International Law and the Right of However, this neither negates nor diminishes the Indigenous Self-Determination: Should importance of self-determination as an over- International Norms be Replicated in the arching objective for many Aboriginal peoples in Canadian Context? Canada. As stated by Alan Cairns, By …domestic developments could not Jennifer E. Dalton have brought us to where we are now Osgoode Hall Law School without the support offered by the international environment. Indeed, ABSTRACT Aboriginal nationalism, cultural pride, and In international law Indigenous self- the pursuit of self-government would all determination is often given different meaning be much weaker in the absence of and content than in the Canadian domestic supportive messages by the international context. However, there is no firm agreement on environment. … International law, which what Indigenous self-determination entails. This formerly ‘facilitate[d] empire building and paper argues that Indigenous self-determination colonization … [now] provides grounds is the right of Indigenous peoples to choose how for remedying the contemporary they live their shared lives and structure their manifestations of the oppressive past.’ It communities based on their own norms, laws, is easier to underestimate than to and cultures. It includes the freedom and equal overestimate the impact of external human right to control one’s destiny, usually in developments on domestic politics, the context of communities. More specifically, especially when we are dealing with this article argues that in the Canadian context, attitudes, values, and implicit assumptions Aboriginal communities constitute “peoples,” about the direction in which the world is and therefore, should be accorded the right of moving. It is easy to track the movement self-determination as defined by international of goods and peoples across frontiers – law. less easy to detect the influence of changes in the border-crossing messages Following a brief historical analysis of the we receive simply by being awake in a development of Indigenous self-determination in changed world.1 international law, the paper includes a closer examination of the concept of self- In other words, Cairns emphasises the impact of determination, particularly from the standpoint international law and the international legal arena of internal versus external forms. This leads to on the Canadian legal and political realms. In an application of self-determination to particular, he is pointing out the effects of “peoples,” including legal analyses of who international law and legal norms on Aboriginal constitutes “peoples” under international and issues and rights in the Canadian context. These Canadian common law. In so doing, the relevant issues and rights arguably include the right of self- defining features of “peoples” and the right of determination for Aboriginal peoples in Canada. “peoples” to self-determination are defined in the Canadian context. However, there is no firm agreement on precisely what self-determination entails, either 1. INTRODUCTION under international law or in the Canadian context. In the context of international law Mary Ellen Turpel argues that “Indigenous claims Indigenous self-determination is often given unite legal, historical, political, moral, and different meaning and content than in the humanitarian arguments in a body of doctrine that Canadian context. In fact, the term “self- may be viewed as a third generation of determination” is more often used in the international legal context, while “self- 1 Alan Cairns, Citizens Plus: Aboriginal Peoples and government” is used in the Canadian context as the Canadian State (Vancouver: UBC Press, 2000) at an expression of the right of self-determination. 40-42.

Working Paper 2005(1) © IIGR, Queen’s University Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination international human rights law focussing on the governance based on the interplay between laws, uniquely collective nature of Indigenous claims. land use, and resources,5 which can conflict with This new generation of human rights has been jurisdictional authority at the federal, provincial, termed the ‘rights of peoples’.”2 In the Canadian or territorial levels. At the same time, the right to context, Aboriginal peoples have employed the self-governing powers is likely one of the most term because of its relevance for their objectives expansive rights since it encompasses many of the and, more importantly, due to the resonance it larger goals of self-determination as a whole. For holds in describing their inherent and example, self-government can include a range of historically-based rights. In these ways, the right powers, depending on the type of self-government of self-determination can be applied in the which is adopted,6 such as decision-making, law- Canadian context based on the essential making capabilities, and varying degrees of meanings and goals behind the concept. autonomy. In addition, self-government is often attached to a land base or territory, and in many Generally speaking, it is argued here that instances cultural integrity plays an important Aboriginal self-determination is the right of role. In these ways, self-government can ensure Aboriginal peoples to choose how they live their that Aboriginal peoples live according to their shared lives and structure their communities own norms and values.7 based on their own norms, laws, and cultures. It includes the freedom and equal human right to Anaya further defines “self-determination [as control one’s destiny, usually in the context of giving] rise to remedies that tear at the legacies of communities. empire, discrimination, suppression of democratic participation, and cultural suffocation.”8 Further, According to S. James Anaya, there are five Turpel observes that fundamental characteristics embodied in self- determination: freedom from discrimination; Indigenous claims are multifaceted respect for cultural integrity; social welfare and because they bring together requests for development; lands and natural resources; and land, requests for autonomy from the self-government.3 Freedom from discrimination political structures and cultural hegemony should be an expected standard in contemporary, liberal society, and social welfare and 5 Anaya, Indigenous, supra note 3 at 98, 104-105, 109- development are important tools required for 110. Aboriginal peoples to be freed from the current 6 As there are several different conceptions of self- social constraints in which they find government it is not possible to go into specific details themselves.4 Cultural issues are often embedded at this point. Thomas Isaac notes that Aboriginal self- within a complex array of so-called minority and government “is an often-used term with as many ethnic considerations and debates. The last two meanings as there are Aboriginal groups in Canada” (Thomas Isaac, Aboriginal Law: Commentary, Cases characteristics are also highly controversial since rd they stress the importance of autonomy in and Materials, 3 ed. (Saskatoon, Saskatchewan: Purich Publishing Ltd., 2004) at 453). 7 Depending on the degree of power accorded to 2 Mary Ellen Turpel, “Indigenous Peoples’ Rights of Aboriginal groups in any given self-governing Political Participation and Self-Determination: arrangement, self-government can be quite similar in Recent International Legal Developments and the nature to the right of self-determination. For further Continuing Struggle for Recognition” (1992) 25 discussion of the relationship between self- Cornell Int’l L.J. 579 at 580 [Turpel, “Indigenous”]. determination and self-government, see Turpel, 3 S. James Anaya, Indigenous Peoples in “Indigenous”, supra note 2 at 593, 595; Report of the International Law, 2nd ed. (New York: Oxford Royal Commission on Aboriginal Peoples, vol. 2, University Press, 2000) at 97-98, 104-105, 107, 109- “Restructuring the Relationship,” in For Seven 110 [Anaya, Indigenous]. Generations: An Information Legacy of the Royal 4 Such tools arguably should come from the Canadian Commission on Aboriginal Peoples (CD-ROM) government, but in providing any resources it is (Ottawa: Libraxus Inc., 1997) at paras. 452-469, 512- crucial to be sensitive to the aspirations of Aboriginal 518 [RCAP]. peoples. 8 Anaya, Indigenous, supra note 3 at 75.

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of dominant “settler” societies, and self-determination powers should they be pleas for respect for their distinct accorded? Indigenous cultural and spiritual world views. The claims also seek redress for In this article it will be argued that Aboriginal systemic discrimination against peoples in Canada do indeed constitute “peoples,” Indigenous peoples in the legal (criminal as that term is used in the context of self- justice) and political systems, the social determination. They should, therefore, be services sector, and the workforce.9 accorded the right of self-determination as defined by international law. However, in the Canadian However, while some equate the desire for self- context this right focuses around internal forms of determination with the pursuit of secession from self-determination. While it is not assumed at this Canada, this occurs only in a minority of cases. point that the question of secession might not arise The majority of Aboriginal peoples focus on at some point in the future, the quandary of the self-determination as the reinstatement of right of external self-determination within a autonomy over “political, social and cultural federalist system such as Canada involves the development” within Canada and freedom from exploration of other legal, jurisdictional, political, state interference so as to allow the preservation social, cultural, and economic nuances. These and transmission of cultures to future matters are reserved for another article. generations.10 The key rationale behind these claims is rooted in the historical injustice that Before dealing with the principal subjects Aboriginal peoples have faced, the attempted outlined above, a brief historical analysis of the obliteration of their cultures, laws, knowledge, development of Indigenous self-determination in political authority, and territorial rights, and the international law is in order. This will help situate corresponding subjugation and assimilation that the aforementioned debates within the relevant they have endured as a result of colonialist historical context from the perspective of forces. In seeking self-determination, the power international law. Following this, a closer to define how Aboriginal peoples live is returned examination of the concept of self-determination to those who are properly equipped with the will be explored, specifically from the standpoint knowledge of what is best for themselves, of internal versus external forms. This will lead to namely Aboriginal peoples. Ultimately, an application of self-determination to “peoples,” Aboriginal peoples see the right of self- and an international legal assessment of who determination as a prerequisite to all other constitutes these “peoples.” Ultimately, this will rights.11 allow for an application to the Canadian context, including legal analyses of the ways in which However, in international law self- Aboriginal groups constitute peoples within determination is a right vested in “peoples,” and Canada. In so doing, the relevant defining features this is where much of the controversy lies. How of “peoples” and the right of “peoples” to self- are “peoples” defined at international law? How determination will be defined in the Canadian might this definition be reproduced in the context. Canadian context? Should Aboriginal peoples be considered “peoples” with a right of self- 2. SELF-DETERMINATION IN determination in Canada, and what extent of INTERNATIONAL LAW Aboriginal peoples in Canada have found that, in some ways, international legal mechanisms have been more conducive to their goal of 9 Turpel, “Indigenous,” supra note 2 at 580. achieving self-determination than has been the 10 Ibid. at 593. 11 case within the domestic context. This is due, in Dalee Sambo, “Indigenous Peoples and large part, to the higher level of consideration International Standard-Setting Processes: Are State accorded self-determination within international Governments Listening?” (1993) 3:13 Transnat’l L. & Contemp. Probs. 13 at 23; see RCAP, supra note 7 law. In the Canadian common law system, the at paras. 452-469. possibility of self-government for Aboriginal

