Defining Indigenous Peoples
1. United Nations Policy on Peoples:
a. UN Recognition:
The international right to self-determination applies to ‘peoples’. For many years, peoples with a right to self-determination were defined as:1 2
These definitions of peoples are overly simplistic and create a world of mutually exclusive peoples ignoring the relationships of their geopolitical regions with Indigenous Peoples.
With the UNDRIP in 2007, Indigenous Peoples formally received the international status of ‘peoples’ for self-determination. In its preamble, the UNDRIP states:
“Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,”3
b. UN Restrictions:
The United Nations currently holds that the International right to self-determination applies only to internal decolonization remedies for Indigenous Peoples.2 4 The unequal application of the right to self-determination speaks to the issue of ongoing systemic international discrimination and exploitation of Indigenous Peoples and their resources. That topic is beyond the scope of this website. However, working within the restricted realm of internal decolonization remedies, it should be noted that solidifying pre-existing Canadian Indigenous nations into distinct peoples and Indigenous networks – unravelling divide-and-conquer – will significantly strengthen the right of Indigenous Peoples to pursue international decolonization remedies.
2. Canadian Policy on Peoples:
a. Domestic Recognition:
The question at hand is, how does the Government of Canada define ‘peoples’ for Indigenous Peoples in Canada? We start with a quote from the Final Report of the Truth and Reconciliation Commission of Canada:
“Canada replaced existing forms of Aboriginal government with relatively powerless band councils whose decisions it could override and whose leaders it could depose. In the process, it dis-empowered Aboriginal women.
Canada denied the right to participate fully in Canadian political, economic, and social life to those Aboriginal people who refused to abandon their Aboriginal identity.
Canada outlawed Aboriginal spiritual practices, jailed Aboriginal spiritual leaders, and confiscated sacred objects.
And, Canada separated children from their parents, sending them to residential schools. This was done not to educate them, but primarily to break their link to their culture and identity.
These measures were part of a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will.”5 [Emphasis Added]
b. International Recognition:
If Canada’s domestic policy for over a century was to extinguish Indigenous Peoples as distinct peoples, what is its policy at the international level?
The Government of Canada does not recognize the international right of Indigenous Peoples in Canada to self-determination for external or internal decolonization remedies. They do so by not recognizing Indigenous Peoples in Canada as ‘peoples’ under international law. The Government of Canada declared it would implement the UNDRIP which provides for the recognition of Indigenous Peoples as peoples entitled to the right of self-determination. However, unless the UNDRIP is brought into force through federal legislation, the Government of Canada is not bound by the UNDRIP or its declaration.
c. Canadian Restrictions:
Where does the Government of Canada obtain its definition of ‘peoples’ now that it has adopted the descriptive term of ‘Indigenous Peoples’? The definition comes from section 35 of the Constitution Act where pre-existing Indigenous nations and peoples are defined into the three-group distinction of “First Nations, Inuit, and Métis peoples.”8 This three-group distinction approach internationally scrambles recognizable pre-existing distinct peoples into three ethnic groups (First Nations, Inuit, and Métis) that the Government of Canada can successfully argue no longer qualify internationally as peoples.9 These peoples are given Crown-granted Indigenous-related rights and Crown-Delegated Jurisdictions as an alternate rights regime that:
1. (1993) Anaya, S. J, A Contemporary Definition of the International Norm of Self-Determination, Transnat’l & Contemp. Probs. 3: p. 131-164. http://caid.ca/ConDefIntNorSelDet1993.pdf
2. (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. http://caid.ca/IntRigSelDet2005.pdf
3. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples. http://caid.ca/UNIndDec010208.pdf
4. (2015) Dessanti, C., Indigenous Peoples’ Right to Self Determination in International Law. Intra Vires 1.1 (fall 2015): p. 45-55. http://caid.ca/IndPeoRigSelDet2015.pdf
5. (2015) Truth and Reconciliation Commission of Canada: Volume 1, Part 1, Introduction. p. 3-4. http://caid.ca/TRCFinVol1Par12015.pdf
6. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132, at p. 110. http://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]
7. (1990) Lubicon Lake Band v. Canada, Communication No. 167/1984, at para. U.N. Doc. CCPR/C/38/D/167/1984 (1990) http://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]
8. (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.
9. (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]
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Last Updated July 28, 2019