Indigenous Recognition in International Law: Theoretical Observations

This Essay addresses this question in the context of the evolving status of indigenous peoples in international law. International instruments vest rights in indigenous peoples, and establish indigenous peoples as international legal actors to whom States and other international legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization (ILO) began to supervise indigenous working conditions in colonies. They continued after the Second World War with ILO Conventions No. 107 and 169, which vested rights in indigenous populations located in States that are a party to their terms. More recently, the U.N. General Assembly enacted the Declaration on the Rights of Indigenous Peoples, which declares that indigenous peoples possess a wide array of rights, including the right to self-determination. It affirms the international legal existence of indigenous peoples by recognizing them as legal subjects, and it renders international law applicable to their relations with States. Some of these international instruments, such as conventions adopted by the ILO, legally bind States that are a party to their terms. Others, like the U.N. Declaration, do not, strictly speaking, legally bind international legal actors, but they nonetheless have diffuse legal consequences for the development of both international and domestic law

Thick Law, Thin Justice

Review of The Thin Justice of International Law: A Moral Reckoning of the Law of Nations by Steven R. Ratner

What\u27s Law Got to Do with It?: The Protection of Aboriginal Title in Canada

This essay presents and contrasts two narratives on the past and future of the law of Aboriginal title. The first narrative, drawn from the Final Report of the Royal Commission on Aboriginal Peoples, grounds the law of Aboriginal title in inter-societal norms that enabled the mutual coexistence of colonists and settlers in North America. It locates Aboriginal territorial dispossession in colonial policies and practices that failed to conform to the spirit of mutual coexistence, and calls on governments to provide Aboriginal people with lands and resources necessary for self-sufficiency. The counter-narrative describes the law of Aboriginal title as a relatively minor exception to a more general legal legacy of Aboriginal territorial dispossession. It argues that the law should acknowledge that it has produced unjust distributions of title in Canada. It calls on the law of Aboriginal title to allocate proprietary power to Aboriginal people in ways that force governments to introduce reforms similar to those recommended by the Royal Commission

From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements . It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good faith efforts to negotiate an agreement specifying the rights of the parties when it seeks to engage in an action that adversely affects Aboriginal interests

Securing Accountability through Commissions of Inquiry: A Role for the Law Commission of Canada

Focusing on the Government of Ontario\u27s unwillingness to call a public inquiry into the death of Dudley George, an Aboriginal protester, and the Government of Canada\u27s willingness to interfere with an inquiry into the deployment of Canadian forces to Somalia, this article argues that governments appear increasingly reluctant to support a commission of inquiry into a public crisis even where it can serve as a catalyst for addressing larger and more pressing concerns of institutional and policy reform. It first addresses start-up problems associated with the fact that the decision to appoint a commission of inquiry lies within the sole discretion of cabinet. It also canvasses incentives and disincentives on political actors and the media to call for the establishment of a commission of inquiry. It then examines shut down problems associated with governmental efforts to prematurely end or restrict a commission\u27s activity. Borrowing several features from the Independent Counsel and the Inspector General Models in the United States, the article proposes that the Law Commission of Canada act as a permanent base of operations for federal commissions of inquiry, and suggests that commissions of inquiry adopt non-confrontational methods and procedures that encourage governments and other parties to sit down and engage in a constructive exercise of fact-finding, polity formulation and structural reform

Book Review of \u3ci\u3eIdentity Captured by Law: Membership in Canada’s Indigenous Peoples and Linguistic Minorities\u3c/i\u3e by Sébastien Grammond

In Identity Captured by Law, Sébastien Grammond assesses the constitutional and international legality of rules that control membership in Indigenous societies and the official language minorities of Canada. Grammond’s main argument is that Indigenous and minority membership rules do not violate legal commitments to equality if there is sufficient correspondence between the legal criteria that determine membership and the actual criteria that group members themselves deploy to define themselves. Membership rules based on a racial conception of ethnic identity are less likely than those based on cultural or relational conceptions of ethnic identity to correspond to actual identities and therefore are more likely to violate equality rights. This argument requires a substantive as opposed to formal conception of equality, which Grammond develops and defends at some length. Comprehending equality in substantive terms means membership rules are not inherently discriminatory but instead that their constitutional and international legality rests on the extent to which they improve the situation of the group in question as opposed to simply oppressing or stereotyping individual members of the group