Working Paper 2005(1) © IIGR, Queen’s University 3 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination peoples is usually raised, while self- the reason for this lies in the conceptions of determination receives little attention.12 Part of “nations” and “peoples,” which are part and parcel of self-determination as recognised under international law. The task of defining “peoples” 12 Of course, it should be remembered that the entire is addressed later in this article. However, before Canadian common law system is constitutionally proceeding to that discussion, it is important to based on the conception of “one sovereign.” The briefly review the history and development of existence of only one sovereign, specifically the self-determination in international law, Crown, makes the granting of self-determination or particularly in relation to Indigenous peoples.13 self-government powers to Aboriginal peoples potentially more difficult. The granting of such powers might represent or result in conflicting development of the interior of British Columbia, jurisdictional issues between Aboriginal peoples and protection of the environment or endangered the Crown. At this point it is important to note that species, the building of infrastructure and the Aboriginal jurisprudence places the sovereignty of settlement of foreign populations to support those the Crown over and above any other ruling powers. aims, are the kinds of objectives that are consistent For example, the Supreme Court of Canada has with this purpose and, in principle, can justify the clearly stated that Aboriginal prior occupancy, infringement of aboriginal title (Delgamuukw v. Aboriginal prior sovereignty, and general Aboriginal British Columbia, [1997] 3 S.C.R. 1010 at para. rights under s. 35(1) of the Constitution Act, 1982 165 [emphasis in original]. must be reconciled with the assertion of Crown sovereignty. For example, in Delgamuukw Lamer For further analysis of the infringement of Aboriginal C.J. affirmed the sovereignty of the Crown along rights under s. 35(1) see Kent McNeil, “How Can with a broad range of legislative objectives which Infringements of the Constitutional Rights of might legitimately infringe Aboriginal rights under s. Aboriginal Peoples be Justified?” in Kent McNeil, 35(1). Delgamuukw is one of the most important Emerging Justice?: Essays on Indigenous Rights in Supreme Court of Canada rulings on Aboriginal Canada and Australia (Saskatoon, Saskatchewan: rights under s. 35(1) in part because it expanded Native Law Centre, University of Saskatchewan, 2001) significantly the range of legitimate legislative 281. For an in-depth discussion of Delgamuukw, more objectives following the Van der Peet trilogy (R. v. generally, see Kent McNeil, “Defining Aboriginal Title Van der Peet, [1996] 2 S.C.R. 507 [Van der Peet]; R. in the 90s: Has the Supreme Court Finally Got it v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Right?”, Twelfth Annual Robarts Lecture, York Gladstone, [1996] 2 S.C.R. 723). For further analysis University, Toronto, Canada, 25 March 1998; Kent of the Van der Peet trilogy, including legislative McNeil, “The Post-Delgamuukw Nature and Content of infringement, see Russel Lawrence Barsh and James Aboriginal Title,” in Kent McNeil, Emerging Justice?: Youngblood Henderson, “The Supreme Court’s Van Essays on Indigenous Rights in Canada and Australia der Peet trilogy: Naïve Imperialism and Ropes of (Saskatoon, Saskatchewan: Native Law Centre, Sand” (1996-1997) 42 McGill L.J. 993. The range of University of Saskatchewan, 2001) 102; Kent McNeil, legislative objectives outlined in Delgamuukw serves “The Onus of Proof of Aboriginal Title,” in Kent to demonstrate the level at which Aboriginal rights McNeil, Emerging Justice?: Essays on Indigenous are subordinate to the sovereignty of the Crown Rights in Canada and Australia (Saskatoon, under Canadian common law. Lamer C.J. stated the Saskatchewan: Native Law Centre, University of following: Saskatchewan, 2001) 136; John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw In the wake of Gladstone, the range of legislative v. British Columbia” (Fall 1999) 37:3 Osgoode Hall objectives that can justify the infringement of L.J. 537. aboriginal title is fairly broad. Most of these 13 In the context of international law the term objectives can be traced to the reconciliation of “Indigenous” is more prevalent, and so will be used in the prior occupation of North America by this article when dealing with international legal norms aboriginal peoples with the assertion of Crown and over-arching principles. However, in the context of sovereignty, which entails the recognition that the Canadian common law system “Aboriginal” is the “distinctive aboriginal societies exist within, and “accepted” terminology, and therefore, is used are a part of, a broader social, political and accordingly herein. It should be noted that a shift is economic community… .” In my opinion, the occurring whereby Aboriginal peoples, through the development of agriculture, forestry, mining, and right of self-naming, are leaning towards the term hydroelectric power, the general economic “Indigenous” over “Aboriginal,” in order to signify

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(a) A History of Indigenous Self- time self-determination was not referred to as a Determination “right.”19 Article 1, paragraph 2, describes the Essentially, the principle of self- organization as designed “to develop friendly determination first gained international political relations among nations based on respect for the recognition after the First World War as a result principle of equal rights and self-determination of of the disintegration of the Austro-Hungarian, peoples.” Article 55 notes “the creation of Russian, and Ottoman empires.14 The purpose of conditions of stability and well-being which are negotiating peace at the time ultimately included necessary for peaceful and friendly relations the specification that peoples and nations should among nations based on respect for the principle exercise their own sovereign wills, without fear of equal rights and self-determination of peoples.” of domination by other states.15 Darlene Johnston notes that the principle of self- Since that time, international law has determination was “an impetus to the formation developed with respect to the right of self- of the League of Nations,”16 but it was not determination for peoples, appearing in other formally acknowledged as an international norm resolutions and declarations. However, self- until the formation of the United Nations.17 Such determination is still considered a “political recognition appears in Articles 1 and 55 of the principle but not yet a rule of international law.”20 Charter of the United Nations,18 although at that For example, the General Assembly resolution 21 1514 (XV), which contains the “Declaration on their status as original inhabitants. Of course, it can the Granting of Independence to Colonial be argued that “Aboriginal” carries with it similar Countries and Peoples,” was a central, early connotations, but the point here is to note a trend stepping-stone in the recognition of self- where the process of “labelling” is changing to reflect determination. According to Erica-Irene Daes, this more the desires and needs of Aboriginal peoples, declaration “has formed the cornerstone of what and less so the opinions and perceptions of non- may be called the ‘New United Nations Law of Aboriginals. A similar process occurred wherein Self-determination’.” According to this resolution, previous delineations of “native” and “Indian” were “all peoples have the right to self-determination. replaced by “Aboriginal” and “First Nation.” It By virtue of that right they freely determine their should also be noted that Aboriginal peoples do not political status and freely pursue their economic, constitute a single homogeneous group, but rather 22 they are “as historically different from one another as social and cultural development.” are other nations and cultures in the world… In addition, the right of self-determination for Canadian Indigenous peoples speak over fifty peoples is clearly articulated in the International different Aboriginal languages from twelve distinct Covenant on Economic, Social and Cultural language families, which have as wide a variation as do the language families of Europe and Asia. These nations’ linguistic, genealogical, and political descent can be traced back through millennia to different 19 Erica-Irene Daes, “The Right of Indigenous Peoples regions or territories in northern North America” to ‘Self-Determination’ in the Contemporary World (John Borrows, Recovering Canada: The Resurgence Order,” in Donald Clark and Robert Williamson, eds., of Indigenous Law (Toronto: University of Toronto Self-Determination: International Perspectives (New Press, 2002) at 3). York: St. Martin’s Press, 1996) 47 at 47 [Daes, “Right 14 Anaya, Indigenous, supra note 3 at 76; S. James of Indigenous Peoples”]. Anaya, “A Contemporary Definition of the 20 Robert Coulter, “Indigenous Peoples and the Law of International Norm of Self-Determination” (1993) 3 Self-Determination: A Possible Consensus,” Indian Transnat’l L. & Contemp. Probs. 131 at 134-136. Law Resource Center, Helena, Montana, 18 October 15 Anaya, Indigenous, supra note 3 at 76. 2002 at 3 (emphasis in original) [Coulter, “Indigenous 16 Darlene Johnston, “The Quest of the Six Nations Peoples”]. Confederacy for Self-Determination,” in S. James 21 United Nations, Declaration on the Granting of Anaya, ed., International Law and Indigenous Independence to Colonial Countries and Peoples, Peoples (Burlington, VT: Dartmouth, 2003) 85 at 87. UNGA Res. 1514 (XV), 15 UN GAOR, Suppl. (no. 17 Anaya, Indigenous, supra note 3 at 76-77. 16), UN Doc. A/4684 (196), at 66. 18 Charter of the United Nations (1945), 59 Stat. 22 Daes, “Right of Indigenous Peoples,” supra note 19 1031, TS no. 993, 3 Bevans 1153, 1976 YBUN 1043. at 48.

