Rights, reconciliation and resurgence in Canada

4Canada is a settler colonial State that was founded on the dispossession of Indigenous peoples. It is commonplace to refer to the Royal Proclamation of 1763 as the moment at which the British unilaterally asserted Crown sovereignty over what is now Canada. However, many early treaties predated this, and the Royal Proclamation should be read in light of the 1764 gathering of Indigenous leaders and the exchange of Two Row Wampum belts in accordance with Indigenous diplomatic protocol.6 From the late 1700s through Confederation in 1867, many historic treaties were entered into in which Indigenous nations appear to have surrendered territory, yet the contentious question of how these treaties should be interpreted to account for Indigenous understandings of them is unresolved.7 While early judicial decisions justified Canada’s claim to underlying title to land on the basis of the doctrine of discovery, it is now acknowledged that this was not factually true, nor did the British Crown (or French before them) ever treat North America as terra nullius.8 From the 1970s, modern treaties have been entered into where none existed before, especially in northern Canada, including Quebec and in British Columbia.9 At the time of writing, twenty-nine land claim or self-government agreements cover more than 40% of Canada’s land mass, with further negotiations ongoing.10

5Canada is a federal State, and the British North America Act, 1867 divided powers between the federal government and provinces, of which there are now ten, with three territories. Section 35 of the Constitution Act, 1982 recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada” and defines Aboriginal peoples as including “Indian, Inuit and Métis peoples”.11 The term ‘Indian’ is a historic legacy that continues today through the federal Indian Act, originally passed in 1876, which applies to First Nations.12 It is now commonplace in English to use the term ‘Aboriginal law’ to refer to Canadian law in relation to Aboriginal peoples; while ‘Indigenous law’ refers to the laws of Indigenous peoples themselves, whether First Nations, Inuit, or Métis.13

6Since 1982, numerous judicial decisions have interpreted the meaning of Section 35 Aboriginal and treaty rights, however until recently these interpretations have been guided by sources of colonial law following the doctrine of reception instead of treating Indigenous legal traditions as equivalent.14 From this jurisprudence has emerged a re-affirmation of Crown sovereignty, rather than approaching interpretation through a jurisdictional lens of nation-to-nation relationships.15 The Supreme Court of Canada has interpreted Section 35 to protect a spectrum from Aboriginal rights to fish, gather and hunt, to site-specific rights, to title. Yet to establish a constitutionally protected right, Aboriginal peoples must prove that the activity is an element of a practice, custom, or tradition integral to their distinctive society or culture, and the activity must be a logical evolution from pre-European contact practice. This has been critiqued for freezing Indigenous practices in time and does not accord with the usual ‘living tree’ approach to Canadian constitutional interpretation.16

7Supreme Court of Canada jurisprudence also imposes inherent limits on Aboriginal rights and title that limit both the use by the claimants and – at least in theory – the extent to which the Crown can infringe rights or title.17 For example, Aboriginal title is sui generis as a collective title held for present and future generations; as such it cannot be encumbered to prevent the use and enjoyment of future generations, nor can development of the land deprive future generations of its benefits, although it can be alienated to the Crown.18 Aboriginal rights and title and treaty rights can also be infringed by the Crown, whether federal or provincial, however the Crown has a fiduciary duty to consult and accommodate Aboriginal peoples, and must justify infringements with objectives that are compelling and substantial.19 The honour of the Crown thus also serves as an inherent limit.20 According to Indigenous Anishnabe scholar John Borrows, while this jurisprudence may be read as paternalistic, it may alternately be read ecologically as supporting the resurgence of Indigenous laws that limit land uses by measuring impacts on seven generations.21 A separate concern is whether Canadian judicial interpretations of rights and justifications accord with UNDRIP and free, prior and informed consent.22

