At the root of the conflict between the Government of Canada and Indigenous Peoples is the advancement of colonization through land development and Crowns resource objectives. This advancement occurs because sovereign Indigenous Immemorial rights are denied. Government of Canada officials and resource corporate representatives see Crown rights and Immemorial rights as antagonistic. However, this is true when officials adhere to the Doctrine of Discovery and Crown-assumed sovereignty to continue forced assimilation.
When the Doctrine of Discovery and its derivative assimilation policies are removed, both the Government of Canada and Indigenous Peoples want sustainable prosperity and a legacy for future generations. We live in the 21st century and the monetary motivations for the unsustainable use of both renewable and non-renewable resources no longer outweigh the rights of citizens and the environment. Both Indigenous and non-Indigenous citizens are frustrated with the resource-grab mentality of corporations and their supporters. But Indigenous communities and their peoples are the ones who bear the real brunt of short-sighted resource policy. The time of withholding infrastructure to create service delivery gaps and poverty as motivators for enfranchisement needs to come to an end.
Permanent Sovereignty to Land:
Indigenous Peoples in Canada have a permanent international right to sovereignty over lands and resources. Permanent sovereignty over natural resources for peoples and states was confirmed by the United Nations in 1962.1 The right to permanent sovereignty over natural resources was recognized to extend to Indigenous Peoples in 19742 and later affirmed in the United Nation Declaration on the Rights of Indigenous Peoples in 2007 (UNDRIP).3 Despite close to five centuries of colonization in Canada, with over 150 years under the Government of Canada’s rule, that right has not been extinguished. It is time the Government in Canada recognizes and reconciles with Indigenous sovereignty and Immemorial rights to land, resources and peoples.
Reconciliation through Consultation and Self-Determination:
The reconciliation process will need to include meaningful consultation to define Immemorial rights and build Indigenous cultural, social, political and economic institutions through a process of self-determination. Self-determination is both a sovereign Immemorial right and an international Inherent right.
The right to self-determination is meaningless without permanent sovereignty over natural resources.4 The United Nations recognizes that peoples and states are not sustainable without the economic benefit of their natural resources.5,6 Indigenous communities in Canada do not have a future under land claims without revenue streams from their natural resources;2,7,8 The status quo of Crown-assumed resource sovereignty and limited funding to finance self-determination will not suffice.
Resources belong to Indigenous Peoples, so too do revenue streams that come from those resources. An internal form of Indigenous self-determination has been smouldering in the background for some time in Canada. It is a form of self-determination with a shared land-based revenue streams for the provision of infrastructure and protection of joint interests by Canadian governments. The nuts and bolts of the process simply needs to be worked on without the Doctrine of Discovery and its Framework of Colonization.
Over the years, we have had opportunity to work on developing Immemorial rights-based consultation processes for select aspects of self-determination. Some of the areas we worked on were:
- Economic institutions with traditional renewable resource-based economies (wildlife harvest and country food infrastructure);9,10,11,12
- Resource management institutions for non-renewable resources (mining, oil and gas infrastructure);13,14,15
- Health institutions (health and mental health care service delivery infrastructure);16
- Municipal-like institutions (community services infrastructure);
- Community safety institutions (veterinary service infrastructure);17,18 and,
- Meaningful consultation frameworks.19,20,21
Using experience from those areas, we developed an Immemorial rights consultation initiative based on the consultation of Immemorial rights for resource management. The initiative contains a number of very detailed objectives and goals but the overarching goal is to define the modern expression of Immemorial rights for land and resource stewardship so that Indigenous Peoples can:
1. Establish stewardship over traditional territories;
2. Establish resource-based revenue streams to fund communities and reverse poverty; and,
3. Fund the building of their cultural, societal, political and economic institutions through a process of self-determination.
Indigenous Peoples cannot definitively establish traditional territory stewardship without defining their Immemorial rights first. These definition are needed to reconcile with Crown rights and harmonize into existing regional, Canadian and global infrastructure. An oversimplification of the process is:
1. Communities are consulted starting first with Elders to record knowledge of pre-existing societies from which an expression of pre-contact culture and Immemorial rights can be received. That expression is brought back to the community for input to receive modern expressions of Immemorial rights;
2. After agreement on consultation outcomes, the Crown is engaged to reconcile with the modern expression of Immemorial rights such that Immemorial rights can be recognize and respected; and,
3. Finally, the rebuilding or restructuring of community infrastructures based on the inclusion of Immemorial rights is commenced to create services for land and resource management.
CAID's Immemorial rights initiative on resource management is titled, Indigenous Consultation and Accommodation of Immemorial Rights: Pre-existing Societies Initiative.
1. (1962) United Nations Declaration on the Permanent Sovereignty over Natural Resources, Resolution 1803 (XVII), Article 1. https://caid.ca/UNRes1803_1962.pdf
1. “The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.”
