisdictions that replace sovereign Indigenous institutions are examined in detail on another website page.
In brief, The Crown delegates a portion of its section 91(24) authority over Indigenous lands, resources, and peoples into organizations through funding contributions and bilateral agreements. These governance, treaty, and service delivery organizations, with their funding and agreements, form an infrastructure for the alternate rights regime and Aboriginal citizens that is accountable to the Crown.
This alternate rights regime infrastructure replaces pre-existing, modern, and future Indigenous societal infrastructure that should develop through processes of self-determination and be accountable to Indigenous Peoples.8 9
Crown-Delegated Jurisdictions have already been put in place to varying degrees for community government, treaty governance, political organizations, social institutions (education, child welfare, health, and etc.), and a New Nation Government.
1. (1982) Constitution Act. http://caid.ca/ConstAct010208.pdf
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
2. (1982) Constitution Act. http://caid.ca/ConstAct010208.pdf
25. “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
3. (2017) Government of Canada, Your Guide to the Canadian Charter of Rights and Freedoms, Section 25, Government of Canada website. Accessed 2018-03-07. https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html#section25
“Section 25 makes it clear that other rights contained in the Charter must not interfere with the rights of Aboriginal peoples. For example, where Aboriginal peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under section 15 of the Charter.”
4. (2007) Coultard, G. S., Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada. Cont. Pol. Theor. 6: p. 437-460, at p. 452. http://caid.ca/PolofRec2007.pdf
“… the dominance of the legal approach to self-determination has, over time, helped produce of a class of Aboriginal ‘citizens’ whose rights and identities have become defined solely in relation to the colonial state and its legal apparatus. Similarly, strategies that have sought self-determination via mainstream economic development have facilitated the creation of a new elite of Aboriginal capitalists whose thirst for profit has come to outweigh their ancestral obligations to the land and to others. And land claims processes, which are couched almost exclusively in the language of property, are now threatening to produce a new breed of Aboriginal property owner, whose territories, and thus whose very identities, risk becoming subject to expropriation and alienation.” [Emphasis Added]
5. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132, at p. 111. http://caid.ca/TowSusSelDet2008.pdf
“Unfortunately, in the contemporary rights discourse, “Indigeneity is legitimized and negotiated only as a set of state-derived individual rights aggregated into a community social context – a very different concept than that of collective rights pre-existing and independent of the state.” Framing of indigenous rights by states and global institutions persists as indigenous peoples confront the illusion of inclusion in global forums such as the UN Permanent Forum on Indigenous Issues.” [Emphasis Added]
6. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples. http://caid.ca/UNIndDec010208.pdf
7. (2004) United Nations Economic and Social Council, Commission on Human Rights, Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples Permanent Sovereignty Over Natural Resources: Final Report of the Special Rapporteur, Erica-Irene A. Daes, at para. 6, 8, 10, 17, 30, 32, 39, 40, 43 & 48. E/CN.4/Sub.2/2004/30 http://caid.ca/UNIndPermSovNatRes2004.pdf
6. “The interest in the application of this principle to indigenous peoples follows from the similarity of their circumstances to the situation of the peoples to whom the principle was first applied. The principle of permanent sovereignty over natural resources in modern law arose from the struggle of colonized peoples to achieve political and economic self-determination after the Second World War. The principle is this: Peoples and nations must have the authority to manage and control their natural resources and in doing so to enjoy the benefits of their development and conservation. Since the early 1950s, the principle has been advocated as a means of securing for peoples emerging from colonial rule the economic benefits derived from the natural resources within their territories and to give newly independent States the legal authority to combat and redress the infringement of their economic sovereignty arising from oppressive and inequitable contracts and other arrangements orchestrated by other States and foreign companies. The principle was and continues to be an essential precondition to a people’s realization of its right of self-determination and its right to development.” [Emphasis Added]
8. “As a result, it has become clear that meaningful political and economic self-determination of indigenous peoples will never be possible without indigenous peoples’ having the legal authority to exercise control over their lands and territories. Moreover, these exchanges have led to a growing recognition that an appropriate balance can be reached between the interests of States and the interests of indigenous peoples in the promotion and protection of their rights to self-determination, to their lands, territories and resources, and to economic development.” [Emphasis Added]
10. “While the principle originally arose as merely a political claim by newly independent States and colonized peoples attempting to take control over their resources, and with it their economic and political destinies, in 1966 permanent sovereignty over natural resources became a general principle of international law when it was included in common article 1 of both International Covenants on Human Rights. Common article 1 provides in pertinent part:
“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
“2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”” [Emphasis Added]
