Indigenous Resources and Sovereignty

Perspective:

The right to self-determination is meaningless without permanent sovereignty over natural resources.¹

Indigenous Land and Resources

1. United Nations Policy on Resources:

Permanent sovereignty over natural resources for peoples and states was confirmed by the United Nations in 1962.² The right to permanent sovereignty over natural resources was recognized to extend to Indigenous Peoples in 1974¹¹ and later affirmed in the UNDRIP.³

2. Canadian Policy on Resources:

The Government of Canada does not recognize the permanent sovereignty of Indigenous Peoples in Canada to land and resources. In that regard, the Crown owns all land and resources in Canada, not under third party ownership,⁴ with a fiduciary duty to Indigenous Peoples, as per the Doctrine of Discovery. Indigenous Peoples can claim the right to Aboriginal title and exercise Aboriginal rights granted to them by the Crown under section 35. However, the Government of Canada has a right to infringe on those section 35 Aboriginal rights and to veto Indigenous objections to land and resource development. Indigenous Peoples in Canada are impoverished and benefit minimally or not at all from the exploitation of their natural resources.

The Crown has maintained control over Indigenous lands and resources by blocking the international recognition of Indigenous Peoples in Canada as ‘peoples’. In effect, withholding both the international right to self-determination and the right to permanent sovereignty over natural resources. This was done by creating an alternate rights regime outside of the concept of self-development in place of Immemorial rights. The Government of Canada accomplished this using Crown-granted rights and Crown-Delegated Jurisdiction.

The alternate rights regime of section 35 endangers the future of Indigenous Peoples by supporting the compartmentalization of a domestic iteration of self-determination.⁵ The compartmentalization is done by separating land and resources from the recognition of political autonomy. The Government of Canada does this currently using two types of bilateral agreements:

1. Land Claim Agreements:

• These agreements require the surrender of sovereign rights to Indigenous land and natural resources for up to 98 percent of the traditional territory.
• Land Claim Agreements are irrevocable agreements.

2. Self-Government Agreements:

• Self-government jurisdiction is restricted to the 2-4% of land retained by the Indigenous community(s) from the Land Claim Agreement. Indigenous government autonomy is limited by and accountable to federal legislation and the Canadian rule of law.
• Self-Government Agreements are not permanent agreements.

The combination of Land Claim and Self-Government Agreements with the support of the alternate rights regime, replaces international self-determination with Crown-defined self-government while extinguishing distinct peoples and residual sovereignty to land and resources.^5,6,7 This perfect storm completes the colonization and assimilation of Indigenous Peoples in Canada. Whether the Government of Canada uses the alternate rights regime with existing treaties, or modern Land Claim - Self-Government Agreement couplets, the effect is the same, cultural genocide.

Extinguishing Indigenous Land and Resource Soveriegnty in Canada:

The four tools used for extinguishing Indigenous self-determination in Canada are:

1. Land Claim Agreements;

2. Self-Government Agreements;

3. Section 35 Treaty Rights; and,

4. Section 35 Aboriginal Rights.

1. Land Claim Agreements

Land Claim Agreements permanently extinguish sovereignty to land and resources and detail what rights are granted to Indigenous Peoples at the time of signing. These details become Treaty rights under section 35:

• Land Claim Agreements are irrevocable instruments that remove Indigenous Peoples’ sovereign access to the vast majority of natural resources in their traditional territories;
• Land Clam Agreements (and treaties) are interpreted by the rule of law which excludes Indigenous sovereignty, Immemorial rights, law, and Inherent Jurisdiction; and,
• The United Nations recognizes that peoples and states are not sustainable without the economic benefit of their natural resources.^8,9

Land Claim Agreements create an unsustainable environment for Indigenous self-determination and sovereignty. Indigenous communities in Canada do not have a future under land claims without revenue streams from their natural resources.^10,11,12

2. Self-Government Agreements:

Self-Government Agreements replace the Inherent Jurisdiction of Indigenous government under Indigenous law with a Crown-Delegated Jurisdiction under Canadian law:

• These agreements are not signed by the Crown with Indigenous Peoples without a Land Claim Agreement in place;
• Indigenous self-government in Canada is an Aboriginal right defined by the rule of law to the exclusion of Immemorial rights. As an Aboriginal right under section 35, it can be modified or revoked by the Government of Canada; and,
• Indigenous governments created under section 35 self-government are not recognized internationally.

