Realizing Indigenous Rights in International Environmental Law

CIGI Paper No. 109

October 12, 2016

The Crown has a duty to consult Aboriginal peoples when it has either real or constructive knowledge of an Aboriginal right and title and is contemplating action that might affect either the right or title. To date, the majority of Canadian Aboriginal case law has focused on applying the duty to consult to statutory decisions that could interfere with domestic Aboriginal or treaty rights. Aboriginal peoples have an opportunity to transform international decision making if Canada determines there is a legal requirement to include indigenous voices when negotiating and ratifying international agreements, especially those pertaining to the environment.

Formal legal consultation with indigenous peoples on a country’s international negotiating position for agreements that have the potential to impact indigenous rights will be a significant governance and policy shift. Even though the Federal Court of Appeal in Hupacasath First Nation v Canada (Minister of Foreign Affairs) rejected consultation requirements for the ratification of an international investment treaty, the negotiation of environmental agreements has much clearer links to Aboriginal rights. As well, the Canadian government’s promise to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) also has the potential to influence future court decisions. This proposed legal change is not without challenges. Given that there are more than 600 recognized First Nations bands in Canada and many non-status and urban indigenous populations, as well as Metis and Inuit peoples, a workable solution for legal consultation for legislation and other administrative matters should be a focus of indigenous political organizations as they prepare for the implementation of UNDRIP in Canada.

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About the Author

Risa Schwartz is a sole practitioner, focusing on international law and the intersections between trade and investment law, environmental law and Indigenous rights. Risa formerly worked as a senior research fellow at CIGI, as counsel to the Ministry of Aboriginal Affairs in Ontario and the Ministry of the Environment, and as a legal officer at the WTO.