The Masterpiece Norval Morrisseau, 1982, 64”112, acrylic on canvas (Courtesy of The Coghlan Art Gallery)
The Masterpiece Norval Morrisseau, 1982, 64”112, acrylic on canvas (Courtesy of The Coghlan Art Gallery)

Canada’s Constitution is Indigenous in at least two respects.

First, it is not merely the product of its European origins. Its colonial seeds were cultivated in North American soil and transformed in the process. In this sense, Canada’s Constitution is Indigenous, homegrown in a distinctively North American context. Second, the ground from which Canada’s Constitution grows first belonged to non-European peoples. Indigenous peoples’ governance and life ways are rooted in this place. Indigenous peoples variously resisted, incorporated, assimilated and rejected colonial actions throughout their lands.

These facts have had a significant impact on Canada’s wider constitutional trajectory. In the process, Indigenous peoples’ own laws became a broader source of Canadian law.1 The recognition and affirmation of Aboriginal and treaty rights is simultaneously commingled with their persistent denial. Canada’s Constitution has been shaped by this tension; its “living tree” is both nourished and constrained by Indigenous peoples’ presence throughout the country.2

Unfortunately, more than 20 years ago, the Supreme Court of Canada (SCC) created a fiction that said Aboriginal rights could only be recognized and grow if they arose prior to European contact.3 This was the Van der Peet case, which prevented Indigenous peoples from claiming constitutional rights related to practices, customs and traditions that developed after European arrival. This has stunted Canada’s constitutional evolution.

Aboriginal peoples have not been able to persuade courts or legislatures that they have constitutionally protected rights to governance, education, health care, justice and so on, and thus they have been cut off from taking appropriate responsibility for their own affairs. Because Aboriginal peoples have had difficulty proving that these activities were integral to their distinctive culture prior to European arrival, they cannot shield the exercise of their rights from Crown restrictions and interference.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)4 should cause the Canadian Parliament and courts to reject constitutional distinctions based on pre- and post-contact or assertions of sovereignty.5 UNDRIP’s application to Indigenous peoples does not rest on proof of pre- contact or pre-non-native sovereign assertions.6 Rights are vested in peoples; peoples as identified in section 35(1) of the Constitution Act, 19827 should draw their meaning from international law and be regarded as a political category.8

Peoples’ rights within UNDRIP are also expressed in universal terms. Their exercise is not contingent on a non-Indigenous event (such as European contact with Indigenous peoples or the assertion of foreign sovereignty, as problematically required in Canadian case law). Article 1 of UNDRIP exemplifies this broad-based approach: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.”9

The incorporation of universal human rights standards in the recognition of Indigenous law and governance is an important step in rejecting pre- and post-contact distinctions found in Van der Peet and the 1996 Pamajewon10 decision (which measures Indigenous governmental rights by whether they were integral to the distinctive culture of Aboriginal peoples prior to the arrival of Europeans).

The Pamajewon case from the SCC problematically held that Aboriginal people did not have a “broad right to manage the use of their reserve lands” because “any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, in light of the specific history and culture of the aboriginal group claiming the right.”11 As noted, this narrow conception of self-government built upon the court’s earlier decision in R v Van der Peet.12 Since the regulation of high stakes gambling at issue in the Pamajewon case was held to be not integral to the Ojibwe people prior to European arrival, the SCC applied the Van der Peet case to find that Ojibwe people could not claim governance rights over the activity on their lands in the present day.13

Restricting Aboriginal rights to historical analogues prevents Aboriginal peoples from governing in a contemporary context, since many governance fields will not rest on practices that were central to them when Europeans arrived. This form of constitutional originalism is contrary to Canada’s living tree jurisprudence.14 Freezing the development of Aboriginal rights at the “magic moment of European contact”15 is also contrary to the broad framing of rights found in UNDRIP, as illustrated in article 1. In my view, UNDRIP’s constitutionalization in a Canadian context should be used to challenge and overturn the SCC’s jurisprudence, which rests on pre- and post-contact distinctions.

