UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws
occupied or used;57 prior to the storage or disposal of hazardous materials in Indigenous peoples’ lands or territories;58 and prior to the taking of any cultural, intellectual, religious and spiritual property.59 Although at first glance it might seem that the standards within UNDRIP are captured by the court in Haida, these standards need to be considered in conjunction with the right to property in international human rights law. The United Nations Permanent Forum on Indigenous Issues has observed that “[l]and is the foundation of the lives and cultures of indigenous peoples all over the world. Without access to and respect for their rights over their lands, territories and natural resources, the survival of indigenous peoples’ particular distinct culture is threatened.”60 It is a right that is essential for the maintenance of other human rights, including, for example, the right to self-determination or the right to culture. Although some might question the utility of relying on the international right to property in a Canadian legal context, given that a general right to property is not protected in Canada’s Constitution61 or the Charter,62 Aboriginal title has been recognized and affirmed under section 35(1) of the Constitution Act, 198263 by the SCC in Tsilhqot’in Nation v British Columbia.64 Therefore, Indigenous nations, such as the Tsilhqot’in Nation, with recognized Aboriginal title possess constitutionally protected rights to certain lands.65 These are wide-ranging rights, “including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”66 International human rights law is of use in further defining and clarifying these rights, and the corresponding remedies67 that exist to enforce these rights. The Inter-American Human Rights System has developed an advanced and substantive body of jurisprudence on the rights of Indigenous peoples, drawing on UNDRIP. In particular, this system has recognized the collective rights of Indigenous peoples to land, to the natural resources traditionally used and found within Indigenous territories and, ultimately, to FPIC with regard to any large-scale development projects that impact their survival as Indigenous peoples. This body of jurisprudence has been developed around the rights to property and culture, as outlined by the American Declaration on the Rights and Duties of Man68 (American Declaration) and the American Convention on Human Rights69 (American Convention). It should be noted that although the American Declaration is not a legally binding document, it is interpreted by both the Inter-American Commission on Human Rights and the courts as a source of international legal obligations for member states of the Organization of
57 Ibid, art 28. 58 Ibid, art 29(2). 59 Ibid, art 11(2). 60 UN Economic and Social Council, Permanent Forum on Indigenous Issues, Report on the Sixth Session (14-15 May 2007), UNESCOR, Supp No 23, UN Doc E/2007/43, E/C.19/2007/12 at para 4. 61 John Borrows, “Aboriginal Title and Private Property” (2015) 71 SCLR Osgoode’s Annual Constitutional Cases Conference 91 at 93 [Borrows, “Aboriginal Title”]. See also Richard Bauman, “Property Rights in the Canadian Constitutional Context” (1992) 8 SAJHR 344. 62 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11. 63 Constitution Act, 1982, supra note 6. 64 [2014] 2 SCR 257, [2014] SCJ No 44 (QL) [Tsilhqot’in Nation]. 65 Borrows, “Aboriginal Title”, supra note 61. 66 Tsilhqot’in Nation, supra note 64 at para 73, cited in Borrows, “Aboriginal Title”, supra note 61. 67 Tsilhqot’in Nation, supra note 64 at paras 89, 90. These remedies include “injunctive relief, damages, or an order that consultation or accommodation be carried out” (at para 89). 68 OAS, Inter-American Commission on Human Rights, American Declaration on the Rights and Duties of Man, OR OEA/Ser.L/V/I.4 Rev 9 (31 January 2003), 43 AJIL Supp 133 (1949). 69 OAS, Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, OAS TS No 36, 1144 UNTS 123 (1969).
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