8There is not a single source of pan-Indigenous law in Canada; rather, the legal traditions of each distinct Indigenous nation are the sources of these laws which may reflect sacred law, natural law, deliberative law, customary law, or even positivistic law.23 Indigenous laws are not stuck in the past, but rather are “living systems of social order”.24 Indigenous laws have been recognized in modern treaties, such as the 2005 Labrador Inuit Land Claims Agreement which identifies Inuit law as an important source of regional authority, while the Labrador Inuit Constitution proclaims customary law of the Labrador Inuit as the underlying law of the Nunatsiavut Assembly.25 Indigenous laws are increasingly being recognized in Canadian judicial decisions and applied by Indigenous dispute resolution bodies.26

9However, the resurgence of Indigenous law must be understood in light of Canada’s colonial history and government-led or -supported attempts to erase Indigenous knowledges, languages and cultures through residential schools that operated for over a century and have been described as perpetuating cultural genocide.27 The abuse of individual students, whether physical, psychological or sexual, combined with prohibitions on speaking Indigenous languages and sharing cultural knowledge, has left a legacy of intergenerational trauma. This is documented in the 2015 final report of the Truth and Reconciliation Commission (TRC)28 which is accompanied by ninety-four Calls to Action29 that provide a roadmap towards reconciliation as mutually respectful relationships between Indigenous and non-Indigenous peoples. Among the TRC Calls to Action are those directed at law schools and the legal profession, seeking intercultural competency training that addresses the history of residential schools and their legacy, Aboriginal rights, treaties, and Indigenous law, and UNDRIP.30 Another Call to Action seeks funding to establish Indigenous law institutes in keeping with UNDRIP, “for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada”.31 All governments (federal, provincial, territorial and municipal) are asked to “fully adopt and implement” UNDRIP “as the framework for reconciliation”.32 The corporate sector is also asked to adopt UNDRIP as a reconciliation framework and to apply it especially when engaged in activities involving the lands and resources of Indigenous peoples.33

10Importantly, TRC Call to Action 41 asked the federal government to appoint a public inquiry with a mandate to investigate the history of victimization of Indigenous women and girls.34 The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls was released in 2019 and documents the intersectional causes behind the horrific rates of violence against Indigenous women, girls and gender diverse persons in Canada.35 As explored by Mi’kmaw scholar Sherry Pictou, patriarchal practices introduced by the Indian Act have led to the disenfranchisement and gross underrepresentation of Indigenous women in governance, including with regard to decision-making over natural resource development.36 Yet resource extraction is also associated with much higher rates of violence against Indigenous women and girls.37 Overcoming this history will only be possible by foregrounding Indigenous women and two-spirit persons as active knowledge holders of land and water-based practices, combined with attention to the need to consult the broader Indigenous population rather than just the ‘official’ leadership.38 Pictou concludes that it is essential to adopt a human rights-based approach that recognizes that “without Indigenous gender justice, there is no Indigenous self-determination”.39

11Canada initially voted against UNDRIP in 2007, yet by 2010 the Conservative government issued a weak endorsement of it as an aspirational “non-legally binding document that does not reflect customary international law nor change Canadian laws” all the while maintaining UN objector status.40 Following much internal criticism, the release of the TRC Calls to Action, and the election of the Liberal party, the federal government dropped Canada’s objector status and announced it would implement UNDRIP.41 In June 2021, federal legislation designed to implement UNDRIP came into force with the purpose of affirming UNDRIP “as a universal human rights instrument with application in Canadian law” and providing a framework for implementation in cooperation with Canadian Indigenous peoples so as to ensure consistency between UNDRIP and Canadian laws.42 Whether or not UNDRIP should be understood to be part of Canadian law as a reflection of customary international law or existing human rights treaty obligations even without legislative implementation remains a subject of debate, although the answer should certainly be informed by Indigenous understandings of its weight, especially given the decades of international diplomacy by Indigenous leaders based in Canada.43 Of concern, is the possibility that a different political party could govern after the next federal election and repeal this legislation as has happened in the past with environmental and navigable waters legislation valued by Indigenous peoples.44 Irrespective of UNDRIP implementing legislation, Indigenous and non-Indigenous scholars have given extensive thought to the implications of UNDRIP and the TRC Calls to Action for Canadian law and settler-Indigenous relations, including, as will be explored below, with respect to the environmental concerns.

