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Braiding Legal OrdersImplementing the United Nations Declaration on the Rights of Indigenous Peoples |
eBook Available
An examination of international, Indigenous, and Canadian constitutional law relating to the implementation of UNDRIP in Canada by leading Indigenous legal scholars and policy leaders.
Implementation in Canada of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a pivotal opportunity to explore the relationship between international law, Indigenous peoples' own laws, and Canada's constitutional narratives.
Two significant statements by the current Liberal government - the May 2016 address by Indigenous Affairs Minister Carolyn Bennett to the Permanent Forum on Indigenous Issues at the United Nations and the September 2017 address to the United Nations by Prime Minister Justin Trudeau - have endorsed UNDRIP and committed Canada to implementing it as “a way forward” on the path to genuine nation-to-nation relationships with Indigenous peoples. In response, these essays engage with the legal, historical, political, and practical aspects of UNDRIP implementation. Written by Indigenous legal scholars and policy leaders, and guided by the metaphor of braiding international, domestic, and Indigenous laws into a strong, unified whole composed of distinct parts, the book makes visible the possibilities for reconciliation from different angles and under different lenses.
Two significant statements by the current Liberal government - the May 2016 address by Indigenous Affairs Minister Carolyn Bennett to the Permanent Forum on Indigenous Issues at the United Nations and the September 2017 address to the United Nations by Prime Minister Justin Trudeau - have endorsed UNDRIP and committed Canada to implementing it as “a way forward” on the path to genuine nation-to-nation relationships with Indigenous peoples. In response, these essays engage with the legal, historical, political, and practical aspects of UNDRIP implementation. Written by Indigenous legal scholars and policy leaders, and guided by the metaphor of braiding international, domestic, and Indigenous laws into a strong, unified whole composed of distinct parts, the book makes visible the possibilities for reconciliation from different angles and under different lenses.
Details
252 Pages, 7 x 10
4 b&w illustrations, 3 figures, 1 table
CIGI Press
ISBN 9781928096801
August 2023
Formats: Paperback, eBook
"A very rich collection of essays from a diverse range of authors ... I strongly recommend it." Nigel Bankes, Review of Constitutional Studies
“By keeping Canada and [section 35 of the Constitution Act, 1982] squarely in focus, this collection provides an organized and detailed account of how [section] 35 jurisprudence is wholly inadequate and highlights areas that are ripe for immediate change. Braiding Legal Orders provides a useful snapshot of various contemporary perspectives at a time when UNDRIP is increasingly taking centre stage.” Saskatchewan Law Review
“A fantastic introduction to different Indigenous legal traditions but, more specifically, to the role they need to play in implementing the UNDRIP within Canada. It focuses not only on consent and natural resource rights but also on language rights and the larger questions concerning self-determination and the goal of a nation-to-nation relationship.” The Canadian Yearbook of International Law
“By keeping Canada and [section 35 of the Constitution Act, 1982] squarely in focus, this collection provides an organized and detailed account of how [section] 35 jurisprudence is wholly inadequate and highlights areas that are ripe for immediate change. Braiding Legal Orders provides a useful snapshot of various contemporary perspectives at a time when UNDRIP is increasingly taking centre stage.” Saskatchewan Law Review
“A fantastic introduction to different Indigenous legal traditions but, more specifically, to the role they need to play in implementing the UNDRIP within Canada. It focuses not only on consent and natural resource rights but also on language rights and the larger questions concerning self-determination and the goal of a nation-to-nation relationship.” The Canadian Yearbook of International Law
John Borrows is senior fellow with the International Law Research Program (ILRP) at the Centre for International Governance Innovation (CIGI).
Larry Chartrand is academic director of the Native Law Centre at the University of Saskatchewan.
Oonagh E. Fitzgerald is former director of international law at the Centre for International Governance Innovation.
Risa Schwartz is a former senior research fellow at CIGI and principal of Risa Schwartz International Law.
Larry Chartrand is academic director of the Native Law Centre at the University of Saskatchewan.
Oonagh E. Fitzgerald is former director of international law at the Centre for International Governance Innovation.
Risa Schwartz is a former senior research fellow at CIGI and principal of Risa Schwartz International Law.
