Indigenous Rights, Investor-State Disputes, and Canadian Law

Abstract

Indigenous peoples encounter serious challenges in asserting their rights and interests in the context of investor-state arbitrations arising out of international investment. Foreign direct investment occurs all over the globe, and it often has a negative effect on Indigenous communities, but the communities are not given a seat at the table if an investor-state arbitration implicates their rights. The United Nations Declaration on the Rights of Indigenous Peoples is essential in finding a solution. After initially opposing the Declaration, Canada now supports it, and Canada’s current approach to implementing the Declaration could serve as a blueprint for other countries implementing the Declaration. The disadvantage Indigenous peoples face in investor-state disputes can be remedied through implementation of the Declaration. Canada can start fixing the problem by incorporating parts of the Declaration into its domestic law and holding Canadian companies accountable when conducting business abroad. Other countries can follow suit and begin the process of making investor-state disputes more responsive to the rights and interests of Indigenous peoples.