Remedies for violations of Indigenous peoples’ human rights

Abstract

Current Canadian law on remedies for violations of Indigenous peoples’ rights is quite limited. It is limited in part because, under Canadian law, the protection of Indigenous rights is limited. The ability of governments to justifiably limit these rights means that, even if a claimant successfully proves an interference with a right, it often seems as though the courts defer to the government’s arguments on the need to limit the right, undermining the goal of constitutionally entrenching these rights. In contrast to domestic jurisprudence, international human rights bodies have ordered fairly robust remedies that both vindicate rights and are meant to deter government from engaging in activities that further violate Indigenous peoples’ rights. As expressed here, the challenge of gaining effective remedies in Canada is intimately linked to the challenge of poor rights recognition in Canada. This article begins with a brief discussion of why Indigenous peoples have turned to international human rights law for recognition and protection of their rights to further highlight the need to bring these international standards into Canadian domestic law. Next, the article briefly considers some of the rights that are generally protected in international human rights law, including how the understanding of these rights has evolved over time to demonstrate the similarity with the issues that are raised domestically in Canada to support the argument that Canadian courts should be guided by international reparation orders for violations of Indigenous peoples’ rights. The article then overviews some of the remedies ordered from various international human rights bodies for violations of Indigenous peoples’ rights and the function these orders play in the protection of Indigenous peoples’ rights. The article concludes with some recommendations for Canadian courts on how remedies could be ordered to better protect Indigenous peoples’ rights and deter government action that violates these rights.