2. (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 https://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]
3. (2007) United Nations General Assembly, Sixty-First Session: United Nations Declaration on the Rights of Indigenous Peoples, Preamble and Articles 8, 25, 26, 27, 28, 29, & 32. https://caid.ca/UNIndDec010208.pdf
Preamble
“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]
“Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,” [Emphasis Added]
Article 8
2. “States shall provide effective mechanisms for prevention of, and redress for:
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources.” [Emphasis Added]
Article 25
“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.” [Emphasis Added]
Article 26
1. “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. 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, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.” [Emphasis Added]
Article 27
“States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.“ [Emphasis Added]
Article 28
1. “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.” [Emphasis Added]
Article 29
1. “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programs for indigenous peoples for such conservation and protection, without discrimination.” [Emphasis Added]
Article 32
1. “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate 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.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.” [Emphasis Added]
4. (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. 13. E/CN.4/Sub.2/2004/30 https://caid.ca/UNIndPermSovNatRes2004.pdf
13. “Despite these ongoing concerns, the right of permanent sovereignty over natural resources was recognized because it was understood early on that without it, the right of self-determination would be meaningless. In many ways, this point was confirmed by a 1955 report of the Secretary-General. In describing the debates surrounding the drafting of common article 1, he noted that while delegates made reference to the concerns stated above, it was also acknowledged that “the right of self-determination certainly included the simple and elementary principle that a nation or people should be master of its own natural wealth or resource”, and therefore the proposed language “was not intended to frighten off foreign investment by a threat of expropriation or confiscation; it was intended rather to warn against such foreign exploitation as might result in depriving the local population of its own means of subsistence” [Emphasis Added]
5. (1962) United Nations Declaration on the Permanent Sovereignty over Natural Resources, Resolution 1803 (XVII). https://caid.ca/UNRes1803_1962.pdf
6. (2001) United Nations Economic and Social Council, Commission on Human Rights, Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples and Their Relationship to Land: Final Working Paper Prepared by the Special Rapporteur, Erica-Irene A. Daes. E/CN.4/Sub.2/2001/21 https://caid.ca/UNIndPeoRelLan2001.pdf
7. (1993) Anaya, S. J, A Contemporary Definition of the International Norm of Self-Determination, Transnat’l & Contemp. Probs. 3: p. 131-164. https://caid.ca/ConDefIntNorSelDet1993.pdf
8. (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. https://caid.ca/IntRigSelDet2005.pdf
9. (2006) Herbert, R. G., Traditional Deer Harvest-Management in Treaty #3: A Response to Harmonize with the MNR's Human-Deer Conflict Strategy. https://caid.ca/T3Deer111406.pdf
10. (2008) Herbert, R. G., A Model to Establish a New Framework for Aboriginal Economic Development in Canada. https://caid.ca/Model031108.pdf
11. (2008) Herbert, R. G., A Model for the Reconciliation of Canada with its Indigenous Peoples: Restoration of Missing Infrastructure Phase 1: Pilot Program Development. by Dr. R. G. Herbert. https://caid.ca/ModelInf091608.pdf
12. (2009) Herbert, R. G., Meaningful Aboriginal Consultation in Canada: A Review of the First Nation, Inuit, and Métis Right to Consultation and Accommodation on Wildlife Resource Management and Hunting as Defined by Common Law. https://caid.ca/ConsultWild2009.pdf
13. (2013) Herbert, R. G., Public Consultation Comments: Proposed Changes to Class 1 Quartz Programs and Placer Land Use Operations. https://caid.ca/CAIDYKMinExpCon2013.pdf
14. (2013) Herbert, J. R .G., Yukon Environmental and Socio-economic Assessment Board: Public Consultation on Atlin Lake Campground #2013-0113. https://caid.ca/CAIDYESABAtlCmpgrd2013.pdf
15. (2014) Herbert, J. R .G, First Nation Consultation: A Practical Guide. https://caid.ca/CAIDPraGui2014.pdf
16. (2017) Herbert, R. G., Matawa Health Co-operative 2016-17 Report. https://caid.ca/MHCIRep2017.pdf
17. (2010) Herbert, R. G., Report II Expansion of Research and Preparation: Ross River Dena Council – Yukon Government Dog Management Pilot Program. https://caid.ca/CAIDYKDogResPreII2010.pdf
18. (2017) Herbert, J. R. G, Sustainable Veterinary Service in Northern Canada: A Veterinarians Without Borders Workshop - Panel Notes for Dr. R.G. Herbert. https://caid.ca/CAIDVWBJuly2017.pdf
19. (2009) Herbert, R. G., Meaningful Consultation in Canada: The Alternative to Forced Aboriginal Assimilation. https://caid.ca/MeaCon092409.pdf
20. (2009) Herbert, R. G., Working Papers on Meaningful Aboriginal Consultation in Canada: Overview. https://caid.ca/MeaConOve101609.pdf
21. (2010) Herbert, R. G., Working Papers on Meaningful Aboriginal Consultation in Canada: Step 1 – Nation Consultation. https://caid.ca/MeaConOne102309.pdf
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