The negotiation of Self-Government Agreements does not allow meaningful processes to create government institutions toward Indigenous self-determination based on freedom and equality. Agreements that have land surrender as a precondition and allow for hard negotiation by the Crown do not reflect the free will of Indigenous Peoples to determine their political status by virtue of their sovereignty and right to self-determination.

3. Section 35 Treaty Rights:

Treaty rights under section 35 do not recognize residual Indigenous sovereignty for lands and resources:

• All Land Claim Agreements and treaties, existing and future, have Indigenous sovereignty to lands and resources extinguished as a default status under section 35;
• Treaty rights recognized in section 35 are derived from the Canadian rule of law’s interpretation of document-specific text. These definitions exclude all rights not pencilled into the text and therefore exclude the unwritten permanent Indigenous sovereignty to land, resources, and peoples; and,
• Treaty rights can be modified by Canada's judicial system or repealed by removing section 35 from the Consitution Act.

Treaty rights are part of an alternate rights regime that is outside of the concept of self-determination that excludes the freedom and equality of Indigenous Peoples to extend their culture into social, political, and economic realms, including into land development and resource management.

4. Section 35 Aboriginal Rights:

Aboriginal rights under section 35 replace Immemorial rights:

• Section 35, coupled with section 25, create Aboriginal citizens with Aboriginal rights who are disqualified as ‘distinct peoples’ entitled to the right to self-determination and permanent sovereignty over lands and resources under international law;
• Aboriginal rights are defined by the Canadian rule of law to ensure the protection of Crown rights and the exclusion of Immemorial rights; and,
• Aboriginal rights can be modified or repealed by removing section 35 from the Consitution Act.

Aboriginal rights are part of an alternate rights regime that excludes the freedom and equality of Indigenous Peoples to extend their culture into the social, political, and economic developments of self-determination.

1. (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]

2. (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.”

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. Personal Note:

Indigenous Peoples can be third party owners of land. Further, Land Claim Agreements have several classes of land and Treaty rights for those classes. One of those classes gives title to land and resource rights for 2-6% of the claimed traditional territory. However, this is not enough land and resources to sustain self-determination.

5. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132, at p. 107. https://caid.ca/TowSusSelDet2008.pdf

“Over the past thirty years, indigenous self-determination claims have been framed by states and global organizations in four distinct ways that jeopardize the futures of indigenous communities.

First, the rights-based discourse has resulted in the compartmentalization of indigenous powers of self-determination by separating questions of homelands and natural resources from those of political/legal recognition of a limited indigenous autonomy within the existing framework of the host state(s)…

Second, in several cases, the rights discourse has led states to deny the identities or very existence of indigenous peoples residing within their borders (or to reframe them as minority populations or other designations that carry less weight or accountability under international law)…

Third, the framing of rights as political/legal entitlements has deemphasized the cultural responsibilities and relationships that indigenous peoples have with their families and the natural world (homelands, plant life, animal life, etc.) that are critical for their well-being and the well-being of future generations…

Finally, the rights discourse has limited the applicability of decolonization and restoration frameworks for indigenous peoples by establishing ad hoc restrictions.” [Emphasis Added]

6. (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. https://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]

7. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132, at p. 111. https://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]

8. (1962) United Nations Declaration on the Permanent Sovereignty over Natural Resources, Resolution 1803 (XVII), Article 1. https://caid.ca/UNRes1803_1962.pdf

9. (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

10. (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

11. (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

12. (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]