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10 International law and
Indigenous peoples
In the past, the intersection of public inter national law and the Ca n-
adian law of Aborig inal rig hts has not been very fr uitful. Twentieth-
century international law and practice had rather l ittle to say on the
rights of Indigenous peoples. Few instr uments specica lly addressed
their interests, while general i nternational law neglected their claims
to sovereignty and recognition. ough i nternational scrutiny has
sometimes played a role in the development of Canadi an policy, Can-
adian Aborig inal law has, to date, develope d largely independently from
international legal requ irements. But Indigenous peoples, particularly
from this country, have long pressed their ca se on the world stage, and
the recognition of internationa l norms concerning Indigenous rights is
a major feature of international law in t he early twenty-rst century.
Meanwhile, internationa l legal issues are entering the Canadia n law of
Indigenous rights in new and de veloping ways.
e eort famousl y began with Deska heh’s mission to the Leag ue of Nations
on behalf of t he Six Nations of the Iroquois in 9 –. See Deskaheh, “ e
Redman’s Appea l for Justice” ( August ), onli ne: http://cendoc.docip.org /
collect/deskaheh/index/assoc/HASH/ecbe.dir/R----
.pdf. On the histor y of Indigenous intern ational legal act ivity, see D Sand-
ers, “e Re- Emergence of Indigenous Quest ions in Internationa l Law” []
Canadian Human Rights Yearbook [Sanders]; I Washinawatok, “ International
Emergence: Twenty-One Years at t he United Nations” () : New York City
Law Review [Washinawatok]; SJ Anaya & L R odriguez-Pi ñero, “e Making
of the UNDRIP ” in J Hohmann & M Weller, eds , e UN Declaration on the Rights
of Indigenous Peoples: A Commentar y (Oxford: Oxford Univers ity Press, )
[Anaya & Rodr iguez-Piñero].
Using International Law in Canadian Courts
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ree key issues demand consideration. e rst i s the signi-
cance in Canadi an law of international nor ms concerning Indigenous
peoples. By far the most important statement of such norms tod ay is
the United Nations Declaration on the R ights of Indigenous Peoples.
e Declaration’s impact on Canadian l aw is potentially momentous.
e second issue is the constitutional duty of the Crown to consult,
and potentially accommodate, Indigenous p eoples. Does this duty con-
strain the foreign a airs prerogative? Finally and rel atedly, no con-
temporary account of internationa l law in Canada is complete without
considering the remarkable reception law provisions included in mod-
ern treaties between Indigenous peoples and federal, provinci al, and
territorial governments.
10.1 International legal provisions on Indigenous peoples
is is not the place for anything like a complete account of the inter-
national law of Indigenous ri ghts. For present purposes, I briey rev iew
the main instr uments, disting uishing forma lly binding inst ruments
(treaties) from today’s leading, if formally non-bindi ng, instrument,
the Declaration. First, however, we must consider the lega l character
of historic and modern treaties bet ween the Crown and Indigenous
peoples.
(a) Possible international character of Crown–Indigenous
treaties
e fact that Canadi an (and indeed Anglo-America n) law uses the term
“treaty” to describe bot h agreements governed by internationa l law
and agreements between colonial authorities and Indigenous peoples
is not mere coincidence. It is evidence of the origina l, nation-to-nation
conception of relations between “Old World” and “New World” powers.
Just as British and French kings made agreements with other Euro -
pean princes, so too did they m ake agreements with t he Indigenous
GA Res / ( Octobe r ) [UN Declaration].
See, e.g., SJ Anaya , International Human Rights and Ind igenous Peoples (Frederic k,
MD: Aspen Pub lishing, ); J Hohma nn & M Weller, eds, e UN Declarati on
on the Rights of Indigenous People s: A Commentary (Oxford: Oxford Un iversity
Press, ); D Newma n, ed, Research Handbook on the Inte rnational Law of
Indigenous Rights (Chelte nham: Edward Elga r Publishing, ).
