scholarly journals The Van der Peet Test: Constitutional Recognition or Constitutional Restriction?

2012 ◽  
Vol 3 (2) ◽  
pp. 20-36
Author(s):  
Alexandra Kent
Keyword(s):  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Self Determination ◽  
Power Dynamics ◽  
Colonial Power ◽  
Constitutional Order ◽  
Indigenous Nations ◽  
Asymmetrical Power ◽  
Constitutional Right

This article uses the case of R. v. Van der Peet to critically analyze the role of language in Section 35(1) of the Canadian Constitution in perpetuating asymmetrical power dynamics within the framework of colonialism. In defining which practices are protected in the form of Indigenous rights under Section 35(1), the courts have imposed a two-stage test called the Integral to a Distinctive Culture Test or Van der Peet Test. This test stipulates three criteria; the practice must: originate from "pre-contact", be "distinctive", and conform or "reconcile" with state sovereignty. This article demonstrates how these criteria hinder the development of Indigenous rights, restrict the scope of such rights, and marginalize Indigenous peoples in Canadian society. Analyzing the role of the deliberative wording of this constitutional order reveals a foundation for contemporary colonialism and oppression, whereby colonial power relations are facilitated and secured by antiquated, ethnocentric ideals upheld by the Judiciary. Exposing the illegitimacy embedded within the State's uninhibited, exclusive sovereignty directs this discussion to the suggestion that the State lacks the authority to grant Indigenous rights. This article concludes with the argument that, as the original inhabitants of this land, Indigenous Nations possess the inherent extra-constitutional right to self-determination that can only be achieved through self-affirmation.

scholarly journals Section 35 of the Canadian Constitution Act and Indigenous Self-Determination in Canada

2021 ◽  
Vol 6 (1) ◽  
pp. 14-21
Author(s):  
Hailey Lothamer
Keyword(s):  
Indigenous People ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Self Determination ◽  
Court Cases ◽  
Treaty Rights ◽  
Canadian Government ◽  
Academic Literature ◽  
Personal Accounts

This research paper analyzes the impacts of Section 35 of the Canadian Constitution on the enhancement of Indigenous rights in Canadian politics. As outlined in Section 35, Indigenous rights are recognized as pre-existing prior to the Constitution Act of 1982 and the identity of Aboriginal, Inuit and Métis peoples are defined. Academic literature, television broadcasts, and personal accounts of the implementation and effects of Section 35 were used to conduct this research and investigate the origins of this section in the Constitution. Notably, this analysis demonstrated that the inclusion of Section 35 in the Constitution has led to more public discussion and court cases to claim treaty rights by Indigenous peoples. The effect of including Indigenous rights in the Canadian Constitution has expanded the role of the courts in adjudicating relations between the Canadian government and Indigenous people, effectively expanding the accountability of the Canadian government to upholding treaty rights. Overall, the findings of this paper were that Section 35 plays a large role in promoting awareness of reconciliation to the Canadian public, however, it stops short of including Indigenous people as meaningful participants in their own self-determination.  

Re-presenting Genocide: The Canadian Museum of Human Rights and Settler Colonial Power

2016 ◽  
Vol 1 (1) ◽  
pp. 5-30 ◽  
Author(s):  
Rita Kaur Dhamoon
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Settler Colonialism ◽  
Colonial Power ◽  
National Narratives ◽  
Political Debates ◽  
The Holocaust ◽  
Settler Societies ◽  
Forced Movement

AbstractIn settler societies like Canada, United States, and Australia, the bourgeoning discourse that frames colonial violence against Indigenous people as genocide has been controversial, specifically because there is much debate about the meaning and applicability of genocide. Through an analysis of the Canadian Museum for Human Rights, this paper analyzes what is revealed about settler colonialism in the nexus of difficult knowledge, curatorial decisions, and political debates about the label of genocide. I specifically examine competing definitions of genocide, the primacy of the Holocaust, the regulatory role of the settler state, and the limits of a human rights framework. My argument is that genocide debates related to Indigenous experiences operationalize a range of governing techniques that extend settler colonialism, even as Indigenous peoples confront existing hegemonies. These techniques include: interpretative denial; promoting an Oppression Olympics and a politics of distancing; regulating difference through state-based recognition and interference; and depoliticizing claims that overshadow continuing practices of assimilation, extermination, criminalization, containment, and forced movement of Indigenous peoples. By pinpointing these techniques, this paper seeks to build on Indigenous critiques of colonialism, challenge settler national narratives of peaceful and lawful origins, and foster ways to build more just relations between Indigenous and non-Indigenous peoples.

