UNDRIP IMPLEMENTATION: MORE REFLECTIONS ON THE BRAIDING OF INTERNATIONAL, DOMESTIC AND INDIGENOUS MORE REFLECTIONS ON THE BRAIDINGLAWS OF INTERNATIONAL, UNDRIP IMPLEMENTATION: UNDRIP Implementation More Reflections on the Braiding of International, Domestic and Indigenous Laws SPECIAL REPORT 67 Erb Street West University of Saskatchewan, Room 160, Law Building Waterloo, ON, Canada N2L 6C2 15 Campus Drive, Saskatoon, SK, S7N 5A6 www.cigionline.org www.usask.ca/nativelaw UNDRIP Implementation More Reflections on the Braiding of International, Domestic and Indigenous Laws SPECIAL REPORT CIGI Masthead Executive President Rohinton P. Medhora Deputy Director, International Intellectual Property Law and Innovation Bassem Awad Chief Financial Officer and Director of Operations Shelley Boettger Director of the Global Economy Program Robert Fay Director of the International Law Research Program Oonagh Fitzgerald Director of the Global Security & Politics Program Fen Osler Hampson Director of Human Resources Laura Kacur Deputy Director, International Environmental Law Silvia Maciunas Deputy Director, International Economic Law Hugo Perezcano Díaz Director, Evaluation and Partnerships Erica Shaw Managing Director and General Counsel Aaron Shull Director of Communications and Digital Media Spencer Tripp Publications Publisher Carol Bonnett Senior Publications Editor Jennifer Goyder Publications Editor Susan Bubak Publications Editor Patricia Holmes Publications Editor Nicole Langlois Publications Editor Lynn Schellenberg Graphic Designer Melodie Wakefield For publications enquiries, please contact [email protected]. Communications For media enquiries, please contact [email protected]. @cigionline Copyright © 2018 by the Centre for International Governance Innovation The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Centre for International Governance Innovation or its Board of Directors. Published by the Centre for International Governance Innovation in partnership with Wiyasiwewin Mikiwahp Native Law Centre of the University of Saskatchewan College of Law. Cover image: Healing, Jim Logan This work is licensed under a Creative Commons Attribution — Non-commercial — No Derivatives License. To view this license, visit (www.creativecommons.org/licenses/by-nc-nd/3.0/). For re-use or distribution, please include this copyright notice. Printed in Canada on paper containing 100% post-consumer fibre and certified by the Forest Stewardship Council® and the Sustainable Forestry Initiative. Centre for International Governance Innovation and CIGI are registered trademarks. 67 Erb Street West University of Saskatchewan, Room 160, Law Building Waterloo, ON, Canada N2L 6C2 15 Campus Drive, Saskatoon, SK, S7N 5A6 www.cigionline.org www.usask.ca/nativelaw Contents vii Acronyms and Abbreviations 73 Canary in a Coal Mine: Indigenous Women and Extractive Industries in ix Preface Canada Oonagh E. Fitzgerald and Larry Chartrand Sarah Morales 1 Introduction: Challenging Law 85 UNDRIP Implementation, Intercultural John Borrows Learning and Substantive Engagement with Indigenous Legal Orders Part I: International Law Perspectives Hannah Askew 9 The Necessity of Exploring Inherent Part III: Domestic Law Perspectives Dignity in Indigenous Knowledge Systems 95 UNDRIP and the Move to the Nation-to- James (Sa’ke’j) Youngblood Henderson Nation Relationship Joshua Nichols 17 Using Legislation to Implement the UN Declaration on the Rights of Indigenous 103 Asserted vs. Established Rights and the Peoples Promise of UNDRIP Sheryl Lightfoot Robert Hamilton 25 Implementation of UNDRIP within 111 Articles 27 and 46(2): UNDRIP Signposts Canadian and Indigenous Law: Pointing beyond the Justifiable- Assessing Challenges infringement Morass of Section 35 Gordon Christie Ryan Beaton 33 Bringing a Gendered Lens to 121 Strategizing UNDRIP Implementation: Implementing the UN Declaration on Some Fundamentals the Rights of Indigenous Peoples Kerry Wilkins Brenda L. Gunn 133 Conflicts or Complementarity with Part II: Indigenous Law Perspectives Domestic Systems? UNDRIP, Aboriginal Law and the Future of International 43 Mapping the Meaning of Reconciliation Norms in Canada in Canada: Implications for Métis- Joshua Nichols and Robert Hamilton Canada Memoranda of Understanding on Reconciliation Negotiations 141 Artist Credits Larry Chartrand 143 About the ILRP 53 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water) 143 About CIGI/ À propos du CIGI Aimée Craft 144 About the Wiyasiwewin 63 Rebuilding Relationships and Nations: Mikiwahp Native Law Centre A Mi’kmaw Perspective of the Path to Reconciliation Cheryl Knockwood