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Rights (ICESCR)23 and the International Daes, this wording is identical to that found in Covenant on Civil and Political Rights Article 1 of the above-mentioned Covenants, (ICCPR).24 Article 1 of each states that “all supporting the assertion of many Indigenous peoples freely determine their political status peoples of their right to self-determination under and freely pursue their economic, social and international law.29 cultural development.” Moreover, as noted by Daes, the right of self-determination is (b) Who are “Peoples”?: External versus connected to “what has come to be termed Internal Self-Determination ‘permanent sovereignty’ over natural wealth and Many critics of the right of self-determination resources’.”25 for Indigenous peoples claim that Indigenous peoples do not constitute “peoples” recognised Finally, two of the most recent under international law, and therefore the right of developments in the international arena with self-determination cannot be applied to them, regard to self-determination, applicable either internationally or domestically in Canada. specifically to Indigenous peoples, are the However, there is no “internationally accepted Organization of American States (OAS) and the [definition] of the [term] ‘peoples’.”30 United Nations Draft Declaration on the Rights of Indigenous Peoples (Draft Declaration). Uncertainty over the meaning of “peoples” Within the OAS, the Inter-American often finds its roots in debates over the form that Commission on Human Rights approved the self-determination might take. Such form is often Proposed American Declaration on the Rights of placed on a continuum of external versus internal Indigenous Peoples in February 1997, which is conceptions of self-determination. External self- currently undergoing further examination at the determination involves independent statehood, request of the OAS General Assembly.26 Both including recognition as a nation under support the right of self-determination as a international law, provided that the nation in fundamental right for Indigenous peoples, but question has a permanent population, a defined the Draft Declaration is more ambitious and less territory, a government, and the capability of “integrationist.”27 In particular, Article 3 of the entering into relations with other states. Draft Declaration states that “Indigenous Conversely, internal self-determination refers to Peoples have the right to self-determination. By those rights which support and preserve virtue of that right they freely determine their “Indigenous cultural difference through political status and freely pursue their economic, independent political institutions” within an social and cultural development.”28 As noted by existing nation-state.31 While internal self- determination has already been given some support at the Canadian federal and provincial

23 International Covenant on Economic, Social and Cultural Rights, 6 ILM 360 (1967). Determination” (1992) 24 Case W. Res. J. Int’l L. 199 24 International Covenant on Civil and Political [Iorns]. Rights, 6 ILM 368 (1967). 29 Daes, “Right of Indigenous Peoples,” supra note 19 25 Daes, “Right of Indigenous Peoples,” supra note at 55. 19 at 49. 30 Gudmundur Alfredsson, “Different Forms of and 26 Joanna Harrington, “Canada’s Obligations under Claims to the Right of Self-Determination,” in Donald International Law in Relation to Aboriginal Rights,” Clark and Robert Williamson, eds., Self- conference paper, Pacific Business & Law Institute, Determination: International Perspectives (New York: Ottawa, April 28-29, 2004 at 16 [Harrington]. St. Martin’s Press, 1996) 58 at 71 [Alfredsson]. 27 Ibid. 31 United Nations, Declaration by the International 28 United Nations, Draft Declaration on the Rights of NGO Conference on Discrimination Against Indigenous Peoples, Doc. E/CN-4/Sub. Indigenous Populations in the Americas (U.N. Doc. 2/1994/2/Add.1, Art. 3, p. 3 [Draft Declaration]. For E/Cn/ .4/Sub.2/1986/7); Patrick Macklem, Indigenous an in-depth analysis of the content, history, and Difference and the Constitution of Canada (Toronto: potential benefits of the Draft Declaration see University of Toronto Press, 2001) at 37 [Macklem, Catherine Iorns, “Indigenous Peoples and Self- Indigenous].

Working Paper 2005(1) © IIGR, Queen’s University 6 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination levels through various self-governing Other conceptions of internal self- arrangements,32 external self-determination is determination emphasise the importance of much more controversial.33 This is due, in large cultural definition and preservation, economic part, to the depiction of “independent statehood” self-sufficiency, and political autonomy including and “the capability of entering into relations self-government arrangements and various forms with other States,” which could amount to of democratic, political, and representative jurisdictional conflicts or secession of rights.35 Essentially, these sorts of conceptions are Aboriginal peoples from the Canadian state.34 limited to self-determination powers within states, and thus do not require attempts at secession or 36 32 The creation of Nunavut might come to mind, but absolute political independence. the “independence” of the governmental apparatus is debatable since it is a public government that also Nevertheless, it is often because of fears of represents a minority non-Aboriginal population. In potential secession or significant jurisdictional this context, while the majority of the population is conflict that states are hesitant to define various Aboriginal, the government still exercises delegated groups as “peoples.” Many are hesitant to accord authority, rather than a more independent form of Indigenous peoples the title of “peoples” or self-government. Band councils are another example “nations” since international law does not permit of delegated authority, but their powers are even secession of Indigenous populations from larger more limited in nature. Once again, the degree of states, and accordingly, attempts at secession are governing “independence” is debatable. 33 For further discussion of external self- usually viewed as both unacceptable and determination see Benedict Kingsbury, unfeasible by nation states. “Reconstructing Self-Determination: A Relational Approach,” in Pekka Aikio and Martin Scheinin, Furthermore, it is feared that defining eds., Operationalizing the Right of Indigenous “peoples” as including Indigenous peoples might Peoples to Self-Determination (Turku/Åbo, Finland: result in a “slippery slope,” wherein other groups Institute for Human Rights, Åbo Akademi will expect recognition as “peoples.” It is feared University, 2000) 19 at 25-26; Hurst Hannam, that this would ultimately lead to instability and “Rethinking Self-Determination” (1993) 34 Va. J. political unrest.37 Instead, states often prefer to Int’l L. 1 at 23-24. 34 define such groups, including Indigenous peoples, With regard to the potential for pursuing external self-determination, the Draft Declaration on the as “minorities.” There is significant and Rights of Indigenous Peoples (Commission on Human Rights, Explanatory note concerning the constitutes “peoples” and how possible definitions of Draft Declaration on the Rights of Indigenous “peoples” are tied to issues of territory, boundaries, and Peoples, U.N. Doc.E/CN.4/Sub.2/1993/26/Add.1 (19 the potential for secession (Patrick Macklem, July 1993) para. 21 [provisional] states: “Normative Dimensions of an Aboriginal Right of Self- Government” (1995-1996) 21 Queen’s L.J. 185 at 200 Once an independent State has been established [Macklem, “Normative”]). and recognized, its constituent peoples must try to express their aspirations through the national There is also somewhat of a parallel between the political system, and not through the creation of concept of self-determination as used by Indigenous new States. This requirement continues unless peoples and the concept as used by the Québécois, the national political system becomes so particularly with regard to sovereignty and secessionist exclusive and non-democratic that it no longer claims. There has been and continues to be a strong can be said to be “representing the whole secessionist undercurrent among some Quebecers, people.” At that point, and if all international and which has waxed and waned over the past decades. diplomatic measures fail to protect the peoples Canada faces political difficulty with the concept of concerned from the State, they may perhaps be self-determination for “peoples,” including Aboriginal justified in creating a new State for their safety peoples, because this concept is used by Québécois as a and security. key argument supporting the right of that province to secede from Canada and form its own country. International law has not recognised the right of 35 See Alfredsson, supra note 30 at 65-66, 71-78. Indigenous peoples’ self-determination precisely due 36 See Iorns, supra note 28 at 215-217, 220, 222-228. to the tensions which exist surrounding who 37 Coulter, “Indigenous Peoples,” supra note 20 at 13.

Working Paper 2005(1) © IIGR, Queen’s University 7 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination contentious debate over whether Indigenous conditions of colonisation.41 A second approach peoples, including Aboriginal peoples in supports the application of self-determination only Canada, constitute minorities rather than peoples to the entire population of a state as a whole.42 The or nations. This debate includes significant third approach endorses self-determination for cultural, historical, and territorial issues which groups based solely on the “strength of ethnic are beyond the scope of this article.38 cohesion or accounts of historical sovereignty,” but this approach is not often supported in Ultimately, most states need not fear the international law due to inattention given to threat of secession by Indigenous peoples. While territorial or state boundaries.43 many might argue for a right to unilaterally secede under international law, “international Anaya postulates a plausible alternative to law neither forbids nor supports secession”39 these approaches. He emphasises the significance because it is neither proscribed nor sanctioned as attached to the interdependencies which exist a legal right.40 Additionally, as noted earlier, in among individuals, groups, and states in the the context of Aboriginal peoples in Canada, contemporary realm.44 He suggests that most groups do not seek secession or other associations between the varying levels of society, external mechanisms of self-determination. both domestically and globally, are key to explaining “[t]he term peoples as it relates to a S. James Anaya emphasises internal modes contemporary understanding of self- of self-determination, but he does so in tandem determination.”45 Aboriginal peoples should not with defining “peoples.” He outlines three be denied recognition as peoples, but recognition competing approaches to self-determination that should not be based on issues of territory, are generally applied when attempting to define ethnicity, or history alone. Anaya states the “peoples.” The first denies that self- following: determination applies to any populations within territories unless they are subject to classical The limited conception of “peoples,” accordingly, largely ignores the multiple, overlapping spheres of community, authority, and interdependency that actually 38 For further discussion on the debate see RCAP, exist in human experience. Humanity supra note 7 at paras. 997-1027, 5719-5727; effectively is reduced to units of Macklem, “Normative,” supra note 34 at 211-215; organization defined by a perpetual grip of Patrick Macklem, “Distributing Sovereignty: Indian statehood categories; the human rights Nations and Equality of Peoples” (1992-1993) 45 character of self-determination is thereby Stan. L. Rev. 1311 at 1353-1355; Will Kymlicka, obscured, as is the relevance of self- Multicultural Citizenship: A Liberal Theory of determination values in a world that is less Minority Rights (Oxford: Clarendon Press, 1995); and less state centered. … Group challenges Richard Spaulding, “Peoples as National Minorities: to the political structures that engulf them A Review of Will Kymlicka’s Arguments for appear to be not so much claims of absolute Aboriginal Rights from a Self-Determination Perspective” (1997) 47:1 U.T.L.J. 35; John Borrows, “Uncertain Citizens: Aboriginal Peoples and the 41 Anaya, Indigenous, supra note 3 at 77. This is also Supreme Court” (2001) 80 Can. Bar Rev. 15; known as the “salt water thesis” or the “blue water Leighton McDonald, “Regrouping in Defence of thesis.” The thesis restricts the right of self- Minority Rights: Kymlicka’s Multicultural determination to colonies that are separated by ocean or Citizenship” (1996) 34:2 O.H.L.J. 291. sea from the colonisers. In this instance, self- 39 Robert Coulter, “The Possibility of Consensus on determination powers do not extend to Indigenous the Right of Self-Determination in The UN populations within the colonies, but rather, to the and OAS Declarations on the Rights of Indigenous colonies as whole entities (see Ibid. at 43, 60 n. 29). Peoples,” Draft Discussion Paper, Indian Law 42 Ibid. Resource Center, Helena, Montana, 18 October 2002 43 Ibid. at 78. at 5 [Coulter, “Possibility of Consensus”]. 44 Ibid. at 79. 40 Ibid. 45 Ibid. at 78.