James Clifford’s ‘Indigenous Articulations’ as Travelling Theory? The Search for Sustainability in Theorising Taiwan’s Indigenous and Han Populations

2019 ◽  
Vol 2 (1) ◽  
pp. 32-56
Author(s):  
Jess Marinaccio
Keyword(s):  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Self Determination ◽  
Indigenous Populations ◽  
Pacific Region ◽  
The Pacific ◽  
Literature Culture ◽  
Original Audience

In 2000, the noted scholar James Clifford delivered an address entitled ‘Indigenous Articulations’ in which he challenged dichotomies of authenticity/inauthenticity that plague theories of indigeneity in the Pacific region. Today, ‘Indigenous Articulations’ has travelled far beyond its original audience, and some Taiwanese scholars who analyse the literature/culture of Taiwan’s indigenous peoples have adopted this work. Yet, in contrast to Clifford, these scholars have used ‘Indigenous Articulations’ to simultaneously explain indigenous and Han Taiwanese populations, positing Han-indigenous creolisation as preferable to indigenous self-determination. In this paper, I adopt travelling theory to examine ‘Indigenous Articulations’ and its movement to Taiwan studies. I then consider the works of Kuei-fen Chiu and Hueichu Chu to show how they use ‘Indigenous Articulations’ to support a creolised existence for Han and indigenous populations on Taiwan. Finally, I explore tensions between theoretical and ethical sustainability in Taiwan studies and possibilities for recognising indigenous rights in this field.

Indigenous Self-determination through a Government Agency? The Impossible Task of the Swedish Sámediggi

2016 ◽  
Vol 23 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Rebecca Lawrence ◽  
Ulf Mörkenstam
Keyword(s):  
Indigenous Peoples ◽  
Institutional Design ◽  
Indigenous Rights ◽  
Government Agency ◽  
Self Determination ◽  
Administrative Authority ◽  
Dual Roles ◽  
Daily Work ◽  
Impossible Task ◽  
Depth Interviews

The last two decades have witnessed a growing global acknowledgement of indigenous rights, for instance manifested in the 2007 unDeclaration on the Rights of Indigenous Peoples. The Nordic countries have all responded to the rights claims of the indigenous Sámi people by establishing popularly elected Sámediggis (Sámi Parliaments) to serve as their representative bodies. Internationally, the Sámediggis are often referred to as ‘models’ for indigenous self-governance and participation. Using in-depth interviews with politicians and civil servants, this article provides the first empirical study of the daily work of the Swedish Sámediggi, with a specific focus on its institutional design as a government agency with dual roles: as an administrative authority under the Swedish government and as a popularly elected representative body of the Sámi people. We examine how these dual roles affect the work of the Sámediggi and if the Swedish Sámediggi safeguards the Sámi right to self-determination.

Recent Books on Human Rights and Groups Review Essays International Law and the Evolution of Indigenous Rights

2008 ◽  
Vol 15 (1) ◽  
pp. 117-131
Author(s):  
Stephen Allen
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Land Rights ◽  
Self Determination ◽  
Critical Stage ◽  
Conditions Of Possibility ◽  
Supranational Level

AbstractThe recent adoption of the United Nations (UN) Declaration on the Rights of Indigenous Peoples has reinvigorated the discourse on indigenous rights. This essay reviews three books – Xanthaki's Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land; Gilbert's Indigenous Peoples' Land Rights Under International Law: From Victims to Actors; and Rodriguez-Pinero's Indigenous Peoples, Postcolonialism and International Law: The ILO Regime (1919–1989) – that illustrate the way in which indigenous rights have evolved at the supranational level. Moreover, in their different ways, these important books highlight the conditions of possibility for indigenous peoples at a critical stage in the development of indigenous rights in international law.

scholarly journals Section 35 Legal Framework: Implications for Evaluation

2020 ◽  
Vol 34 (3) ◽  
Author(s):  
Robert Patrick Shepherd
Keyword(s):  
Indigenous Peoples ◽  
Professional Ethics ◽  
Indigenous Rights ◽  
Legal Framework ◽  
Legal Principles ◽  
Program Evaluations ◽  
Indigenous Nations ◽  
The Government ◽  
Relationship Of

Developments in Canada’s constitutional and legal framework since 1982 set the stage for the current Liberal government’s nation to nation policy which recognizes Indigenous rights and seeks to build a relationship of respect and partnership through reconciliation with Indigenous peoples. These developments have important implications for those engaged in policy and program evaluations who are now called upon - not only by their own professional ethics but by the legal principles flowing from section 35 - to reimagine their approach and work as partners with Indigenous nations based on the recognition of Indigenous rights, reconciliation and the Crown’s duty to act honourably in all of its dealings with Indigenous peoples. There are no off the shelf answers for how this can be done. Evaluations professionals will need to be guided by these key legal principles and the progressive view set out in the Liberal government’s Principles Respecting the Government of Canada’s Nation to Nation Relationship with Indigenous Peoples.  

