by Rosemary Brown
In Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), editors Borrows, Chartrand, Fitzgerald, and Schwartz bring together a fascinating and informative range of essays by legal scholars and policy analysts.
Their purpose, as explained in part one of the introduction, is to examine the relationship of UNDRIP to Canadian Constitutional Law, specifically section 35 on Aboriginal Rights, Indigenous laws, and other international laws or legal instruments. Their goal is to “bring International and domestic law in line with Indigenous laws.” They believe that doing so will result in true Nation to Nation relationships and enhance the process of Reconciliation, and through this will come to “reconceive the very idea of laws and how they are created.”
It is impossible to recount all of the themes covered in this volume, but I will discuss a few that stood out for me.
There were two that addressed gender: they discussed the negative impact colonization had on traditional gender roles and the status of Indigenous women. Often disregarded has been the fact that Indigenous women possessed different knowledge of the land and its plant and animal resources than men. Resource extraction also impacts Indigenous women differently. It is argued that a gendered lens needs to be applied to domestic laws and that UNDRIP would need to be used in conjunction with other international human rights instruments in order to fully protect the rights of Indigenous women.
There were also essays exploring Indigenous legal traditions as these relate to the land and water. Based on centuries of observation and experience they speak to the responsibility of Indigenous people to each other and to the natural world around them. These include discussions of Anishinaabe and Mi’kmaq beliefs and how they have informed actions to protect the land.
Several chapters discuss the “duty to consult”:
“The Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. The duty stems from the Honour of the Crown and is derived from section 35 of Canada’s Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights”.
Many Canadians think that this “duty to consult” protects the rights of Indigenous peoples, their lands, and resources. However, Canadian courts have offered a restrictive interpretation of the duty to consult, based on the Doctrine of Discovery whereby ultimate sovereignty over Crown land (almost 89% of Canada’s land base, with 11% being privately owned and another 0.36% making up First Nations reserves) rests with the Crown. This is the land on which the Federal and provincial governments issue permits for resource extraction, heedless of the fact that these are the ancestral lands of Indigenous Nations which they have a sacred responsibility to protect.
In these essays it is argued that until Indigenous nations have the right to veto proposed resource development projects, we will not have Nation to Nation relationships, nor true Reconciliation.
Authors in Braiding Legal Orders argue that Articles 26, 27, and 28 of UNDRIP guaranteeing Indigenous rights to their ancestral lands could be used in the courts to correct this power imbalance.
For all of those interested in the subject of Indigenous rights, especially when it comes to land and resources, I highly recommend this book.
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