Indigenous laws, earth teachings and international law

12The TRC’s final report indicated that a repeatedly shared Indigenous perspective was that reconciliation between Indigenous and non-Indigenous Canadians will remain incomplete unless there is also reconciliation with the earth: “Mi’kmaq and other Indigenous laws stress that humans must journey through life in conversation and negotiation with all creation. Reciprocity and mutual respect help sustain our survival.”45 Consequently, it is not surprising that the TRC Calls to Action highlighted the importance of education of legal professionals and law students for reconciliation, including education in relation to Indigenous laws. For non-Indigenous Canadians like myself, it is therefore not enough to acknowledge treaty relationships as stated in the land acknowledgement of my university: “Dalhousie University is located in Mi’kma’ki, the ancestral and unceded territory of the Mi’kmaq. We are all Treaty people.” True reconciliation requires settlers to “support the resurgence of Indigenous life-ways, and foster ongoing public education, dialogue and practices of reconciliation”.46 According to settler environmental lawyer Hannah Askew, implementation of UNDRIP imposes a duty to learn Indigenous laws.47

13While much work remains to be done to revitalize Indigenous laws and legal institutions following the destruction caused by colonial practices, much work has already been done by Indigenous scholars and allies to document sources of Indigenous laws such as stories and oral traditions, and to develop land-based trainings for non-Indigenous peoples, including lawyers.48 Nevertheless, as John Borrows reminds readers, it is important not to perpetuate the damaging stereotype that all Indigenous peoples are necessarily “natural environmentalists”: “Indigenous peoples can be as destructive as other societies on earth – we are part of humanity, not outside of it. Caring for the earth is hard work; it does not always come naturally. Humans must consume to survive.”49 Moreover, as environmental degradation by Indigenous peoples is impacted by structural forces, it is “not enough to be Indigenous and inherit an ethic of care. These teachings must be acted upon by each generation”.50 Accordingly, the resurgence and teaching of Indigenous law is important for both Indigenous and non-Indigenous peoples.

14Anishnabe scholar Deborah McGregor reminds readers that as each Indigenous nation draws upon its own legal traditions, a definitive Indigenous environmental justice framework is not possible.51 Despite this, Indigenous-led declarations such as the outcome document of the Rio+20 International Conference on Indigenous Peoples and Self-Determination and Sustainable Development call upon the global community to “return to dialogue and harmony with Mother Earth, and to adopt a new paradigm for civilization based on Buen-Vivir – Living Well”.52 The buen vivir call is for living well within a community that goes beyond people to include animals, plants, and nature, or the earth itself. For McGregor, this is equivalent to the Anishnabek understanding of all of Creation.53 She points to the problem that international sustainable development instruments are not based on the legal traditions of Indigenous peoples, and so Indigenous peoples must work hard to improve them, including instruments like the Sustainable Development Goals.54 This requires first overcoming procedural injustices at international forums that do not fully include Indigenous peoples. UNDRIP in this sense is a distinct international instrument as its development over many decades was led by Indigenous peoples and informed by Indigenous legal traditions.55

15McGregor suggests that realizing the rights of Indigenous peoples necessitates “international actors to fully implement UNDRIP and other Indigenous declarations in support of Indigenous aspirations, rather than simply inserting and subsuming Indigenous peoples in dominant frameworks”.56 She suggests that UNDRIP and related human rights instruments create opportunities to decolonize nation States and global actors, and so to address injustice through reform of dominant legal orders.57 Beyond this, Indigenous legal orders offer perspectives on justice that contemplate the relationship between humanity and the “more-than-human world”.58 Indigenous environmental justice therefore goes beyond traditional environmental justice’s focus on people, to encompass reciprocal responsibilities among all beings.59 The sources of Anishnabek law, for example, are land or water-based, from the natural world, and arise from experiences of observing and living. They are recounted as stories that often point to the destructive nature of humans, their need for guidance from the natural world, and relational accountability.60