The Right to Self-Determination under the Ethiopian Constitution: A Legal Tool for Indigenous Peoples’ Protection against Land Alienation?

2019 ◽  
Vol 63 (3) ◽  
pp. 359-383
Author(s):  
Tilahun Weldie Hindeya
Keyword(s):  
Decision Making ◽  
Indigenous Peoples ◽  
Indigenous Communities ◽  
Self Determination ◽  
Land Resources ◽  
Discretionary Power ◽  
The People ◽  
Constitutional Right ◽  
The Government ◽  
The Right

AbstractSince 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.

The International Court of Justice and Peoples

2007 ◽  
Vol 9 (2) ◽  
pp. 157-180
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
International Court Of Justice ◽  
Collective Rights ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Right

AbstractThe article examines how the International Court of Justice (ICJ) has dealt with the concept of peoples and peoples' rights in its jurisprudence. Most prominent has been the Court's role with respect to the right of self-determination and it is this issue that forms the core of the article. A second important question dealt with is the role of indigenous peoples in ICJ case practice, as the struggle by those peoples to gain collective rights is a recent development in international law. Drawing on this analysis, the discussion proceeds to consider the role that the ICJ has played in the development of the rights of peoples in general and what its future role might be in this sphere of international law. The article also examines the way in which the Court has allowed peoples to participate in its proceedings and whether and how its treatment of peoples' rights has strengthened the general foundations of international law.

scholarly journals ‘Quebec Sovereignty and Indigenous Nationhoods: Critiquing The Quebec Secessionist Movement from “an Indigenous” Lens’

2021 ◽  
Vol 1 (1) ◽  
pp. 7-44
Author(s):  
Chadwick Cowie ◽  
Keyword(s):  
Indigenous Peoples ◽  
Self Determination ◽  
Indigenous Nations ◽  
French And English ◽  
Societal Changes ◽  
The 1960S ◽  
The Many ◽  
Political Economic ◽  
Secessionist Movement

The purpose of this article is to assess and critique the Quebec secessionist movement from an Indigenous lens in order to include other contexts and views on the aforementioned topic that is traditionally left to the peripheries of the Quebec secessionist movement. In order to add an Indigenous lens to the discussion of Quebec’s secessionist movement, this paper will first review the concepts of sovereignty and self-determination from both ‘western-centric’ and Indigenous views. Furthermore, this article will then review the historical formation of French and English settlers and power in what Indigenous peoples call Turtle Island, from the 1500s until 1960. Lastly, with the many political, economic, and societal changes from the 1960s and on, this paper will critique the competing views of Quebec as a sovereign entity to that of Indigenous nationhoods. This article concludes that for Quebec to truly reflect a decolonized state, the inclusion of Indigenous nations as equal partners with their own sovereignty and self-determination recognized must also occur.

scholarly journals Indigenous knowledge and federal environmental assessments in Canada: applying past lessons to the 2019 impact assessment act

FACETS ◽  
2020 ◽  
Vol 5 (1) ◽  
pp. 67-90 ◽  
Author(s):  
Lauren E. Eckert ◽  
Nick XEMŦOLTW_ Claxton ◽  
Cameron Owens ◽  
Anna Johnston ◽  
Natalie C. Ban ◽  
...  
Keyword(s):  
Best Practices ◽  
Impact Assessment ◽  
Indigenous Knowledge ◽  
Indigenous Peoples ◽  
Scientific Information ◽  
Indigenous Rights ◽  
Policy Makers ◽  
Indigenous Nations ◽  
The Impact ◽  
The Relationship

Policy-makers ideally pursue well-informed, socially just means to make environmental decisions. Indigenous peoples have used Indigenous knowledge (IK) to inform decisions about environmental management for millennia. In the last 50 years, many western societies have used environmental assessment (EA) processes to deliberate on industrial proposals, informed by scientific information. Recently EA processes have attempted to incorporate IK in some countries and regions, but practitioners and scholars have criticized the ability of EA to meaningfully engage IK. Here we consider these tensions in Canada, a country with economic focus on resource extraction and unresolved government-to-government relationships with Indigenous Nations. In 2019, the Canadian government passed the Impact Assessment Act, reinvigorating dialogue on the relationship between IK and EA. Addressing this opportunity, we examined obstacles between IK and EA via a systematic literature review, and qualitative analyses of publications and the Act itself. Our results and synthesis identify obstacles preventing the Act from meaningfully engaging IK, some of which are surmountable (e.g., failures to engage best practices, financial limitations), whereas others are substantial (e.g., knowledge incompatibilities, effects of colonization). Finally, we offer recommendations for practitioners and scholars towards ameliorating relationships between IK and EA towards improved decision-making and recognition of Indigenous rights.

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