Fortunately, Canada has committed itself to implementing the Constitution in light of UNDRIP’s provisions.16

The role of international law in Canada’s constitutional system should also play a role in UNDRIP’s implementation. Although international norms are not binding without legislative implementation,17 such norms should be relevant sources for interpreting rights domestically.18 While UNDRIP is technically not binding on Parliament because of its status as a declaration,19 it should nevertheless inform the executive’s (the Crown’s) interpretation and implementation of the Constitution.

For instance, the Crown could use its power to make arguments before the courts to directly insert UNDRIP into submissions related to Aboriginal and treaty rights, rejecting pre- and post-contact distinctions. The Crown could also do the same thing when developing, enacting and implementing statutes and policies to ensure that UNDRIP is the standard that animates its actions in the House of Commons, Senate, Cabinet and ministries.

When the Crown more fully embraces UNDRIP’s provisions, pre- and post-contact qualifications on Aboriginal rights can be rejected. The Crown’s influence on Parliament is significant in our Westminster system. The Crown’s active engagement in implementing UNDRIP would help to ensure, as the SCC wrote, that “the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.”20

In following the paths outlined above, for example, articles 4 and 5 of UNDRIP challenge the idea that Indigenous peoples can only exercise governmental power if that power was “integral to their distinctive culture” prior to the arrival of Europeans. Article 4 states, “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”21 Article 5 states, “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”22

These articles contest Pamajewon’s narrow view of Indigenous governance because they construe governance in a broad light. Self-determination in political, legal, economic, social and cultural matters is the subject of Indigenous self-determination. Indigenous peoples’ own laws become a more prominent part of Canada’s Constitution under this approach.

Article 27 supports this conclusion through its recognition that Canadian law must give effect to Indigenous peoples’ law. It demonstrates that Indigenous law should form a part of how the Constitution recognizes and adjudicates in relation to Indigenous peoples. Article 27 reads: “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.”23

Article 27’s standard requires states to recognize Indigenous peoples’ laws in their adjudicative processes. While there is much more work to do, Canada has already implicitly recognized Indigenous law as a foundation for Aboriginal title under the Constitution, as demonstrated in the Tsilhqot’in24 case. Tsilhqot’in law had a pre-existing and continuing force that was prominent in establishing title.25 As I have argued elsewhere:

Tsilhqot’in elders testified about the continuity of their ways of life in their own language using their legal traditions.26 Indigenous law was key to establishing a sufficiency of Indigenous social organization that was necessary to prove title.27 Tsilhqot’in rules of conduct were central to proving that the Tsilhqot’in historically and presently occupied land in the contested region….28 [T]he SCC implicitly affirmed that Indigenous legal traditions can give rise to enforceable obligations within Canadian law.29 Social organization should be treated as a synonym for self-government.30 When a nation organizes itself socially on a territorial basis, and through its own laws controls land, makes decisions about its use and excludes others, we should conclude that such a nation governs itself.31 First Nations governance is an important dimension of Aboriginal title.32


Implementing UNDRIP within Indigenous Communities

Furthermore, the significance of Indigenous peoples’ laws for internal governance matters should also be recognized as part of Canada’s Indigenous constitution through UNDRIP’s implementation. Article 18 makes this clear: “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”33

The adoption of UNDRIP clears the path for a more explicit recognition and application of Indigenous law within Indigenous nations across Canada. As part of this development, Indigenous peoples themselves could also implement UNDRIP within their own nations to ensure that their own people are both empowered by and protected from their own governments. In this respect, UNDRIP would be further entrenched as part of Canada’s Indigenous constitution.

UNDRIP is an Indigenous instrument; it was created broadly by Indigenous peoples as it was negotiated for more than 30 years at the United Nations.34 Internal adoption of UNDRIP’s principles would positively and radically challenge the calibration of Indigenous governance by reference to pre- and post-contact categories.