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political autonomy as they are efforts to is seen in the working definition originally secure the integrity of the group while proposed by the United Nations Study on rearranging the terms of integration or Indigenous Populations. While it is lengthy, its rerouting its path.46 inclusion is warranted due to the historical information and defining features it offers The significance of this passage is the regarding who constitutes Indigenous peoples. It multidimensional approach that Anaya takes in reads as follows: defining the relationship that exists between “peoples” and self-determination. This Indigenous communities, peoples and relationship is multifaceted, existing in a world nations are those which, having a historical where there is continual and increasing continuity with pre-invasion and pre- integration on a global level between states and colonial societies that developed on their peoples within states.47 territories, consider themselves distinct from other sectors of the societies now prevailing Additionally, Anaya’s approach emphasises on those territories, or parts of them. They the role played by internal forms of self- form at present non-dominant sectors of determination, not independent statehood or society and are determined to preserve, outright political separation. Such develop and transmit to the future interdependence is relevant in the Canadian generations their ancestral territories, and context, arguably reducing fears of secession as their ethnic identity, as the basis of their a priority of most Aboriginal groups in Canada. continued existence, as peoples, in However, what does this mean for Indigenous accordance with their own cultural patterns, populations? In light of the competing social institutions and legal systems. definitions of “peoples,” do Indigenous groups qualify? The historical continuity may consist of the continuation, for an extended period Indigenous groups have histories that are reaching into the present, of one or more of directly linked to the history of classical the following factors: colonialism. This results in very complex and distinctive definitions of Indigenous peoples, (a) Occupation of ancestral lands, or at least including how their pre- and post-contact of part of them; societies might be described, how their societies (b) Common ancestry with the original were and continue to be connected to their occupants of these lands; territories, and the ultimate impact of (c) Culture in general, or in specific colonialism on Indigenous traditions, cultures, manifestations (such as religion, living institutions, and laws. Essentially, their histories under a tribal system, membership of an make defining Indigenous populations a Indigenous community, dress, means of multifaceted and complex task. Such complexity livelihood, life-style, etc.); (d) Language (whether used as the only 46 Ibid. at 78-79 (emphasis added). language, as mother-tongue, as the habitual 47 Ibid. at 79. Anaya further depicts this integration means of communication at home or in the and interdependence in the Great Law of Peace as family, or as the main, preferred, habitual, envisioned by the Iroquois Confederacy, or the general or normal language); Haudenosaunee. The Great Law of Peace refers to a (e) Residence in certain parts of the country, huge tree which has roots which extend in all or in certain regions of the world; directions to all peoples in the world. All of these (f) Other relevant factors. peoples are invited to follow the roots of the tree, and take part in peaceful coexistence under the long On an individual basis, as Indigenous person leaves of the tree. This conception promotes unity is one who belongs to these Indigenous among individuals, groups, and nations, while still allowing for “the integrity of diverse identities and populations through self-identification as spheres of autonomy” (ibid.). Indigenous (group consciousness) and is

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recognized and accepted by these scope of this paper to discuss in detail which populations as one of its members Indigenous peoples might be characterised as (acceptance by the group). “peoples,” but the above discussion is relevant for outlining some of the significant issues. This preserves for these communities the sovereign right and power to decide who (c) Applying the Right of Self-Determination belongs to them, without external to Indigenous Peoples under International interference.48 Law While the specific form that self- While this working definition is very useful determination should take is discussed minimally in its degree of detail, as noted earlier in the related literature, internal forms of self- international law does not have a formal determination are usually epitomised as more definition of who constitutes peoples. feasible and appropriate than are external forms.51 Nevertheless, there are various approaches to For example, as noted above, Anaya places a great defining Indigenous populations as “peoples.” deal of emphasis on internal forms of self- Most importantly, Indigenous populations view determination. He argues that fears of secession themselves as peoples. For example, at the are unfounded since most Indigenous peoples’ second general assembly of the World Council goals are realistic within the context of “parent” of Indigenous Peoples, the “International Indian states. Equally important, and as noted earlier, Treaty Council described Indigenous international law does not recognise a legal right populations as ‘composed of nations and to secession for peoples within a state, ultimately peoples, which are collective entities entitled to reducing the potential for seceding successfully.52 and requiring self-determination…’.”49 Erica- Irene Daes describes a “people” along the following lines: 51 See Alfredsson, supra note 30 at 60-79 for an in- depth assessment of various forms of internal and external self-determination. Whether a group constitutes a “people” for 52 the purposes of self-determination While secession might arguably lead to the political creation of a new state, the new state must also receive depends, in my view, on the extent to international legal recognition of its new status as a which the group making a claim shares nation. As the Supreme Court of Canada discussed in ethnic, linguistic, religious or cultural the Quebec Secession Reference, such recognition is, in bonds, although the absence or weakness part, dependent on the legitimacy of the secession of one of these bonds or elements need not process (see Reference Re Secession of Quebec, [1998] invalidate a claim. The extent to which 2 S.C.R. 217 at paras 142-143 [Quebec Secession members within the group perceive the Reference]. It would appear that such international group’s identity as distinct from the legal recognition might be very difficult for Indigenous identities of other groups should be peoples to secure in light of the fact that international evaluated according to a subjective law normally defers to the domestic law of the state in question. In this instance, unilateral secession from the standard.50 Canadian state would be deemed unconstitutional, under both Canadian common law and international According to this definition, it would appear that law. While international law does not explicitly most Indigenous peoples, including Aboriginal prohibit unilateral secession, the Supreme Court did peoples in Canada, could fall under this provide the following clarification in the Quebec depiction. However, it is argued here that this is Secession Reference: “The notion that what is not a much more complex issue. It is beyond the explicitly prohibited is implicitly permitted has little relevance where…international law refers the legality of secession to the domestic law of the seceding state 48 United Nations, Study on Indigenous Populations, and the law of that state holds unilateral secession to be U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4 at 50-51. unconstitutional (ibid. at para. 143). For further 49 Macklem, “Normative,” supra note 34 at 200. information pertaining to this international legal norm, 50 Daes, “Right of Indigenous Peoples,” supra note see Hugh Kindred, et al., International Law: Chiefly as 19 at 50. Interpreted and Applied in Canada, 6th ed. (Toronto:

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This debate over the form that self- lands.55 These characteristics are combined to determination should take is part and parcel of demonstrate the distinctiveness of Indigenous the larger debate concerning the recognition of peoples from other groups. Indigenous peoples as holders of the right of self-determination. This broader discussion is Additionally, Coulter provides further claims exemplified in the Draft Declaration on the in support of Indigenous self-determination Rights of Indigenous Peoples inasmuch as the beyond the uniqueness of Indigenous peoples. related negotiations have sought to determine Coulter maintains that Indigenous ways of life, whether Indigenous peoples have a right of self- including Indigenous cultures, social institutions, determination and to what extent that right languages, and spiritual traditions are “gravely should be recognised and protected. However, threatened by the dominant societies.”56 the mere existence of the Draft Declaration, and Indigenous peoples experience this threat the fact that negotiations have been occurring for irrespective of their historical recognition as many years, indicates that under international nations, despite the legally-binding treaties into law, Indigenous populations have made gradual which they entered, and regardless of the fact that progress in gaining recognition as “peoples.” they “pre-date the states where they are located.”57 Even though there is no firmly-established Further, most Indigenous peoples have been international legal definition of “peoples,” and excluded from constitutional state-building58 and no formal recognition of Indigenous self- political participation, and they have been determination under international law, it is “forcibly or wrongfully deprived of their lands becoming increasingly acceptable under and resources…, suffered unjust warfare, international law to recognise Indigenous discrimination, and the suppression of their communities as “peoples” and “nations” who are political, social and cultural rights.”59 Finally, entitled to some degree of self-determination. Coulter notes that Indigenous peoples are still subjected to political and economic situations For example, Robert Coulter asserts this which resemble former vestiges of colonialism, contention, providing an abundance of such as minimal power within states, high levels supporting claims for internal forms of self- of discrimination, and social injustice.60 Coulter determination. Coulter seeks to demonstrate how maintains this set of claims to demonstrate the Indigenous peoples are unique from other need for Indigenous peoples to have a right of “minority” populations. For Coulter, this self-determination so as to protect their rights, inherent difference means that Indigenous restore control over their lives, and rebuild the peoples should be treated as peoples with societies that were taken from them. internal self-determination rights, and consequently, such rights are not warranted for Erica-Irene Daes is also a strong supporter of other “minority” groups.53 Coulter asserts that an Indigenous right of self-determination. She many Indigenous peoples are legally recognised argues that the Draft Declaration on the Rights of “as distinct political or social entities” with on- Indigenous Peoples should include the following going social activities, practices, norms, and important paragraph: institutions; they are organised as communities that are historical and current, independent, and Indigenous peoples have the right to self- self-governing.54 Most Indigenous peoples “had determination in accordance with or still have a definite or distinct territory and international law, subject to the same criteria legally defined membership,” and they stress the importance of their connectedness to their 55 Ibid. 56 Ibid. 57 Ibid. Emond Montgomery Publications Limited, 2000) at 58 Erica-Irene Daes also confirms this point (see Daes, 131, 281 [Kindred et al.]. “Right of Indigenous Peoples,” supra note 19 at 53). 53 Coulter, “Indigenous Peoples,” supra note 20 at 13. 59 Coulter, “Indigenous Peoples,” supra note 20 at 13. 54 Ibid. 60 Ibid. at 13-14.