17. “There is a growing and positive trend in international law and practice to extend the concept and principle of self-determination to peoples and groups within existing States. While understood to no longer include a right to secession or independence (except for a few situations or under certain exceptional conditions), nowadays the right to self-determination includes a range of alternatives including the right to participate in the governance of the State as well as the right to various forms of autonomy and self-governance. In order to be meaningful, this modern concept of self-determination must logically and legally carry with it the essential right of permanent sovereignty over natural resources. The considerations that lie behind this observation must now be examined.” [Emphasis Added]
30. “Thus, we may conclude that the term “sovereignty” may be used in reference to indigenous peoples without in the least diminishing or contradicting the “sovereignty” of the State. The well-established use of the term in many areas of the world rules out any such implication.” [Emphasis Added]
32. “With an understanding of how the concept of sovereignty is applied to indigenous peoples, it becomes further apparent that, when examining their right of self-determination, the principle of permanent sovereignty over natural resources should also apply to indigenous peoples. There are a number of reasons for this. They include the following:
(a) Indigenous peoples are colonized peoples in the economic, political and historical sense;
(b) Indigenous peoples suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples;
(c) The principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements;
(d) Indigenous peoples have a right to development and actively to participate in the realization of this right; sovereignty over their natural resources is an essential prerequisite for this; and
(e) The natural resources originally belonged to the indigenous peoples concerned and were not, in most situations, freely and fairly given up.” [Emphasis Added]
39. “To recapitulate, the developments during the past two decades in international law and human rights norms in particular demonstrate that there now exists a developed legal principle that indigenous peoples have a collective right to the lands and territories they traditionally use and occupy and that this right includes the right to use, own, manage and control the natural resources found within their lands and territories. It remains to state if possible the content and scope of this right as well as its possible limitations.”
40. “Indigenous peoples’ permanent sovereignty over natural resources might properly be described as a collective right by virtue of which the State is obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collectivities) in their natural resources.” [Emphasis Added]
43. “There is not such agreement concerning subsurface resources despite the fact that several domestic and international cases have recognized such a right. 46 Indeed, as noted above, in many countries, subsurface resources are declared by law to be the property of the State. Such legal regimes have a distinct and extremely adverse impact on indigenous peoples, because they purport to unilaterally deprive the indigenous peoples of the subsurface resources that they owned prior to colonial occupation and the creation of the present State. Other property owners in the State never owned such resources and thus were never deprived of them. Thus, the system of State ownership of subsurface resources is distinctly discriminatory in its operation as regards indigenous peoples. The result of these legal regimes is to transfer ownership of indigenous peoples’ resources to the State itself. Of course, in some situations, the ownership of the resources in question was transferred freely and lawfully by the indigenous people who held it. These situations do not concern us here. However, as a general matter it is clear that indigenous peoples were not participants in the process of adopting State constitutions and cannot be said to have consented to the transfer of their subsurface resources to the State. The exclusion of indigenous peoples from constitution-making has been noted by this Special Rapporteur in a previous work.” [Emphasis Added]
48. “Are there any qualifications or limitations on this right? Few if any rights are absolute. Limitations, if any, on this right of indigenous peoples to their natural resources must flow only from the most urgent and compelling interest of the State. For example, article 4 of the International Covenant on Civil and Political Rights provides for limitations on some rights only “in time of public emergency which threatens the life of the nation and which is officially proclaimed”. Few if any limitations on indigenous resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the rights to life, food, and shelter, the right to self-determination, and the right to exist as a people. The principal question is whether under any circumstances a State should exercise the State’s powers of eminent domain to take natural resources from an indigenous people for public use while providing fair and just compensation. Indigenous peoples’ representatives have argued in the working group on the draft United Nations declaration of the Commission on Human Rights that States should never compulsorily take indigenous lands or resources even with payment of compensation. States already have taken far too much of indigenous lands and resources, and, it is argued, States rarely or never have a truly urgent or compelling need to take indigenous lands or resources. States have not yet provided comments or suggestions for this paper that relate to this critical issue. As a result it may be premature to reach a conclusion on the question of States’ authority to compulsorily take indigenous resources with fair and just compensation.” [Emphasis Added]
8. (1999) Wherrett, J., Aboriginal Self-Government. Library of Parliament, Parliamentary Research Branch, Current Issue Review: 96.2E. http://caid.ca/AboSelGovPRB1999.pdf
“However, many First Nations maintain that any form of delegated authority is inconsistent with an inherent right of self-government. Inuit have pursued self-government through public government arrangements in the north in conjunction with land claims, while the Métis have advanced various claims for land and self-government.” [Emphasis Added]
9. (2003) McNeil, Kent. "Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government." Windsor Yearbook of Access to Justice 22: 329-361. http://caid.ca/ChaLegInfInhAbo2003.pdf
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Last Updated August 30, 2018