The historical colonization and ongoing oppression of Indigenous Peoples in Canada creates an environment where the status quo is intolerable. There are international remedies that mat be available to Indigenous Peoples to move forward with self-determination despite oppostion from officials within governments in Canada.
Doctrine of State Sovereignty:
The ‘doctrine of state sovereignty’ is a limiting factor for international self-determination remedies. The state-centred doctrine:
Limits the international system from intervening in matters within the domestic jurisdiction of any state; and,
Upholds the status quo by protecting a state’s territorial integrity and political unity.
However, when self-determination is violated, the host state’s sovereignty can be countered by a required appropriate international self-determination remedy.1 2 The Government of Canada is continuing its colonization of Indigenous lands. It is engaged in the ongoing oppression of Indigenous Peoples and the denial of their international right to self-determination. An appropriate international remedy may be required.
Doctrine of Reversion:
The ‘doctrine of reversion’ in international law provides a recourse for the resurrection of Indigenous Peoples’ sovereign rights after having land and resources acquired by European states. The doctrine may provide a path for Indigenous Peoples in Canada to assert their pre-existing sovereign rights to self-determination. Under this doctrine, the sovereign rights of Indigenous Peoples are dormant awaiting revival despite the presence of occupation.
“Similarly, current governments of Australia and North America could be seen as unlawful belligerent occupants who failed to obtain legitimate title to these countries. Any acknowledgement of Aboriginal sovereignty today would, therefore, only involve a reinstatement of the historical rights of the legitimate sovereigns. Further, as noted above, the Aboriginal occupants of these countries resisted the invasion of imperial and colonial forces. To a large extent, however, this resistance ultimately weakened and subsided. It is submitted that, in accordance with Monsieur Vattel's sentiments, this was no more than an acknowledgement of the strength of their foes. There was no voluntary submission to the "conquering" powers, nor an acknowledgement of the nation as the legitimate sovereign. Moreover, in varying degrees, these Aboriginal peoples have managed to survive the invasion of their countries and maintain their identity as separate nationalities. Thus, in light of Vattel's works, it appears the decimation of these Aboriginal peoples and the seizure of their lands would not prevent the reversion of their sovereign rights.
In light of the international law outlined in this article, it would appear feasible for Aboriginal peoples to have their original sovereignty recognized and for these people to exercise these rights at least concurrently with the present governmental authority. The hurdles the "occupying" governments put forward as preventing such claims are not insurmountable and the benefits of success are high. Depending on its form, the recognition of Aboriginal sovereignty could provide many benefits.”3 [Emphasis Added]
Indigenous Peoples in Canada are not without recourse regarding the denial of their sovereignty, Immemorial rights, and self-determination. However, the path and resolve for remedies, whether internal or external, must come from them. Those who believe in respect, honour, and integrity will provide the support.
Where does it begin? The initial movement forward will need to include:
1. Healing in and between families for cultural trauma caused by residential schools and intergenerational fallout;
2. Healing rifts between communities caused by divide and conquer;
3. Healing rifts between Indigenous and non-indigenous communities caused by disinformation, discrimination, and other assimilation policies;
4. Reconstituting distinct nations of peoples into pre-existing nations or in self-defined geoethnic aggregates;
5. Reclaiming international rights to self-determination, permanent sovereignty over land and resources, and Inherent rights in the UNDRIP;
6. Unravelling the Government of Canada’s delegated jurisdiction and alternate rights regime for Aboriginal citizens;
7. Reclaiming Indigenous sovereignty and Immemorial rights through meaningful consultation of community rights holders (elders, community members, youth, women, special councils, governance, and etc. as defined by peoples);
8. Creating Inherent Jurisdictions based on Indigenous sovereignty and Immemorial rights; and,
9. Building, or restructuring, infrastructure within Inherent Jurisdictions to the benefit of Indigenous communities and nations.
No matter the path taken by Indigenous Peoples in Canada as they move forward to remedy their sovereignty and right to self-determination, the Government of Canada must renounce the Doctrine of Discovery and its Framework of Colonization.
1. (1993) Anaya, S. J, A Contemporary Definition of the International Norm of Self-Determination, Transnat’l & Contemp. Probs. 3: p. 131-164, at p. 160-161. https://caid.ca/ConDefIntNorSelDet1993.pdf
“Sovereignty precepts form a backdrop and potentially limiting factor for the elaboration of self-determination remedies within the international system. The limitations of the state-centered doctrine of sovereignty are essentially twofold. First, the doctrine limits the capacity of the international system to regulate matters within the spheres of authority asserted by states recognized by the international community. This limitation upon international competency is reflected in the U.N. Charter's admonition against intervention "in matters essentially within the domestic jurisdiction of any state. Second, sovereignty upholds a substantive preference for the status quo of political ordering through its corollaries protective of state territorial integrity and political unity. … Where there is a trampling of self-determination, however, the presumption in favour of non-intervention, territorial integrity, or political unity of existing states may be offset to the extent required by an appropriate self-determination remedy.” [Emphasis Added]
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, at p. 13. https://caid.ca/IntRigSelDet2005.pdf
“However, this does not mean that external self-determination should not be a right accorded to Indigenous peoples in appropriate circumstances, nor does it mean that the present author does not support such a right. Instead, as others have noted, the right of external self- determination may be a crucial component for some Indigenous groups, particularly those suffering from wrongful domination, oppression, and colonialism.” [Emphasis Added]
3. (1998) Cassidy, J., Sovereignty of Aboriginal Peoples. Ind Int’s & Comp L. Rev. 9.1: p. 65-119, at p. 118. https://caid.ca/SovIndPeo1998.pdf