Rights identified by UNDRIP should be available within self-governing Indigenous nations across Canada. Once adopted, they can be interpreted in accordance with the Indigenous peoples’ own legal traditions,35 in Indigenous adjudicative forums.36 While UNDRIP was drafted with the intent of securing United Nations recognition of Indigenous peoples’ rights as against nation-states, its broad statements can also be construed as recognizing, affirming and protecting the human rights of Indigenous individuals in their relations with their own governments.37

For instance, article 1 of UNDRIP indicates that Indigenous individuals possess human rights.38 It proclaims, “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.”39 Under this view,  it would not be contrary to the spirit of UNDRIP to recognize that Indigenous governments have obligations in relation to individuals who fall within their jurisdictions.40

The adoption of UNDRIP by First Nations, Metis and Inuit communities would reinforce this view. It would be tragically ironic if nation-states began recognizing and protecting the rights of Indigenous individuals, while Indigenous governments did not take the same action.41

It is instructive to itemize UNDRIP provisions that could apply to individuals within Indigenous nations. UNDRIP lists the following rights and freedoms for Indigenous peoples: religion, spiritual beliefs and practices;42 speech and expression;43 association;44 life, liberty and security;45 property;46 family togetherness;47 a right not to be discriminated against by their governments;48 the privileges and immunities of citizenship;49 language;50 education;51 labour fairness;52 administrative law (notice, fairness, hearing);53 health care;54 and gender equality.55 These apply in accordance with limitations imposed by law and in accordance with international law.56

Again, while it is important to recognize that these laws were enumerated to apply as against states recognized by the United Nations, there is no good reason for restricting their reach in this respect, particularly if self- determination is the lens through which Indigenous human rights are recognized and affirmed.57 To repeat, the widespread support among Indigenous peoples in the drafting and ratification of UNDRIP, along with the now-unanimous acceptance of this document at the United Nations, signals expectations that human rights, not only of communities, but also of Indigenous individuals, must be respected. It is arguable that this is the case no matter the source of government authority that impacts upon those individuals.



The application of UNDRIP by both Canadian and Indigenous governments, through UNDRIP’s commitment to self-determination, should help courts discard pre- and post-contact distinctions in Canadian constitutional law. UNDRIP’s embrace by the Canadian government fundamentally changes the character of the debate surrounding Indigenous law and governance.58 Van der Peet and Pamajewon should be overturned; stare decisis should not be a straitjacket that condemns the law to stasis,59 particularly when such stasis continues to tear the fabric of constitutional reconciliation as it relates to Indigenous peoples.60 Furthermore, Indigenous peoples’ own law must grapple on its own terms — and in accordance with its own cultural worldview — with UNDRIP’s provisions. This will strengthen Indigenous governance and protect Indigenous citizens from their own governments in ways that syncretically draw upon Indigenous peoples’ own regulatory and dispute resolution structures.


This article is an excerpt from UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws, a special report published by the Centre for International Governance Innovation. Read the special report for the full legal argument by John Borrows as well as contributions from leading scholars on braiding international, domestic and Indigenous laws.


[1] Connolly v Woolrich (1867), 17 RJRQ 75 (Sup Ct), affirmed as Johnstone v Connelly (1869), 17 RJRQ 266 (QB).

[2] The leading case on the Constitution as a living tree is Edwards v Canada (Attorney General), [1930] AC 124. A history of the case is found in Robert Sharpe & Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (Toronto, ON: University of Toronto Press, 2007). An example of contemporary references to the living tree are found in Reference re Same-Sex Marriage, [2004] 3 SCR 698 at para 22.

[3] R v Van der Peet, [1996] 2 SCR 507 at para 46 [Van der Peet].

[4] UNDRIP was enacted by the United Nations in 2007. GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007).

[5] This idea is further developed in John Borrows, “Indigenous Law & Governance: Challenging Pre-Contact/Post-Contact Distinctions in Canadian Constitutional Law” (Article written for the Marx–Chevrette lecture, University of Montreal, September 2016) [unpublished].

[6] For an argument that UNDRIP represents the development of international customary law relative to Indigenous peoples, see James Anaya,

Indigenous Peoples in International Law (New York, NY: Oxford University Press, 1996).

[7] Constitution Act, 1982, s 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[8] Catherine Bell, “Métis Constitutional Rights in Section 35(1)” (1997) 36 Alta L Rev 180 (“Rights arising from peoplehood are uncertain because the word ‘peoples’ is not defined in Canadian constitutional law and minimal domestic judicial opinion has been rendered on this point. However, it is a term which was used frequently in international political discourse at the time s. 35 was negotiated to distinguish colonized indigenous populations from nation states and ethnic minority immigrant populations within those states” at 185).