16The call for non-Indigenous peoples to learn Indigenous law is echoed in a contribution written by a collective of Mi’kmaw and allied authors in Mi’kma’ki, unceded territory that is subject to the 18th-century Peace and Friendship Treaties.61 The published text emerged following a series of public lectures, workshops and ceremonies including songs, stories and talking circles. After these relational engagements, Mi’kmaw Elder Albert Marshall shared the belief that a process of ‘re-Indigenization’ was essential for biodiversity conservation to be successful.62 As the Mi’kmaw and allied authors emphasize, conservation is not solely the responsibility of Indigenous peoples, yet re-Indigenization through the foregrounding of principles derived from Indigenous ways of knowing offers transformative potential for Indigenous resurgence and resilience and the wellbeing of all relations.63 Seven principles were proposed, derived primarily from Mi’kma’ki: to embrace Indigenous ecological worldviews that centre all relations; to learn the language of the land; to respect the supremacy of natural laws; to work together in respectful and just relationships as treaty people; to reflect deeply on the truth of the past and future transformation; to value Indigenous ways of knowing through “two-eyed seeing”; and to engage in story-telling and story-listening to deepen knowledge and relationships.64 The authors, who credit M’sɨt No’kmaq (all our relations) as the lead co-author, conclude that it is essential for settlers to take responsibility and honour Indigenous ways, so as to restore reciprocal relations between land and people, at the same time supporting Indigenous resurgence:65

Imperative to the pivotal times that we are living through is the recognition that re-Indigenization holds value for all people, has great potential for reckoning with past and present wrongdoings, and provides pathways towards building meaningful reconciliation and reestablishment of reciprocal relationships with “all our relations”, M’sɨt No’kmaq.66

17Re-Indigenization accords with the evolution of international biodiversity conservation law which, after a very troubling history replete with Indigenous rights violations including in Canada, now recognizes the necessity of respecting Indigenous rights and governance.67 In the Canadian context, the Indigenous Circle of Experts produced a 2018 report on Indigenous Protected and Conserved Areas (IPCAs) as a tool for compliance with the Aichi targets of the Convention on Biological Diversity.68 The report defines IPCAs as “… lands and waters where Indigenous governments have the primary role in protecting and conserving ecosystems through Indigenous laws, governance, and knowledge systems. Culture and language are at the heart and soul of an IPCA”.69 Importantly, the need for collaboration in the creation of an IPCA through “ethical space” is also identified: “a place for knowledge systems to interact with mutual respect, kindness, generosity, and other basic values and principles”.70 The Edéhzhíe National Wildlife Area and Dehcho Protected Area provides an early example of a collaborative process whereby the Dehcho First Nation first established a protected area under Indigenous law in 2018, which was then designated as a National Wildlife Area under federal law in 2022.71 This and other examples of Indigenous-led conservation initiatives supported by federal funding through the Indigenous Guardians initiative and Target 1 Challenge are designed to meet international conservation targets, and could also contribute to reconciliation and resurgence if appropriately respected by colonial governments through recognition under federal or provincial laws.72

18The explicit acknowledgement in the 2022 Kunming-Montreal Global Biodiversity Framework that the rights, values and knowledge of Indigenous peoples must be respected, and that Indigenous peoples play an important role as custodians and partners in biodiversity conservation as well as restoration and sustainable use, also suggests an evolution in international environmental law in keeping with reconciliation and resurgence.73 However, this is not a straightforward process, as evidenced in the contested legal implications of the shift from the terminology of “Indigenous and local communities” to “Indigenous peoples and local communities” in CBD decisions since 2014, a change first proposed by the United Nations Permanent Forum on Indigenous Peoples in 2010.74 Concerns have also been raised about how to align Canadian Aboriginal law with UNDRIP implementation and access, and benefit sharing obligations under the Nagoya Protocol, should Canada ever decide to become a party.75

