Protecting Aboriginal Rights and Title in Canada: A Growing Space for the United Nations Declaration on the Rights of Indigenous Peoples

Fumiya Nagai

doi:10.1590/1809-43412021v18a703

Abstract

Abstract In 2014, the Supreme Court of Canada issued a landmark decision in Tsilhqot'in Nation v. British Columbia. In this decision, the Supreme Court recognised Aboriginal title to a specific territory for the first time, along with Aboriginal rights to hunt, trap, and engage in other practices. While international human rights law relating to Indigenous peoples, notably the United Nations Declaration on the Rights of Indigenous Peoples, was not directly relied upon in this decision, the subsequent negotiations and outcome documents have gradually included the UN Declaration into the discussion, in conjunction with the political and legal shift towards recognition and acceptance of it in Canada. By exploring the political and legal struggles of the Tsilhqot'in, particularly after the 2014 decision, this paper considers a growing space for the UN Declaration in defining the declared Aboriginal rights and title.

Highlights

In 2014, the Supreme Court of Canada (SCC) issued a landmark decision in Tsilhqot’in Nation v
While international human rights law relating to Indigenous peoples, notably the United Nations Declaration on the Rights of Indigenous Peoples, was not directly relied upon in this decision, the subsequent negotiations and outcome documents have gradually included the UN Declaration into the discussion, in conjunction with the political and legal shift towards recognition and acceptance of it in Canada
By exploring the political and legal struggles of the Tsilhqot’in, after the 2014 decision, this paper considers a growing space for the UN Declaration in defining the declared Aboriginal rights and title

Summary

Introduction

In 2014, the Supreme Court of Canada (SCC) issued a landmark decision in Tsilhqot’in Nation v. According to Slattery, this right can be regarded as “a generative right,” which “exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown” (Slattery, 2006: 262) Concerning their Aboriginal title, the Tsilhqot’in have engaged in negotiations with the federal and provincial governments, aiming to define their rights and resulting in several documents that have agreed to develop nation-to-nation relationships towards a lasting reconciliation. On the federal level, Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, passed the legislative body and came into force in June 2021 This Act aims to affirm the UNDRIP “as an international human rights instrument that can help interpret and apply Canadian law” and to provide a framework to advance the implementation of the UNDRIP, seeing it “as a key step in renewing the Government of Canada’s relationship with Indigenous peoples.”. “Letter of Intent between Her Majesty The Queen in right of the Province of British Columbia and The Tsilhqot’in Nation,” September 2015, https:// www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/agreements/tng_letterofintent_2015sept24_02.pdf

24 The specific areas include

Conclusion