[9] UNDRIP, supra note 4, art 1.

[10] R v Pamajewon, [1996] 2 SCR 821 at para 27.

[11] Ibid.

[12] Van der Peet, supra note 3 at paras 45–47.

[13] For a critique of Van der Peet and Pamajewon, see Bradford W Morse, “Permafrost Rights: Aboriginal Self-Government and the Supreme Court in

R. v. Pamajewon” (1997) 42 McGill LJ 1011; John Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 Am Indian L Rev 37; Russell Barsh & James Youngblood Henderson, “The Supreme Court’s Van der Peet Trilogy: Native Imperialism and Ropes of Sand” (1997) 42 McGill LJ 993.

[14] John Borrows, “(Ab)originalism and Canada’s Constitution” (2012) 58 SCLR 352.

[15] Van der Peet, supra note 3 at para 247.

[16] The Globe and Mail reported that “[t]hirteen out of the 94 recommendations of the Truth and Reconciliation Commission invoke the United Nations Declaration on the Rights of Indigenous Peoples — including, naturally, the one that calls on Canada to adopt and fully implement the declaration itself.” See “Adopting UN Indigenous Rights Declaration Could Worsen Damaged Relationship”, Editorial, The Globe and Mail (19 June 2015), online: < article25048043/>.

[17] R v Sharpe, [2001] 1 SCR 45 at para 175 [Sharpe], referring to Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 at 349–50 and Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[18] Sharpe, supra note 26.

[19] Under this view, Parliament is presumed to act in compliance with its international obligations and to respect the values and principles enshrined in international law through the presumption of conformity, as the courts have recognized; R v Hape, 2007 SCC 26 at para 54, [2007] 2 SCR 292. For reasons that UNDRIP is not directly applicable as law in Canada, see van Ert, supra note 22.

[20] Sharpe, supra note 26, citing Ruth Sullivan & Elmer A Driedger, Driedger on the Construction of Statutes, 3rd ed (Toronto, ON: Butterworths, 1994) at 330.

[21] UNDRIP, supra note 4, art 4.

[22] Ibid, art 5.

[23] Ibid, art 27 [emphasis added].

[24] Tsilhqot’in Nation v British Columbia, [2014] 2 SCR 256.

[25] Continuity of occupation through social organization was necessary to prove Aboriginal title; ibid at paras 45–46, 57.

[26] Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700 at paras 149, 167, 176, 360, 362, 381, 397, 399, 403, 431–435.

[27] Ibid (“‘the Tsilhqot’in had laws, and that those for which there is evidence appear to have been broadly similar to the laws of other many North American Aboriginal groups’…[T[here was evidence ‘that supports the view that chiefs had specific lands within Tsilhqot’in territory and that these lands descended on some sort of hereditary principle.’ I too am satisfied that an examination of the historical records leads to a conclusion that Tsilhqot’in people did consider the land to be their land. They also had a concept of territory and boundaries, although this appears to have been enlarged following the movements of the mid-nineteenth century” at para 429).

[28] Ibid (“Some of the stories and legends told to the Court by Tsilhqot’in elders include: Lhin Desch’osh, the legend of how the land was transformed and the animals made less dangerous; Ts’il?os and ?Eniyudl; How Raven Stole the Sun; A Story of Raven Stealing Fire; The Story of Salmon Boy; The Story of the Woman and the Bear; The Story of Lady Rock; The Story of Qitl’ax Xen, a boy raised by his grandmother; The Story of Guli, the Skunk; A Story About a Brother and a Sister; A Story About an Owl; Two Sisters and the Stars; and, Frog Steals a Baby. This is not a complete list but it is representative of the legends I heard. Each carries with it an underlying message or moral that is intended to instruct and inform Tsilhqot’in people

in the way they are to lead their lives. They set out the rules of conduct, a value system passed from generation to generation” at paras 433–434 [emphasis added]). See also ibid (“Various Tsilhqot’in elders testified about dechen ts’ edilhtan (the laws of our ancestors)” at para 431).

