Articles 27 and 46(2): UNDRIP Signposts Pointing Beyond the Justifiable-Infringement Morass of Section 35

Abstract

This paper considers articles 27 and 46(2) of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), in the context of Canadian government promises to implement UNDRIP domestically. In particular, I note that article 46(2) echoes much of the language of section 1 of Canada's Charter of Rights and Freedoms, a proportionality clause that has been incorporated (by analogy) as a limit on the constitutional protection of Aboriginal and Treaty rights in Canada. Article 46(2) might be used to support arguments that the existing Canadian case law on Aboriginal and Treaty rights is already (largely) consistent with UNDRIP. I argue in this paper that such arguments flounder particularly on the procedural requirements of UNDRIP, notably those contained in article 27, which requires states to establish, in conjunction with Indigenous peoples, procedures "to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources". I also point to specific elements of Canadian case law that could, in the near-term, be developed in a direction tending towards consistency with the requirements of article 27.

Keywords: UNDRIP, Indigenous, Canada, Law, Domestic Implementation, Aboriginal, Treaty, Rights, Procedural