19The idea that non-Indigenous peoples must learn to respect Indigenous jurisdiction and laws is also emerging in practice at the intersection of biodiversity and climate change law in relation to nature-based solutions (NbS).76 A recent study of Canadian climate policy on NbS by a group of scholars including Deborah McGregor concluded that implementation practices could either support or undermine sustainable Indigenous self-determination. While Indigenous knowledges systems were increasingly recognized in federal climate policy, there was limited application of an ethical space framework that would support equal treatment of diverse knowledge.77 Indigenous jurisdiction over land received very little recognition in climate policy, even as frequent reference was made to federal and provincial jurisdiction. The authors found this ironic given federal support for IPCAs including the “Equator prize-winning Thaidene Nëné Park in the Northwest Territories”.78 While climate policies made some reference to engagement with Indigenous peoples, there was a lack of endorsement of shared decision-making, although there were some references to partnership and Indigenous climate leadership in the most recent policies, including co-development of solutions.79 Finally, while the rights of Indigenous peoples were recognized to some extent in all Canadian climate policy documents, these rights were not respected in the design and implementation of the climate plans; indeed, one report documented their systematic exclusion from decision-making processes of federal climate plans.80 However, the 2020 plan does acknowledge the importance of supporting self-determination in climate action to advance reconciliation and includes a section on partnership with Indigenous peoples.81

20Overall, the authors of the study raised concern that the unwillingness to recognize Indigenous jurisdiction over land perpetuated a view of climate policy as concerned with technical and managerial activities focused on greenhouse gas emissions reductions. This avoided a deep decarbonization approach that would have emerged were attention paid to “Indigenous sustainable self-determination, grounded in an Indigenous understanding of land as a system of reciprocal relations and obligations”.82 Given Canada’s continued oil and gas development, and the urgency of the climate crisis, the authors conclude that both within Canada and internationally, climate policy on NbS should be reframed to ensure that Indigenous-led solutions are supported so as not to “lose sight of the crisis they are attempting to solve”.83

21The work of the First Nations – Canada Joint Committee on Climate Action, established in 2017, provides an example of collaboration over climate policy and self-determination, which has over time taken seriously the need to develop ethical space and guiding principles that ultimately seek a paradigm shift towards Indigenous climate leadership.84 Evidence of Indigenous leadership in climate policy and action is widespread, including the ground-breaking although unsuccessful 2005 Inuit climate petition to the Inter-American Commission on Human Rights.85 There are also many examples of Indigenous resistance to the exercise of Canadian power in support of fossil fuel infrastructure while failing to respect Indigenous self-determination and reciprocal responsibilities to land and water, led especially but not only by Indigenous women.86 Some of these examples are complicated by the continuity of colonial governance practices that disregard the responsibilities of hereditary chiefs. It is also necessary to recognize that there are supporters of further fossil fuel development and pipelines among Indigenous communities as pathways to economic development, and Indigenous resistance to renewable energy projects and mining of critical minerals that fail to respect Indigenous rights and reciprocal responsibilities.87 Together, these point to the challenges but also imperative of Indigenous reconciliation and resurgence at a time of biodiversity and climate emergency.

