International Law and the Right of Indigenous Self-Determination: Should International Norms Be Replicated in the Canadian Context?

Abstract

In international law Indigenous self-determination is often given different meaning and content than in the Canadian domestic context. However, there is no firm agreement on what Indigenous self-determination entails. This paper argues that Indigenous self-determination is the right of Indigenous peoples to choose how they live their shared lives and structure their communities based on their own norms, laws, and cultures. It includes the freedom and equal human right to control one's destiny, usually in the context of communities. More specifically, this article argues that in the Canadian context, Aboriginal communities constitute "peoples," and therefore, should be accorded the right of self-determination as defined by international law.

Following a brief historical analysis of the development of Indigenous self-determination in international law, the paper includes a closer examination of the concept of self-determination, particularly from the standpoint of internal versus external forms. This leads to an application of self-determination to "peoples," including legal analyses of who constitutes "peoples" under international and Canadian common law. In so doing, the relevant defining features of "peoples" and the right of "peoples" to self-determination are defined in the Canadian context.

Keywords: Indigenous Self-Determination, International Law, Canada