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.