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Exploring Indigenous peoples’ right to conservation in Canada

By Aleah Lavalley-Lewis

The recent adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”) provides a renewed opportunity to ensure Indigenous peoples’ right to conserve and protect the environment is upheld. This right emulates from Indigenous peoples’ unique relationship with land that is inseparable from their socio-legal, political and spiritual systems. Upholding a right to conserve and protect the environment is especially important if we are to safeguard the health and well-being of Indigenous communities, who are disproportionately impacted by environmental injustices and prevent further environmental racism.

Indigenous peoples’ inherent right to conserve lands and waters can be upheld on the basis of international and domestic law. There are a number of international law instruments that we can look to, which uphold a right to conserve. For instance, Treaties, as a form of international law (i.e they constitute agreements between sovereign nations), secure rights to hunt, fish, and trap. The recognition of these rights protects Indigenous peoples’ perpetuation of traditional and subsistence practices. These activities are intrinsically linked to the preservation of the ecosystems they rely upon, thus the right to harvest must inherently include a right to conservation.

The idea that Indigenous peoples have unique environmental rights is also supported by the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) – an international human rights instrument that sets out the rights of Indigenous Peoples across the world. UNDRIP was adopted by the General Assembly on September 13, 2007. While Canada, under the Conservative government, initially rejected the UNDRIP, Canada officially endorsed UNDRIP on November 12, 2010. This change in stance was reflected in a statement by the Governor General of Canada, affirming Canada’s Aboriginal heritage and the need to endorse UNDRIP in a manner that was consistent with the country’s Constitution and laws.

UNDRIP demonstrates the international community’s agreement that Indigenous peoples have unique environmental and sovereign rights. For instance, Article 29(1) of UNDRIP states:

[i]ndigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination [emphasis added].

Domestically, Canadian or Crown law also supports recognition of a right to conserve and protect the environment. Indigenous peoples are the only group of people distinctly defined and given rights in the Constitution. This includes Aboriginal rights to hunt, fish, and trap under s. 35. As a result, Aboriginal peoples in Canada enjoy a right to conservation under s. 35 of the Constitution as an incident to the constitutionally guaranteed treaty and Aboriginal rights to hunt, fish, and trap. These rights have recently been explicitly set out through Canada’s adoption of UNDRIP under the UNDA.

The UNDA mandates an Action Plan, setting out how UNDRIP will be implemented. It was created in collaboration with First Nations, Metis and Inuit Peoples across Canada, and each fiscal year, an annual report must be published outlining the progress that has been made in achieving the goals of the Declaration. Notably, the preamble of UNDA rejects the doctrine of discovery and terra nullius and states that “there is an urgent need to respect and promote the rights of Indigenous peoples affirmed in treaties”. This affirms the notion that Indigenous peoples have the inherent right to conserve nature through an understanding of Indigenous peoples’ traditional way of living and that treaties were intended to preserve this.

Additionally, section 5 of UNDA states that “the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. As previously mentioned, UNDRIP explicitly provides for a right to conservation and preservation of the environment under Article 29(1). UNDA affirms UNDRIP which brings all of the Articles of UNDRIP, including Article 29 into the sphere of domestic Canadian law.

Taken together, both international and domestic law provide strong support for recognizing an inherent, Treaty right to conservation for Indigenous peoples. Moving forward, it is imperative for Canada to take action in collaboration with Indigenous communities to ensure that laws and policies are consistent with the principles outlined in UNDRIP and UNDA. Article 29(3) of UNDRIP provides a starting point, as governments have a responsibility to “take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples…are duly implemented”.

Upholding and implementing Indigenous peoples’ right to conservation is crucial for safeguarding the well-being of all communities and the environment, whose peoples, animals and ecosystems are all interconnected.

Aleah is an emerging Anishinaabe lawyer who completed her winter 2024 placement with LAND in her final year as a law student at Osgoode Hall Law School. Aleah will be an articling student at McCarthy Tetrault in Toronto for the 2024/2025 term.

This article was originally published on March 11, 2024 by Law360 Canada
Photo of High Lake, North Bay (credit to: Eric Treleaven)

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