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22On June 3, 2022, Indigenous peoples presented a Declaration after listening to contributions commemorating the 1972 Stockholm Conference on the Human Environment and 50 years of global action on environmental issues.88 The Stockholm+50 Indigenous Peoples Declaration calls on States and other international actors to treat Indigenous peoples as full partners in biodiversity and climate decision-making, to mainstream Indigenous knowledge as equal in relevant decision-making, and to respect the collective rights of Indigenous peoples to “land, territory, natural resources and effective conservation outcomes”.89 The Declaration also demands that the “murder of Indigenous peoples and environment defenders” must immediately stop: “too many of those of us who dare to fight for these rights and for the conservation of the natural resources on land and sea suffer increasing intimidation, harassment, stigmatization and criminalization”.90 The Declaration as a first step asks States and other international actors to recognize “the existence of Indigenous Peoples within their borders” and implement UNDRIP in national legislation “with respect to their collective rights to lands, territories and natural resources”.91 While there is much work still to be done in the Canadian context, it can at least be said that at long last the first few steps have been taken. Yet there are still too many Indigenous peoples, and especially women, in Canadian jails.92

23The colonial legacy of international law and its civilizing mission must not be ignored, even as it is challenging to overcome.93 The Canadian example illustrates that despite these challenges, State commitment to implementation of UNDRIP, combined with serious self-reflection through processes like the TRC, can create momentum for both reconciliation and the resurgence of Indigenous ecological laws. State action alone or even combined with that of Indigenous peoples is not enough, however. A commitment to reconciliation and resurgence must also be made by non-Indigenous settlers, as well as educational institutions, law societies, and businesses.

24Several lessons emerge from this experience for international environmental law. First, the commitment to reconciliation and resurgence can and should be made equally in the context of international law as in domestic law. This is not obvious, especially for international lawyers who do not live in settler colonial States and may see the issues confronting Indigenous peoples as far removed from their daily experience. However, the existence of settler colonial States like Canada highlights that the State-based system of international law is fundamentally flawed.94 Everyone who claims to practice and teach international law has an obligation to face up to this reality and its implications for moving towards more inclusive processes of international law-making, and more inclusive interpretations of international legal norms. For international environmental lawyers, the benefits of revitalizing Indigenous ecological laws and institutions through international law should be easy to see, especially given the increasingly serious attention being paid to rights of nature. As illustrated above, a ‘bottom-up’ understanding of the formation and implementation of international law creates space for Indigenous legal orders to enact reciprocal human-nature responsibilities in the form of IPCAs which can then be recognized by settler legal systems through nation-to-nation relationships. A blanket commitment to the revitalization and recognition of Indigenous ecological laws in both biodiversity and climate law contexts would also overcome the challenge created by the failure of some UNDRIP-supporting States to recognize self-identifying Indigenous peoples within their borders.

25Second, as evidenced in the writings of Indigenous feminist scholars, human rights-based approaches, understood as including both collective and individual rights, have an important role to play in reconciliation and resurgence, despite critiques of UNDRIP and international human rights law.95 As Sherry Pictou reminds readers, Indigenous gender justice and Indigenous self-determination must go hand in hand.96 Recent evolutions at the intersection of international human rights and environmental law, including the 2022 recognition by the UN General Assembly (UNGA) of the right to a clean, healthy and sustainable environment, arguably support the resurgence of Indigenous ecological laws and gender justice.97 Recognition of this right may provide greater legitimacy to both Indigenous and non-Indigenous allies seeking to exercise procedural and substantive environmental human rights as human rights defenders in support of Indigenous ecological laws. Further, the UNGA resolution “recalls” business’ responsibility to respect human rights under the 2011 United Nations Guiding Principles on Business and Human Rights,98 providing additional support for such responsibilities in relation to Indigenous rights and gender justice.

26Ultimately, despite the illegitimacy of the origins of the Canadian State and ongoing challenges, emerging practices as shaped by insights from Indigenous scholars illustrate how Canada could “lead the way toward a post-Westphalian model of the state”.99 However, much work remains to be done. To contribute effective solutions to climate and biodiversity crises, international environmental law also needs to embrace overlapping sovereignties and support a plurality of legal orders working together in ecological harmony.