Preface | ix
Larry Chartrand, Oonagh E. Fitzgerald and Risa Schwartz
Introduction | 1
John Borrows
Part I: International Law Perspectives
1 The Art of Braiding Indigenous Peoples’ Inherent Human Rights into the Law of Nation-States | 13
James (Sa’ke’j) Youngblood Henderson
2 Using Legislation to Implement the UN Declaration on the Rights of Indigenous Peoples | 21
Sheryl Lightfoot
3 Revitalizing Canada’s Indigenous Constitution: Two Challenges | 29
John Borrows
4 “We have never been domestic”: State Legitimacy and the Indigenous Question. 39
Joshua Nichols
5 Indigenous Legal Orders, Canadian Law and UNDRIP | 47
Gordon Christie
6 Bringing a Gendered Lens to Implementing the UN Declaration on the Rights of Indigenous Peoples | 55
Brenda L. Gunn
Part II: Indigenous Law Perspectives
7 Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult | 65
Sarah Morales
8 Mapping the Meaning of Reconciliation in Canada: Implications for Métis-Canada Memoranda of Understanding on Reconciliation Negotiations | 83
Larry Chartrand
9 Our Languages Are Sacred: Indigenous Language Rights in Canada | 93
Lorena Sekwan Fontaine
10 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water) | 101
Aimée Craft
11 Rebuilding Relationships and Nations: A Mi’kmaw Perspective of the Path to Reconciliation | 111
Cheryl Knockwood
12 Canary in a Coal Mine: Indigenous Women and Extractive Industries in Canada | 119
Sarah Morales
Part III: Domestic Law Perspectives
13 Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law | 135
Brenda L. Gunn
14 UNDRIP and the Move to the Nation-to-Nation Relationship | 145
Joshua Nichols
15 Options for Implementing UNDRIP without Creating Another Empty Box | 153
Jeffery G. Hewitt
16 Asserted vs. Established Rights and the Promise of UNDRIP |159
Robert Hamilton
17 Articles 27 and 46(2): UNDRIP Signposts Pointing beyond the Justifiable-infringement Morass of Section 35 | 167
Ryan Beaton
18 Strategizing UNDRIP Implementation: Some Fundamentals | 177
Kerry Wilkins
19 UNDRIP Implementation, Intercultural Learning and Substantive Engagement with Indigenous Legal Orders | 189
Hannah Askew
Part IV: Concluding Thoughts
20 Implementation of UNDRIP within Canadian and Indigenous Law: Assessing Challenges | 199
Gordon Christie
21 Conflicts or Complementarity with Domestic Systems? UNDRIP, Aboriginal Law and the Future of International Norms in Canada | 207
Joshua Nichols and Robert Hamilton
22 UNDRIP as a Catalyst for Aboriginal and Treaty Rights Implementation and Reconciliation | 215
Cheryl Knockwood
23 The Necessity of Exploring Inherent Dignity in Indigenous Knowledge Systems | 223
James (Sa’ke’j) Youngblood Henderson
Contributors | 229
Artist Credits | 235
Larry Chartrand, Oonagh E. Fitzgerald and Risa Schwartz
Introduction | 1
John Borrows
Part I: International Law Perspectives
1 The Art of Braiding Indigenous Peoples’ Inherent Human Rights into the Law of Nation-States | 13
James (Sa’ke’j) Youngblood Henderson
2 Using Legislation to Implement the UN Declaration on the Rights of Indigenous Peoples | 21
Sheryl Lightfoot
3 Revitalizing Canada’s Indigenous Constitution: Two Challenges | 29
John Borrows
4 “We have never been domestic”: State Legitimacy and the Indigenous Question. 39
Joshua Nichols
5 Indigenous Legal Orders, Canadian Law and UNDRIP | 47
Gordon Christie
6 Bringing a Gendered Lens to Implementing the UN Declaration on the Rights of Indigenous Peoples | 55
Brenda L. Gunn
Part II: Indigenous Law Perspectives
7 Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult | 65
Sarah Morales
8 Mapping the Meaning of Reconciliation in Canada: Implications for Métis-Canada Memoranda of Understanding on Reconciliation Negotiations | 83
Larry Chartrand
9 Our Languages Are Sacred: Indigenous Language Rights in Canada | 93
Lorena Sekwan Fontaine
10 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water) | 101
Aimée Craft
11 Rebuilding Relationships and Nations: A Mi’kmaw Perspective of the Path to Reconciliation | 111
Cheryl Knockwood
12 Canary in a Coal Mine: Indigenous Women and Extractive Industries in Canada | 119
Sarah Morales
Part III: Domestic Law Perspectives
13 Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law | 135
Brenda L. Gunn
14 UNDRIP and the Move to the Nation-to-Nation Relationship | 145
Joshua Nichols
15 Options for Implementing UNDRIP without Creating Another Empty Box | 153
Jeffery G. Hewitt
16 Asserted vs. Established Rights and the Promise of UNDRIP |159
Robert Hamilton
17 Articles 27 and 46(2): UNDRIP Signposts Pointing beyond the Justifiable-infringement Morass of Section 35 | 167
Ryan Beaton
18 Strategizing UNDRIP Implementation: Some Fundamentals | 177
Kerry Wilkins
19 UNDRIP Implementation, Intercultural Learning and Substantive Engagement with Indigenous Legal Orders | 189
Hannah Askew
Part IV: Concluding Thoughts
20 Implementation of UNDRIP within Canadian and Indigenous Law: Assessing Challenges | 199
Gordon Christie
21 Conflicts or Complementarity with Domestic Systems? UNDRIP, Aboriginal Law and the Future of International Norms in Canada | 207
Joshua Nichols and Robert Hamilton
22 UNDRIP as a Catalyst for Aboriginal and Treaty Rights Implementation and Reconciliation | 215
Cheryl Knockwood
23 The Necessity of Exploring Inherent Dignity in Indigenous Knowledge Systems | 223
James (Sa’ke’j) Youngblood Henderson
Contributors | 229
Artist Credits | 235