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and limitations as applied to other peoples Andrew Orkin and Joanna Birenbaum, this in accordance with the Charter of the application was significant because it applied the United Nations. By virtue of this, they notion of “peoples” and the right of self- have the right, inter alia, to negotiate and determination as embodied in Article 1 to agree upon their role in the conduct of Aboriginal peoples in Canada, adding to the public affairs, their distinct currency and relevance of these terms in the responsibilities, and the means by which Canadian context.64 The Concluding Observations they manage their own interests.61 included the following pertinent statement:

In addition to this argument, Daes notes the The Committee notes that, as the State Party relevance of Article 31 of the Draft Declaration acknowledged, the situation of the in support of internal forms Indigenous self- Aboriginal peoples remains ‘the most determination. She asserts that Article 31 pressing human rights issue facing provides general guidelines for the exercise of Canadians.’ In this connection, the Indigenous self-determination rights through Committee is particularly concerned that the “autonomy or internal self-government within State Party has not yet implemented the existing states.”62 Article 31 states the following: recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With Indigenous peoples, as a specific form of reference to the conclusion by RCAP that exercising their right to self- without a greater share of lands and determination, have the right to autonomy resources institutions of Aboriginal self- or self-government in matters relating to government will fail, the Committee their internal and local affairs, including recommends that the right of self- culture, religion, education, information, determination requires, inter alia, that all media, health, housing, employment, peoples must be able to freely dispose of social welfare, economic activities, land their natural wealth and resources and that and resource management, environment they may not be deprived of their own and entry by non-members, as well as means of subsistence (art. 1, para. 2). The ways and means for financing these Committee recommends that decisive and autonomous functions.63 urgent action be taken towards the full implementation of the RCAP While even internal forms of Indigenous recommendations on land and resource self-determination are not yet formally allocation. The Committee also recommends recognised under international law, progress can that the practice of extinguishing inherent be seen, as evident in the Concluding Aboriginal rights be abandoned as Observations of the United Nations Committee incompatible with article 1 of the on Economic, Social and Cultural Rights Covenant.65 (CESCR) and the United Nations Human Rights Committee (HRC) in December 1998 and March Despite this apparent progress, the debate over 1999 respectively. At the time, these two whether Indigenous peoples constitute “peoples” committees had undertaken analyses of under international law continues.66 While various Canada’s human rights record with regard to Aboriginal peoples. While previous assessments had occurred, this was the first time that the 64 Andrew Orkin and Joanna Birenbaum, “Aboriginal CESCR and HRC had applied Article 1 of both Self-Determination within Canada: Recent the ICESCR and the ICCPR. As argued by Developments in International Human Rights Law” (1999) 10:4 Const. Forum Const. 112 at 114. 65 Human Rights Committee, Concluding Observations 61 Daes, “Right of Indigenous Peoples,” supra note on Canada, 65th Session, CCPR/C/79/Add.105 (7 April 19 at 54. 1999) (emphasis added). 62 Ibid. at 55 (emphasis in original). 66 For further analysis of this ongoing debate see 63 Draft Declaration, supra note 28. Alfredsson, supra note 30 at 63-65.

Working Paper 2005(1) © IIGR, Queen’s University 12 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination states are gradually supporting some internal 3. SELF-DETERMINATION OF “PEOPLES” form of self-determination powers for IN THE CANADIAN CONTEXT Indigenous populations, this right has not yet What does this mean for Aboriginal groups in been formally recognised under international Canada? Do they constitute “peoples”? Can and law and a consensus among states has not yet should international legal norms be replicated in been achieved.67 Nevertheless, the fact that some Canada? The following discussion will examine states, including Canada, are starting to emulate the Canadian context with an eye to evaluating the international consideration of Indigenous whether Aboriginal groups in Canada constitute peoples as constituting “peoples” and “nations” “peoples” with a right of self-determination. gives credence to Alan Cairns’ emphasis on the role of international law affecting the domestic (a) Replicating International Legal Norms of laws of states. Self-Determination in the Canadian Context However, even at the level of preliminary, Applying international legal norms to the informal recognition of Indigenous peoples as Canadian context is not necessarily a cut-and- “peoples” under international law, the right of dried affair. There are several sources of self-determination is still expected to be internal international law, including the following: in nature. This is primarily due to the conventional international law, consisting of international legal recognition of the sovereignty treaties70; customary international law, which is of states and respect for territorial boundaries; developed by state practice over time;71 and potential secession of Indigenous populations would seriously hinder the territorial integrity of states. However, this does not mean that external self-determination should not be a right accorded to Indigenous peoples in appropriate International Law concerning Friendly Relations and circumstances, nor does it mean that the present Co-operation among States in accordance with the author does not support such a right. Instead, as Charter of the United Nations, GA Res. 2625 (XXV), others have noted, the right of external self- 24 October 1970 (Declaration on Friendly Relations). For further discussion see Kindred et al., supra note 52 determination may be a crucial component for at 53-56. some Indigenous groups, particularly those 70 Treaties are also called conventions. According to suffering from wrongful domination, oppression, the Vienna Convention on the Law of Treaties, a treaty 68 and colonialism. This is a significantly large is defined as “an international agreement concluded and complex issue, warranting further between States in written form and governed by assessment in another forum.69 international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (Vienna 67 Daes, “Right of Indigenous Peoples,” supra note Convention on the Law of Treaties, 22 May 1969, 1155 19 at 55; Coulter, “Possibility of Consensus,” supra U.N.T.S. 331, Can. T.S. 1980 No. 37 (entered into note 39. force 27 January 1980), Article 2(1)(a)). 68 For example, see Coulter, “Possibility of 71 As noted by Joanna Harrington, customary Consensus,” ibid. at 5; Daes “Right of Indigenous international law “is the original source of international Peoples,” supra note 19 at 51-55; Erica-Irene Daes, law… . Not all acts of state practice, however, “Some Considerations on the Right of Indigenous constitute customary law.” Customary law finds its Peoples to Self-Determination” (1993) 3 Transnat’l source in reasonably consistent state practice. “It must L. & Contemp. Probs. 1 at 6-7. be constant and uniform, and it must be fairly common 69 Under international law, a right of external self- to a significant number of states.” However, in order determination, including secession, is permitted for a norm of customary international law to be under specific circumstances, usually as a basis for recognised, it is also necessary for states to “recognize “decolonisation of dependent territories,” but also it as binding upon them as law. In other words, the state under conditions where there is the denial of practice must be accompanied by a belief that the fundamental human rights, extreme domination, or practice is obligatory, rather than merely convenient or subjugation. These provisions are laid out in the U.N. habitual” (see Harrington, supra note 26 at 5; Kindred General Assembly's Declaration on Principles of et al., supra note 52 at 5-9, 129-133).