[29] A similar point is made in Val Napoleon, Tsilhqot’in Law of Consent (on file with author). See also Jeremy Webber, “The Public-Law Dimension of Indigenous Property Rights” in Nigel Bankes & Timo Koivurova, eds, The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights (Oxford, UK: Hart, 2013) 79.

[30] In Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 159, Chief Justice Lamer observed, “the foundation of ‘aboriginal title’ was succinctly described by Judson J. in Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313, where, at p. 328, he stated: ‘the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries’” [emphasis added].

[31] For a discussion of contemporary Tsilhqot’in legal traditions as they relate to governance, see Hadley Friedland, Jessica Asch, Maegan Hough, Renee McBeth & Al Hanna, from the Indigenous Law Research Unit, Tsilhqot’in Legal Traditions Report (2014) [unpublished, archived with Val Napoleon and Tsilhqot’in National Government]. For related materials, see Indigenous Bar Association, online: < indigenouslaw/>.

[32] John Borrows, “Aboriginal Title and Private Property” (2015) 71 SCLR 91 at 109 [footnotes in original].

[33] UNDRIP, supra note 4, art 18.

[34] Lillian Aponte Miranda, “Indigenous Peoples as International Lawmakers” (2010) 32 U Pa J Intl L 210.

[35] This argument is made in the Charter context in David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights in Canada (Vancouver, BC: UBC Press, 2012).

[36] In the United States, tribal courts generally deal with human rights issues, see Santa Clara Pueblo v Martinez, 436 US 49, 98 S Ct 1670 (1978). For further discussion of the development of human rights perspectives in US tribal forums, see Angela Riley & Kristen Carpenter, “Indigenous Peoples and the Jurisgenerative Moment in Human Rights” (2014) 102 Cal L Rev 173.

[37] UNDRIP, supra note 4 (“Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law”, Preamble; “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and

fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law”, art 1).

[38] Ibid, art 1.

[39] Ibid.

[40] In fact, under article 35 of UNDRIP, the countries of the world proclaimed that “Indigenous peoples have the right to determine the responsibilities of individuals to their communities.” While rights are not necessarily equivalent to obligations, such statements signal recognition of the importance of healthy international relationships within Indigenous governments.

[41] UNDRIP’s Preamble welcomes “the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement… in order to bring to an end all forms of discrimination and oppression wherever they occur.” As Indigenous nations further organize themselves to bring an end to discrimination within their communities, this presumably fits within the activities encouraged by UNDRIP.

[42] UNDRIP, supra note 4 (“Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains”, art 12(1); “States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned”, art 12(2)). See also ibid, arts 25, 36.

[43] Ibid, art 31.

[44] Ibid (“Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State”, art 5).

[45] Ibid (“Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person”, art 7(1)).

[46] Ibid (“Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”, art 10). See also ibid, arts 26, 28–30.

[47] Ibid (“Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group”, art 7(2)).

[48] Ibid (“Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity”, art 2). See also ibid, art 15(2).

[49] Ibid (“Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right”, art 9). See also ibid, art 33.

[50] Ibid, arts 13, 16.

[51] Ibid, arts 14, 21.

[52] Ibid, art 17.

[53] Ibid, arts 17–19, 21–23, 32.

[54] Ibid, art 24.

[55] Ibid, art 44.

[56] Ibid, art 46 (a Canadian Charter, section 1, type of provision).

[57] See Report of the Working Group on Indigenous Populations on its Eleventh Session, UNESCOR, 45th Sess, UN Doc E/CN.4/Sub.2/1993/29 (1993) paras 189–91. See also Frank Pommersheim, “At the Crossroads: A New and Unfortunate Paradigm of Tribal Sovereignty” (2010) 55 SDL Rev 48 at 65–66; Rebecca Tsosie, “Reconceptualizing Tribal Rights: Can Self-Determination Be Actualized Within the U.S. Constitutional Structure?” (2011) 15 Lewis & Clark L Rev 923.

[58] Carter v Canada (Attorney General), 2015 SCC 5 at para 43 [Carter], citing Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 (“Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate’” at para 42).

[59] Carter, supra note 67 at para 44.

[60] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), online: <>.

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