GLOSSERY & TERMS OF DEFINITION
Our inherent rights are those rights bestowed upon us by the Creator, who deliberately placed our Peoples and Nations on this part of Turtle Island and conferred upon us a never-ending responsibility to the lands, waters, and resources. Inherent rights derived from our responsibility to the land include:
Economic rights, such as the right to resource development, trade and commerce, and to engage freely in traditional and other economic activities.
Political rights, such as the right to self-determination, leadership selection, the right to enter relations with other nations, the right to develop our own political institutions, and the right to exercise laws given to First Peoples by the Creator.
Cultural rights, such as the right to practice ceremony, speak our languages, and pass down our creation stories without discrimination.
Social rights, such as the right to our own education, child welfare, and healthcare systems, as well as an adequate standard of living.
Our inherent rights are protected by international law, including the United Nations Declaration on the Rights of Indigenous Peoples, the Charter of the United Nations, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights.
INTERNATIONAL TREATY RELATIONS
Included in our inherent rights as First Peoples and Nations, is the right to enter international treaty relations. Prior to contact, relationships between our nations were established and maintained through agreements (e.g. Great Law of Peace, Dish with One Spoons, etc.). Pre-Confederation Treaties signed with the British Crown and the Numbered Treaties signed with Canada all have international legal standing as agreements made between sovereign nations.
The Vienna Convention on the Law of Treaties (1969), of which Canada is a signatory, outlines the customary law of treaties which is binding on all nations. Included in this convention are the following rules and regulations:
A nation cannot make changes to treaties without the consent of all those who signed the treaties.
If a nation does not follow the agreement, it means that the treaty was ‘breached’.
If a nation is found to have breached a treaty, the other nation has the right to be compensated.
First Nations maintain their ability to engage in treaty-making. The UN, in a special study, found that Indigenous peoples have not given up on their ability to make treaty and that states (Canada), must provide proof that First Nations have willfully given up their sovereignty before this right is lost. Canada has not at any point been able to provide this proof.
Each treaty contains obligations and responsibilities that each nation must follow. At contact, peace and friendship treaties established relationships that facilitated trade and military alliances between First Nations and colonial powers. For instance, the Treaty of Niagara 1764 explicitly stated that First Peoples and Nations have title to their land (they owned all of what is now Canada) and forbade anyone but the British Crown to buy land from First Nations.
The Numbered Treaties, for the most part, were land sharing agreements whereby settlers were allowed to use First Nations’ traditional territory in exchange for goods, healthcare, schools, and whatever else was included in each particular treaty. These are called treaty obligations, and if a nation does not follow the treaty, it is considered a ‘breach of treaty’. As per the Vienna Convention on the Law of Treaties, a nation negatively affected by a breach of treaty is entitled to mediation by a third party and compensation for the breach.
Treaty rights amount to the obligations found within the treaty as well as the right of First Nations to use and benefit from their traditional territory. Because we maintain a right to our land, free, prior, and informed consent must be obtained before any project that affects our lands, territories, and resources is permitted to go ahead.
Section 35 Rights
Section 35 rights refer to those rights derived from section 35 of the Canadian Constitution where Canada attempts to define its relationship with Indigenous Peoples. It is important to note that section 35 recognized Aboriginal rights but did not create them – our rights are inherent and have existed since time immemorial.
Section 35 recognized and affirmed “existing Aboriginal and treaty rights” but does not go further to explain what they are. What Aboriginal rights include has been a topic of much debate and discussion, and has been defined over time through Supreme Court cases such as R. v. Calder and R. v. Sparrow. Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties.
There are many problems giving too much weight to section 35 rights. The Supreme Court of Canada has ruled that any Aboriginal rights that had been extinguished by treaty or other legal processes prior to 1982 no longer exist. Further, the Supreme Court has set up a system whereby Aboriginal Rights can be infringed upon (overridden) when Canada sees fit. Section 35 also reinforces colonialism by recognizing Canadian law as supreme, instead of breaking away from it as would be expected under a true nation-to-nation relationship.
Self-determination is a principle of modern international law that is binding on all states who are subject to the Charter of the United Nations. It states that a people, based on the respect for the principles of equal rights and equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.
The right for people to choose their own sovereignty includes the right to:
Choose their own state and its territorial boundaries.
Their own political institutions, including executive, judiciary, legislature, or other forms of government entirely.
Their own economic, social, and cultural institutions.
Engage in relations with other states.
The right to self-determination of First Nations is protected by international law, including the Charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, and the United Nations Declaration on the Rights of Indigenous Peoples.
Consent is an integral part of the historical treaty process and is necessary for a true nation-to-nation relationship. The process of treaty-making required that First Peoples and Nations and the Crown mutually bestow upon each other the status of sovereign entities, and First Nations have not at any point willfully renounced their sovereign status.
The right to free, prior, and informed consent (FPIC) is recognized by the United Nations Declaration on the Rights of Indigenous People and the American Declaration on the Rights of Indigenous People, both of which Canada has signed. They both asserted that states were required to obtain FPIC before laws or policies that may affect Indigenous peoples are adopted. Further, FPIC is also needed before states can approve any projects affecting the lands, territories, and other resources of Indigenous peoples.
Canada’s consultation and engagement processes are not consent. They are one-sided power games where First Peoples and Nations can never win, as national interest and jurisdictional superiority are used to override First Peoples and Nations’ sovereignty. First Nations cannot exercise their right to self-determination under these circumstances. Although Canada’s 10 Principles document refers to consent, they specifically used words to undermine the spirit and intent of FPIC, making it functionally the same as consultation.