Working Paper 2005(1) © IIGR, Queen’s University 13 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination general principles found in judicial decisions (i) Indian Status and Lovelace: Application of and scholarly writing.72 International law The case of Sandra Lovelace v. Canada76 is While customary international law is important, most notably in the way that it applicable in the Canadian context, it is demonstrates the influence of international law on necessary for it to be treated as obligatory in Canadian law. This case was decided in 1981, order for it to take its full effect. “To the extent prior to the enactment of the Canadian Charter of that customary law can be established, it is as Rights and Freedoms. In this case, Sandra binding on Canada as ratified treaties. Lovelace had lost her Indian status under the [Fortunately,] [c]ustomary international law is Indian Act77 because she married a non-status thought to be the law of the land, subject of man. Upon the dissolution of her marriage, she course to the right of the legislature to override it was denied the right to return to the Tobique by enacting a statute.”73 Conventional reserve where she had been born and raised, and international law includes self-implementing had spent the majority of her life, because she had treaties and non-self-implementing treaties. lost her Indian status. While Canada might be a signatory to non-self- implementing treaties, such agreements are The United Nations Human Rights Committee unenforceable under Canadian domestic law decided that the Canadian government was in unless they are legislatively implemented by breach of Article 27 of the ICCPR, to which Parliament.74 Consequently, it is not possible to Canada is a signatory. Article 27 provides: “In assume the application of conventional those States in which ethnic, religious or linguistic international law in the Canadian context. While minorities exist, persons belonging to such international legal norms certainly inform minorities shall not be denied the right, in Canadian law, including “statutory interpretation community with the other members of their group, and judicial review,”75 it is necessary for Canada to enjoy their own culture, to profess and practise to play an active role in adhering to international their own religion, or to use their own language.” legal norms. This is relevant in the context of the The United Nations Human Rights Committee right of Indigenous self-determination under decided that the Canadian government had international law and whether it is applicable to breached Article 27 by continuing to deny Sandra Aboriginal peoples in Canada. Lovelace “the opportunity to live on the reserve, the only place that she could practice her culture 78 72 As clarified by Harrington, there is significant in community with other members of the group.” debate surrounding the potential of these sources to Consequently, the discrimination incurred by constitute international law. However, she does Lovelace, and all Indian women who married non- clarify that judicial decisions of international judicial Indian men, as a result of s. 12(1)(b) of the Indian bodies are relevant, as are national court judicial Act, was in conflict with the civil and political decisions, which hold “weight as…law-identifying rights as outlined in the aforementioned source[s] for international law.” Scholarly writing is International Covenant. generally given less weight as a “subsidiary source of international law,” with reference given only to those who are most highly qualified in their fields (see Ibid. This decision “was considered a landmark at 6-7). Other sources of international law might case because there was a recognition of ‘a right include the normative value of decisions and for minority groups and their members to define standards of certain international organisations, but these are more likely to simply add “normative value towards the establishment of customary laws” (Ibid. at 7). For further discussion see Kindred et al., supra 76 Sandra Lovelace v. Canada, Communication No. note 52 at 154-157. R.6/24, Report of the Human Rights 73 Ibid. at 19. Committee, U.N. GOAR, 36th Sess., Supp. No. 40, at 74 Ibid. at 18. 166, U.N. Doc. A/36/40, Annex 18 (1977) (views 75 Baker v. Canada (Minister of Citizenship and adopted Dec. 29, 1977) [Lovelace]. Immigration), [1999] 2 S.C.R. 817 at para. 70, cited 77 Indian Act, R.S.C. 1970, c.I-6, s. 12(1)(b). in Harrington, supra note 26 at 19. 78 Lovelace, supra note 76 at 1.

Working Paper 2005(1) © IIGR, Queen’s University 14 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination themselves’,”79 including the significance of acting on Lovelace the Canadian government cultural and familial connections to one’s overall demonstrated that it concurred with the identity. Most significantly, this decision helped Committee’s decision. lead to the introduction and implementation by the Canadian Parliament of Bill C-31, the main Additionally, the relevance of the Lovelace purpose of which was to reinstate Indian status case is demonstrated in the effect that to those who had lost it under the discriminatory international law can have on Canadian law. The provisions of the Indian Act.80 Ultimately, in case demonstrates the seriousness with which the United Nations Human Rights Committee viewed 79 Margaret Jackson, “Aboriginal Women and Self- the violation of the rights in question, while the Government,” in John Hylton, ed., Aboriginal Self- creation of Bill C-31 as the Government’s Government in Canada: Current Trends and Issues response indicated Canada’s acceptance of (Saskatoon: Purich Publishing, 1994) 181 at 182. Lovelace and its provisions as set out by the 80 Ibid. The amendments became part of the Indian United Nations Human Rights Committee. Act, R.S.C. 1985, c. I-5. The significance of this bill for those Aboriginal women who had lost their status (ii) Applying International Legal Norms: cannot be overemphasized. However, there has “Peoples” in Canada occurred among many Aboriginal communities great Canada is both a member of the United difficulty, and even inability, to maintain sufficient Nations and a signatory to the Charter of the resources to cover the increased costs of new and returning Aboriginal members. In other words, Bill United Nations and relevant international C-31 had the effect of increasing the financial burden covenants, such as the ICCPR and the ICESCR. on many Aboriginal communities who must now Additionally, Canada supports the right of internal provide for those members who previously had been forms of self-determination for Aboriginal groups, excluded. Consequently, some groups fought against as noted at the Commission on Human Rights Bill C-31, and therefore, have fought against the Working Group on the Draft Declaration on the renewed rights of those Indian women who have Rights of Indigenous Peoples: been discriminated against. Consequently, many Aboriginal women are concerned that their rights will Our goal at this working group will be to continue to be infringed simply within the climate of develop a common understanding, exclusion and subjugation that was created and fostered in Aboriginal societies through the consistent with evolving international law, implementation of Eurocentric values. This, in turn, is of how this right is to apply to Indigenous related to the much larger question of whether the collectivities, and what the content of this Canadian Charter of Rights and Freedoms should be right includes. Once achieved, this common applied to Aboriginal self-governing arrangements so understanding will have to be reflected in as to protect the rights of Aboriginal women. See the wording of Article 3. Wendy Moss, “Indigenous Self-Government in Canada and Sexual Equality Under the Indian Act: [T]he Government of Canada accepts a right Resolving Conflicts Between Collective and of self-determination for Indigenous peoples Individual Rights” (1990) 15:2 Queen’s L.J. 279 at which respects the political, constitutional 295-296; Joyce Green, “Constitutionalising the Patriarchy: Aboriginal Women and Aboriginal and territorial integrity of democratic states. Government” (1993) 4:4 Const. Forum Const. 110 at In that context, exercise of the right involves 110, 113; Mary Ellen Turpel, “Patriarchy and negotiations between states and the various Paternalism: The Legacy of the Canadian State for Indigenous peoples within these states to First Nations Women,” (1993) 6:1 C.J.W.L. 174 at determine the political status of the 181; Kent McNeil, “Aboriginal Governments and the Indigenous peoples involved, and the means Canadian Charter of Rights and Freedoms,” in Kent of pursuing their economic, social and McNeil, Emerging Justice?: Essays on Indigenous cultural development.81 Rights in Canada and Australia (Saskatoon, Saskatchewan: Native Law Centre, University of Saskatchewan, 2001) 215. See also Kent McNeil, “Aboriginal Governments and the Charter: Lessons 81 Commission on Human Rights, 53rd Session, from the United States (2002) 17 C.J.L.S. 73. Statements of the Canadian Delegation (31 October

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Government of Canada. Arguably, when viewed This Canadian position was reiterated in together with the previous quotation made by the 2000 at the Commission Working Group on the Canadian delegation at the Commission on Draft Declaration, and it is still Canada’s Human Rights Working Group, the position of the current position.82 Similar sentiments are evident Government of Canada becomes clear with regard in the “Statement of Reconciliation: Learning to the right of Aboriginal self-determination. It from the Past,” which is part of a larger report light of these statements, it would appear that the entitled, “Gathering Strength: Canada’s Government of Canada supports Aboriginal self- Aboriginal Action Plan,” released by the federal determination, however, it must be internal in government in 1997. The Statement, referring to nature, while respecting the territorial integrity of the Aboriginal peoples of Canada, states: Canada.

For thousands of years before this country Moreover, it is argued that Canada views as was founded, they enjoyed their own important the adoption and support of forms of government. Diverse, vibrant international legal norms as they relate to Aboriginal nations had ways of life rooted Aboriginal peoples. It is seemingly apparent from in fundamental values concerning their the above statements that Canada recognises relationships to the Creator, the Aboriginal populations as constituting “peoples” environment, and each other, in the role of with internal self-determination rights, as per the Elders as the living memory of their emerging standards of international law. However, ancestors, and in their responsibilities as the definition of Aboriginal populations as custodians of the lands, waters and “peoples” in the Canadian context is still vague. resources of their homelands. … The As discussed earlier in this paper, there is no Government of Canada recognizes that precise formal definition of “peoples” or of who policies that sought to assimilate constitutes “peoples,” either under international Aboriginal people, women and men, were law or in the Canadian context. Yet, a further- not the way to build a strong country. We developed definition of “peoples” would be useful must instead continue to find ways in in clarifying and solidifying the place of which Aboriginal people can participate Aboriginal peoples in Canadian society as fully in the economic, political, cultural “peoples” and “nations” with a right of self- and social life of Canada in a manner determination. which preserves and enhances the collective identities of Aboriginal (b) Canadian Legal Analyses of “Peoples” and communities, and allows them to evolve “Self-Determination” and flourish in the future.83 In addition to a small number of relevant While the above quotation does not deal directly judicial decisions, the Royal Commission on with the right of Aboriginal self-determination, Aboriginal Peoples (RCAP) offers important it does demonstrate the attitude that the insight into Aboriginal populations as constituting “collective identities” of Aboriginal peoples “peoples” with a right of self-determination. The must be respected and safeguarded by the following discussion will review some of the central arguments made by the RCAP to this effect, in addition to undertaking a legal analysis 1996), Statement on Article 3, the Right to Self- of two central judicial decisions related to the Determination (emphasis added). subject. The purpose herein is to develop a more 82 Coulter, “Possibility of Consensus,” supra note 39 advanced, concrete definition of how to define at 4. 83 Aboriginal “peoples” in the Canadian context in Minister of Indian Affairs and Northern order to allow for greater ease in applying a right Development, Gathering Strength: Canada’s of self-determination beyond the international Aboriginal Action Plan (Ottawa: Public Works and Government Services Canada, 1997) at 4-5 (emphasis arena, in the Canadian context. added).