Acronyms and Abbreviations ABS access and benefit sharing CBD Convention on Biological Diversity CERD Committee on the Elimination of Racial Discrimination DCA duty to consult and accommodate EMRIP Expert Mechanism on the Rights of Indigenous Peoples FPIC free, prior and informed consent GR genetic resources ITK Inuit Tapiriit Kanatami MOU memorandum of understanding NGO non-governmental organization RCAP Royal Commission on Aboriginal Peoples SCC Supreme Court of Canada TK traditional knowledge TRC Truth and Reconciliation Commission UNDRIP/UN United Nations Declaration on the Rights of Indigenous Peoples Declaration vii Preface Oonagh E. Fitzgerald and Larry Chartrand The International Law Research Program (ILRP) of the Centre for International Governance Innovation (CIGI), together with the Wiyasiwewin Mikiwahp Native Law Centre of the University of Saskatchewan College of Law, are pleased to present this collection of short essays discussing how international law, domestic constitutional law and Indigenous peoples’ own laws can work together to bring about full implementation in Canada of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1 This second report on the theme of braiding international, constitutional and Indigenous laws continues and deepens the conversation broached in the 2017 CIGI Special Report entitled UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws.2 Since the Government of Canada’s “embrace” of UNDRIP at the United Nations Permanent Forum of Indigenous Peoples in May 2016,3 much has happened to set the stage for an ambitious implementation agenda. Yet actual progress remains slow and largely illusory. It is fair to recognize the numerous positive steps taken by the federal government. In September 2017, on the occasion of Canada’s 150th anniversary, Prime Minister Justin Trudeau made an impassioned speech to the UN General Assembly in which he acknowledged that Canada’s first peoples had a history that stretched back many millennia before the arrival of Europeans, and that the nation called Canada was best seen as “a work in progress.”4 He referred to Canada’s colonial legacy, the broken promises and the harms that racist policies have inflicted on Inuit, Métis and First 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/ RES/61/295, 46 ILM 1013 (2007). 2 Oonagh Fitzgerald & Risa Schwartz, eds, UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws, CIGI, Special Report, 31 May 2017. 3 Minister of Indigenous and Northern Affairs Carolyn Bennett, “Announcement of Canada’s Support for the United Nations Declaration on the Rights of Indigenous Peoples” (Statement delivered at the 15th session of the United Nations Permanent Forum on Indigenous Issues, 10 May 2016). 4 “Prime Minister Justin Trudeau’s Address to the 72nd Session of the United Nations General Assembly” (21 September 2017), online: <https://pm.gc.ca/eng/news/2017/09/21/prime-minister-justin-trudeaus-address-72th-session-united-nations-general- assembly>. ix UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws Nations peoples, and he renewed promises to use domestic implementation of UNDRIP as “a way forward” to correct past wrongs, support nation-to-nation, government-to-government, and Inuit- Crown relationships, and achieve reconciliation. A working group of federal ministers was struck to review “federal laws, policies, and operational practices to ensure that the Crown is meeting its constitutional obligations, and adhering to international human rights standards—including the United Nations Declaration on the Rights of Indigenous Peoples.”5 The federal Department of Justice articulated 10 “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples,” noting that “The implementation of the United Nations Declaration on the Rights of Indigenous Peoples requires transformative change in the Government’s relationship with Indigenous peoples.”6 The old department of Indigenous and Northern Affairs was dissolved and replaced by two new departments: Crown-Indigenous Relations and Northern Affairs Canada; and Indigenous Services Canada. In February 2018, the prime minister announced that the Government of Canada would develop a Recognition and Implementation of Indigenous Rights Framework, consisting of both legislation and policy. According to the government website this “will ensure that the Government of Canada recognizes, respects and implements Indigenous rights, including inherent and treaty rights, and provides mechanisms to support self-determination. The framework will support Indigenous peoples’ rights as recognized and affirmed in section 35 of the Constitution