Immemorial Rights in Canada

Perspective:

Indigenous Peoples should define their own rights. However, there is enough that we know so that we can put things into perspective. A good word to describe these sovereign rights is immemorial; originating from the Creator, they have always been and will always be. Each nation we have worked with has a different name for ‘their’ rights and we respect that, but for ease of discussion, we will refer to sovereign Indigenous rights as ‘Immemorial rights’.

It is clear, Indigenous Peoples want their Immemorial rights to be rights upon which their relationship with Canada is based. But, Canada has ignored Immemorial rights and dictated what rights Indigenous Peoples can have. Consequently, there is no data base on Immemorial rights after 150 years of confederation from which to build. To understand sovereign Indigenous Immemorial rights for the purpose of reconciliation, the Government of Canada will need to doan in-depth Immemorial rights consultation process.

Rights-holders:

The Government of Canada initiated a Recognition and Implementation of Rights Framework to renew their relationship with Indigenous Peoples in 2018. For that process, and any other rights recognition process, to succeed, the Government of Canada must consult true Indigenous rights-holders.

The nature of Indigenous culture has that Immemorial rights are held by community members.¹ Immemorial rights are independent of, and predate, the Crown in Canada. Chief and Council of the band council system in Indigenous communities do not hold their community’s Immemorial rights. A Chief cannot vote or negotiate on behalf of his or her community unless given a mandate from community rights-holders. Final decisions on issues that affect communal Indigenous rights rests with community-based rights-holders.

Components:

In an overly simplistic explanation, Immemorial rights have two basic components:²

1. Our Rights: - Communal rights to self-determination and traditional territory.

2. The Land: - Vested rights of land, water, air, and plant/animal life.

1. Communal Component:

Some of what ‘Our Rights’ to self-determination and traditional territory include are rights to:

a) Live on the land and restrict access to it;

b) Hunt, fish, gather, trade, and build to the benefit of families and communities;

c) Own, direct, manage, and benefit from culture-based societal infrastructures (education, health, child care, justice, resource management, trade, and etc.);

d) Govern communities and traditional territories, including resources; and,

e) Direct a path forward, including a right to say no.

2. Land Component:

Some of what vested rights of ‘The Land’ entails is to:

a) Protect the land and its resources (minerals, water, oil and gas, wildlife, and air); and,

b) Ensure traditional territory use is respectful.

3. Generational Components:

Immemorial rights also have generational components to them and so they are rooted at the same time in:

i.  Past generations;

ii.  Present generations; and,

iii. Future generations.

Recognition of Immemorial Rights:

The successful recognition of Immemorial rights can only occur when the Crown acquires a working understanding of ‘Our Rights’ and ‘The Land’ through consultation. That understanding forms the foundation upon which the Crown can reconcile with Indigenous rights-holding communities, or aggregates of communities (nations), to:

• Respect the Past;
• Provide for the Present; and,
• Maintain for the Future.

Immemorial rights include a right to define and alter consultation processes to ensure they respect Immemorial rights. Results obtained from consultation of Immemorial rights are considered temporal interpretations of the right(s) consulted in the context of that consultation event.

1. (2007) McNeil, K., The Jurisdiction if Inherent Right Aboriginal Governments. Research Paper for the National centre for First Nations Governance, p9. https://caid.ca/JurofIngRig2007.pdf

“In this regard, I think it should be kept in mind that the scope of the jurisdiction any Aboriginal nation received from the Creator is a matter that is within the traditional knowledge of that nation’s people. The holders of this knowledge are the Elders or other members of the community who are recognized by the nation as the keepers or custodians of this knowledge. These are the people who would have to be consulted in order to understand the scope of the jurisdiction given by the Creator.” [Emphasis Added]

2. (2014) Herbert, J.R.G., First Nation Consultation: A Practical Guide. p. 2. https://caid.ca/CAIDPraGui2014.pdf