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(i) Royal Commission on Aboriginal Peoples: size and capacity to enable it to assume and Defining Aboriginal Peoples exercise powers and responsibilities flowing from the right of self-determination in an One of the central sources dealing with the effective manner; and it constitutes a issue of defining Aboriginal communities as majority of the permanent population of a constituting “peoples” is the RCAP Report, certain territory or collection of territories released in 1996. Volume 2, entitled, and, in the future, will operate from a “Restructuring the Relationship,” assesses defined territorial base.86 various factors which can help to determine which Aboriginal peoples in Canada can be While this definition is not necessarily classified as “peoples” with a right of self- complete, it does allude to issues of identity and determination, thereby providing some insight culture as discussed in earlier statements regarding into defining “peoples,” more generally, within the international legal context. It also incorporates the Canadian federation.84 For instance, the the relevance of territories and a permanent and RCAP Report asserts the basic premise that “sizeable” population as important components of Aboriginal peoples are nations vested with self- Aboriginal “nationhood.” It suggests that, by determination powers.85 The RCAP Report limiting the right of self-determination to sizeable clarifies this further in the following detailed Aboriginal nations, a balance is struck between quotation: very small Aboriginal communities and much larger Aboriginal populations: By Aboriginal nation, we mean a sizeable body of Aboriginal people with a shared Which Aboriginal groups hold the right of sense of national identity that constitutes self-determination? Is the right vested in the predominant population in a certain small local communities of Aboriginal territory or group of territories. There are people, many numbering fewer than several 60 to 80 historically based nations in hundred individuals? Were this the case, a Canada at present, comprising a thousand village community would be entitled to opt or so local Aboriginal communities. for the status of an autonomous governmental unit on a par with large-scale Aboriginal peoples are entitled to identify Aboriginal groups and the federal and their own national units for purposes of provincial governments. In our opinion, this exercising the right of self-determination. would distort the right of self-determination, … which as a matter of international law, is vested in ‘peoples.’ Whatever the more The more specific attributes of an general meaning of that term, we consider Aboriginal nation are that the nation has a that it refers to what we will call ‘Aboriginal collective sense of national identity that is nations.’87 evinced in a common history, language, culture, traditions, political consciousness, The above statements provide significant laws, governmental structures, spirituality, descriptive detail about how to define Aboriginal ancestry and homeland; it is of sufficient “peoples.” Equally important, the RCAP Report demonstrates significant support for the recognition of various Aboriginal communities as 84 Of course, this neither denies nor diminishes the constituting peoples with a right of self- individual right of self-determination, also known as determination. the right to life and liberty, which is accorded to everyone, provided that such a right is exercised (ii) The Quebec Secession Reference: Self- within the confines of law (Canadian Charter of Determination and “Peoples” Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, s. 7). 86 Ibid. at paras. 454-455, 5757-5760. 85 RCAP, supra note 7 at para. 543. 87 Ibid. at para. 5729.

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of attention given to Aboriginal peoples in this Canadian common law, and in particular case. This was because the Court determined that Supreme Court judgments, have not dealt with Quebec could not unilaterally secede under the right of self-determination of “peoples” to Canadian constitutional law or international law, any great extent. While there are a few and therefore the specific questions raised by exceptions, the common law system has tended various Aboriginal groups were not relevant at to treat these issues as falling under the general that time, but instead, would become relevant rubric of international law, and therefore, less under the above-noted conditions.89 relevant in Canadian cases. Despite this general inattention, it is important to assess two key Nevertheless, the Court did spend a significant rulings in order to demonstrate the ways in amount of time discussing the concept of self- which international legal norms, as they relate to determination and its portrayal as a right accorded Indigenous peoples and the right of self- to peoples. While the Court was looking at these determination, have been replicated in the issues as they relate to Quebec, it is asserted here context of Canadian law. This, in turn, will that the Supreme Court’s definitions of “peoples” confer further legitimacy on the claim that and “self-determination” are also applicable to Aboriginal populations constitute “peoples” in Aboriginal peoples in Canada. Canada. Specifically, the Court noted that The Quebec Secession Reference88 provides “international law places great importance on the fairly recent insight into how the Supreme Court territorial integrity of nation states and, by and of Canada defines “peoples” and “self- large, leaves the creation of a new state to be determination,” both under international law and determined by the domestic law of the existing in the Canadian context. The applicable facets of state of which the seceding entity presently forms international law were discussed earlier in this a part.”90 This statement is important in that it article, and therefore, there is no need to go into demonstrates one aspect of the relationship further detail in this regard. However, it is between international law and domestic law: important to note the ways in which the international law defers to domestic law on Supreme Court has applied international law to questions of territorial integrity and jurisdictional the Canadian context in defining “peoples” and issues. “self-determination.” The Court proceeded to note that “[t]he While the Quebec Secession Reference dealt existence of the right of a people to self- with the potential for Quebec to unilaterally determination is now so widely recognized in secede from the Canadian state, Aboriginal international conventions that the principle has peoples were only briefly mentioned. In acquired a status beyond ‘convention’ and is particular, the Supreme Court noted that in considered a general principle of international negotiating the potential for Quebec secession, law.”91 However, the Court asserted that after a clear majority of Quebecers vote on a “international law expects that the right to self- clear referendum question in support of determination will be exercised by peoples within secession, the rights of various cultural and the framework of existing sovereign states and linguistic minority groups in Quebec would need consistently with the maintenance of territorial to be taken into consideration. The Court integrity of those states. Where this is not deemed this as appropriate and fair to all of the possible, in…exceptional circumstances…, a right parties affected by negotiations. While the Court of secession may arise.”92 recognised that the interests of Aboriginal peoples, many of whom live in the northern regions of Quebec, would have to be considered 89 Ibid. at paras. 96, 139. in the process of negotiations, this was the extent 90 Ibid. at para. 112. 91 Ibid. at para 114. 88 Quebec Secession Reference, supra note 52. 92 Ibid. at para 122 (emphasis added).

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The Court continued with a definition of determination in terms that are normally who constitutes “peoples,” noting that there is attainable within the framework of an uncertainty under international law. The Court’s existing state. There is no necessary definition of “peoples” is not overly detailed, but incompatibility between the maintenance of this is partly because to do so might restrict the territorial integrity of existing states, various conceptions of “peoples.” Instead, the including Canada, and the right of a Court clarified that a “people” might be just one “people” to achieve a full measure of self- portion of an entire population, and is often determination. A state whose government bound by various factors such as a common represents the whole of the people or language or common culture.93 In addition, it peoples resident within its territory, on a was specified that the right of self-determination basis of equality and without discrimination, as accorded to “peoples” has developed as a and respects the principles of self- human right. The Court made the following determination in its own internal important point: arrangements, is entitled to the protection under international law of its territorial The right to self-determination…is integrity.95 generally used in documents that simultaneously contain references to In other words, the Supreme Court accepts the “nation” and “state.” The juxtaposition of existence of various peoples within the Canadian these terms is indicative that the reference federation. Aboriginal peoples arguably must be to “people” does not necessarily mean the included within this framework, considering the entirety of a state’s population. To restrict fact that they have their own distinct and unique the definition of the term to the population cultures, languages, practices, customs, traditions, of existing states would render the laws, and histories, factors that, as discussed granting of a right to self-determination earlier, are often considered part of “peoplehood.” largely duplicative, given the parallel emphasis within the majority of the source Indeed, the Court has recognised the fact that documents on the need to protect the Aboriginal peoples lived on the land in groups territorial integrity of existing states, and from time immemorial. In the Van der Peet would frustrate the remedial purpose.94 decision the Court affirmed that

Following these explanations the Court when Europeans arrived in North America, assessed internal and external forms of self- aboriginal peoples were already here, living determination, as discussed earlier in this paper. in communities on the land, and While it is not necessary to repeat this participating in distinctive cultures as they information at this point, it should be noted that, had done for centuries. It is this fact, and despite apparent restrictions on external forms of this fact above all others, which separates self-determination, the Court determined that aboriginal peoples from all other minority internal self-determination and territorial groups in Canadian society and which integrity are not fundamentally at odds with each mandates their special legal, and now other; they are not mutually exclusive: constitutional, status. …

While the International Covenant on [T]he fact is that when the settlers came, the Economic, Social and Cultural Rights and Indians were there, organized in societies the International Covenant on Civil and and occupying the land as their forefathers Political Rights do not specifically refer to had done for centuries.96 the protection of territorial integrity, they both define the ambit of the right to self- 95 Ibid. at para. 130. 93 Ibid. at paras. 123-125. 96 Van der Peet, supra note 12 at paras. 30, 33 94 Ibid. at para. 124. (emphasis in original). The second paragraph of this

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This statement serves to illustrate the distinct At issue in Powley was subsection (1) as status attached to Aboriginal peoples by the defining the relevant Aboriginal rights in the case, Supreme Court of Canada. Additionally, it as well as subsection (2) as specifically including includes various crucial components which are the Métis people as entitled to those rights. While relevant to defining “peoples.” For example, it these two subsections have been in effect since the emphasises that Aboriginal peoples were “living patriation of the Canadian Constitution in 1982, s. in communities on the land” and that they had 35 has remained largely ineffective for Métis “distinctive cultures.” These factors speak to the peoples because Canadian governments have importance of territory, cultural practices, and taken “the position that the Métis [have] no community involvement, each of which is existing Aboriginal rights protected by s. 35, important in determining whether a group thereby refusing to negotiate or deal with the constitutes a “people.” It is argued, therefore, Métis people and their rights.”99 that the above illustrates the potential for Canadian common law to treat Aboriginal This has changed with the Powley decision. peoples as “peoples” with the right of self- Steve Powley and Roddy Charles Powley, determination. members of a Métis community near Sault Ste. Marie, had been charged for hunting contrary to At the same time, it is apparent from the the Ontario Game and Fish Act.100 However, both above quotations that the Supreme Court is pleaded not guilty because they claimed an generally supportive of internal forms of self- Aboriginal right to hunt for food in the Sault Ste. determination. While the Quebec Secession Marie locality. They argued further that subjection Reference deals with self-determining powers to the relevant provision of the Game and Fish Act for the Québécois, the Supreme Court is also was a violation of their rights under s.35(1).101 At speaking in general terms about the applicability the trial court level, the Superior Court level, and of international legal norms to Canada regarding the Ontario Court of Appeal, the rulings favoured the right of self-determination for peoples. the Powleys.102 The ruling of the Supreme Court Consequently, it is argued here that the Supreme of Canada was also positive for the Powleys, Court of Canada would support internal forms reaffirming their Aboriginal right to hunt for food of self-determination for Aboriginal peoples if it as Métis people. were formally determined that Aboriginal populations do indeed constitute “peoples” or The Supreme Court dealt with a few issues “nations.” that are relevant for the purposes of this paper. These issues relate to the task of defining (iii) The Powley Decision “peoples,” including more specifically, Métis The Powley97 decision helps to shed further peoples. While defining Métis peoples is light on how “peoples,” including Aboriginal potentially too limited to apply to all Aboriginal peoples, are defined under Canadian common peoples due to the characteristic differences law. Powley dealt with an Aboriginal right to between the Métis and other Aboriginal groups, it hunt for food as applied to Métis people under s. is nevertheless fruitful to assess the Supreme 35 of the Constitution Act, 1982. This case is a Court’s approach to defining the Métis as legal watershed because it represents the first “peoples.” The Court was careful to note that it opportunity for the Supreme Court of Canada to deal with the rights and inclusion of Métis the Indian, Inuit and Métis peoples of Canada” peoples under s. 35.98 (Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11). 99 Métis National Council, Fulfilling Canada’s quotation was originally stated by Judson J. in Calder Promise: Métis Rights Recognized and Affirmed v. A.G.B.C., (1973), 34 D.L.R. (3d) 145 at 156. (Ottawa: Métis National Council, 2003) at 1. 97 R. v. Powley, [2003] 2 S.C.R. 207 [Powley]. 100 Game and Fish Act, R.S.O. 1990, c. G.1, ss.46, 98 More specifically, s. 35(2) delineates the Métis 47(1). people as one of the Aboriginal peoples of Canada: 101 Powley, supra note 97 at para. 6. “In this Act, ‘aboriginal peoples of Canada’ includes 102 Ibid. at para. 7.

Working Paper 2005(1) © IIGR, Queen’s University 20 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination could not attempt to “enumerate the various This last requirement was more vague, with Métis peoples that may exist.”103 However, the the Court providing that the Métis should Court did place sufficient emphasis on how to determine acceptance for themselves. However, define a claimant as Métis for the purposes of the Court did emphasise the importance of entitlement to an Aboriginal right under s. involvement in the community, a shared culture, 35(1).104 The Court limited its analysis to customs and traditions, and overall “contextual “indicating the important components of a future understanding” of the community.109 Once again, definition [of Métis peoples], while affirming the relevance of genuine involvement in and that the creation of appropriate membership tests acceptance by a Métis community was argued as before disputes arise is an urgent priority.”105 crucial in defining Métis identity.

There were three central aspects that the In addition to outlining the requirements for Court enumerated in defining Métis identity for recognition of Métis identity, the Court provided a the purpose of claiming rights under s. 35: self- general definition for the Métis Nation as a whole: identification, ancestral connection, and community acceptance. Self-identification The term Métis in s. 35 of the Constitution requires that an individual identify as a member Act, 1982 does not encompass all of a Métis community. However, such self- individuals with mixed Indian and European identification should not be of “recent vintage” heritage; rather, it refers to distinctive or simply for the purposes of benefiting from a peoples who, in addition to their mixed s. 35 right. In other words, genuine self- ancestry, developed their own customs, and identification as a member of a Métis recognizable group identity separate from community is expected.106 While ancestral their Indian or Inuit and European connection does not require a minimum blood forebears. A Métis community is a group of quantum level, it does require that an individual Métis with a distinctive collective identity, demonstrate that his or her “ancestors belonged living together in the same geographical to the historical Métis community by birth, area and sharing a common way of life.110 adoption, or other means.”107 Finally, in demonstrating Métis identity, it is important for This quotation, along with the defining features of an individual to be “accepted by the modern individual Métis identity, demonstrate the community whose continuity with the historic importance of several factors which were community provides the legal foundation for the discussed earlier as having relevance when right being claimed.”108 defining “peoples.” For example, self- identification, ancestral connection, and

103 Ibid. at para. 12. 109 Ibid. at para. 33. 104 The Court also focused on determining relevant 110 Ibid. at 1 (emphasis added). For further discussion Métis rights under s. 35(1) using the Van der Peet on the distinctiveness of Métis peoples as unique from test, albeit adjusted to account for historical other individuals with mixed Indian and European differences between Métis peoples and other heritage, see John Giokas and Paul L. A. H. Chartrand, Aboriginal peoples with regard to the time of contact “Who are the Métis in Section 35?: A Review of the with and settlement of European settlers. This new Law and Policy Relating to Métis and ‘Mixed-Blood’ test was referred to as a “post-contact pre-control People in Canada,” in Paul L. A. H. Chartrand, ed., test” (see Ibid. at paras. 36-50). However, the scope Who are Canada’s Aboriginal Peoples?: Recognition, of this paper does not require an in-depth legal Definition, and Jurisdiction (Saskatoon, Saskatchewan: analysis of this component of the case. Instead, only Purich Publishing Ltd., 2002) 83; Paul L. A. H. those aspects of the case that are relevant to defining Chartrand and John Giokas, “Defining ‘The Métis “peoples” will be discussed. People’: The Hard Case of Canadian Aboriginal Law,” 105 Ibid. at para. 30 (emphasis in original). in Paul L. A. H. Chartrand, ed., Who are Canada’s 106 Ibid. at para 31. Aboriginal Peoples?: Recognition, Definition, and 107 Ibid. at para. 32. Jurisdiction (Saskatoon, Saskatchewan: Purich 108 Ibid. at para. 33 (emphasis in original). Publishing Ltd., 2002) 268.

Working Paper 2005(1) © IIGR, Queen’s University 21 Jennifer E. Dalton, International Law and the Right of Indigenous Self-Determination community acceptance, along with a shared Nevertheless, this article has shed light on a “common way of life” and “geographical area,” number of important issues relating to the difficult accentuate community, collective identity, and task of defining Aboriginal “peoples” with an culture. In addition, the importance of territory is accompanying right of self-determination. The apparent, while the overall emphasis on form that the right of self-determination should community ultimately includes communal take has been evaluated, ultimately demonstrating activities such as customs and traditions. These that internal forms of self-determination are aspects are strikingly similar to those included in largely workable within nation states. This does Daes’ definition of “peoples” and to the not preclude the right of external self- definition of Aboriginal peoples as constituting determination for peoples under certain “nations,” as discussed in the RCAP Report. circumstances, but this issue was beyond the scope of this paper. While none of these specifications constitute formal recognition of Aboriginal peoples as This article has also discussed various constituting “peoples,” they certainly allow for a approaches to defining “peoples” under more detailed, thorough conception of how international law, with an eye to determining Aboriginal populations, including the Métis, whether Indigenous groups qualify as “peoples” constitute “peoples.” This, in turn, supports the entitled to the right of self-determination. Various argument that, as “peoples,” Aboriginal peoples assertions have been made supporting the claim in Canada should have a right of self- that Indigenous groups are indeed “peoples” with determination, as provided for under a right of internal self-determination. International international law. law has gradually started to define Indigenous peoples as constituting “peoples,” and therefore, 4. CONCLUDING REMARKS: THE CASE as entitled to a right of self-determination. FOR ABORIGINAL PEOPLES’ RIGHT However, this gradual acceptance is by no means OF SELF-DETERMINATION IN THE formal. It is still developing, and there is still a CANADIAN CONTEXT great deal of debate surrounding the issue. Many Aboriginal people, including Métis people, live off-reserve, in urban centres, or Progress has also occurred in the Canadian away from their communities, and therefore, context, but legal recognition of Aboriginal their attachment to a land base or shared groups as constituting “peoples” has not yet territory may be uncertain. It becomes very occurred, whether through statute law or common challenging to define these people as law. At the same time, while the Government of constituting “peoples” if some sort of land base Canada has recognised an internal right of self- or territorial attachment is a requirement, as determination for Aboriginal peoples, it has not posited in several of the above discussions. In taken a formal stance on Aboriginal peoples as such circumstances, one option might be to look constituting “peoples,” and it has not been to national Aboriginal organisations or home determined which groups constitute “peoples.” communities to speak for one’s interests and to The Supreme Court of Canada has provided some embody the right of self-determination. insight into who constitutes “peoples,” but it has However, this option does not deal with other not yet defined which Aboriginal peoples might issues such as isolation from one’s community, constitute “peoples.” Further, the RCAP Report difficult personal circumstances, loss of culture, has provided additional insight into these issues; it loss of language, or other factors which may recognises the status of Aboriginal peoples as diminish the likelihood of involvement in one’s constituting “peoples” with the right of internal own Aboriginal group. Consequently, even the self-determination. In light of all of these claims, best attempts at defining Aboriginal “peoples” it is argued here that Aboriginal peoples in Canada with a right of self-determination may fall short, do indeed constitute “peoples,” entitled to the ultimately excluding individual members for a right of self-determination within the context of variety of reasons. This serves to demonstrate the Canadian state. the complexity of these issues.

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