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7 Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult

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Braiding Legal Orders
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65Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to ConsultSarah MoralesOn May 10, 2016, the federal Minister of Indigenous and Northern Affairs, Carolyn Bennett, announced Canada’s latest position on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1 She confirmed that Canada is now a full supporter of UNDRIP, without qualification, and that Canada intends to adopt and implement UNDRIP in accordance with the Canadian Constitution. At the United Nations Permanent Forum on Indigenous Issues, she recognized that “Canada has a long history of multilateralism and respect for the values of internationalism and pluralism.”2 The minister also stated, “through Section 35 of its Constitution, Canada has a robust framework for the protection of indigenous rights.... Canada believes that our constitutional obligations serve to fulfill all of the principles of the declaration, including ‘free, prior and informed consent.’ We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007) [UNDRIP].2 Minister of Indigenous and Northern Affairs Carolyn Bennett, “Announcement of Canada’s Support for the United Nations Declaration on the Rights of Indigenous Peoples” (Statement delivered at the 15th Session of the United Nations Permanent Forum on Indigenous Issues, 10 May 2016).7
© 2023, McGill-Queen's University Press

65Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to ConsultSarah MoralesOn May 10, 2016, the federal Minister of Indigenous and Northern Affairs, Carolyn Bennett, announced Canada’s latest position on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).1 She confirmed that Canada is now a full supporter of UNDRIP, without qualification, and that Canada intends to adopt and implement UNDRIP in accordance with the Canadian Constitution. At the United Nations Permanent Forum on Indigenous Issues, she recognized that “Canada has a long history of multilateralism and respect for the values of internationalism and pluralism.”2 The minister also stated, “through Section 35 of its Constitution, Canada has a robust framework for the protection of indigenous rights.... Canada believes that our constitutional obligations serve to fulfill all of the principles of the declaration, including ‘free, prior and informed consent.’ We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among 1 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007) [UNDRIP].2 Minister of Indigenous and Northern Affairs Carolyn Bennett, “Announcement of Canada’s Support for the United Nations Declaration on the Rights of Indigenous Peoples” (Statement delivered at the 15th Session of the United Nations Permanent Forum on Indigenous Issues, 10 May 2016).7
© 2023, McGill-Queen's University Press

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Preface ix
  4. Introduction 1
  5. Part I: International Law Perspectives
  6. 1 The Art of Braiding Indigenous Peoples’ Inherent Human Rights into the Law of Nation-States 13
  7. 2 Using Legislation to Implement the UN Declaration on the Rights of Indigenous Peoples 21
  8. 3 Revitalizing Canada’s Indigenous Constitution: Two Challenges 29
  9. 4 “We have never been domestic”: State Legitimacy and the Indigenous Question 39
  10. 5 Indigenous Legal Orders, Canadian Law and UNDRIP 47
  11. 6 Bringing a Gendered Lens to Implementing the UN Declaration on the Rights of Indigenous Peoples 55
  12. Part II: Indigenous Law Perspectives
  13. 7 Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult 65
  14. 8 Mapping the Meaning of Reconciliation in Canada: Implications for Métis-Canada Memoranda of Understanding on Reconciliation Negotiations 83
  15. 9 Our Languages Are Sacred: Indigenous Language Rights in Canada 93
  16. 10 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water). 101
  17. 11 Rebuilding Relationships and Nations: A Mi’kmaw Perspective of the Path to Reconciliation 111
  18. 12 Canary in a Coal Mine: Indigenous Women and Extractive Industries in Canada 119
  19. Part III: Domestic Law Perspectives
  20. 13 Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law 135
  21. 14 UNDRIP and the Move to the Nation-to-Nation Relationship 145
  22. 15 Options for Implementing UNDRIP without Creating Another Empty Box 153
  23. 16 Asserted vs. Established Rights and the Promise of UNDRIP 159
  24. 17 Articles 27 and 46(2): UNDRIP Signposts Pointing beyond the Justifiable-infringement Morass of Section 35 167
  25. 18 Strategizing UNDRIP Implementation: Some Fundamentals 177
  26. 19 UNDRIP Implementation, Intercultural Learning and Substantive Engagement with Indigenous Legal Orders 189
  27. Part IV: Concluding Thoughts
  28. 20 Implementation of UNDRIP within Canadian and Indigenous Law: Assessing Challenges 199
  29. 21 Conflicts or Complementarity with Domestic Systems? UNDRIP, Aboriginal Law and the Future of International Norms in Canada 207
  30. 22 UNDRIP as a Catalyst for Aboriginal and Treaty Rights Implementation and Reconciliation 215
  31. 23 The Necessity of Exploring Inherent Dignity in Indigenous Knowledge Systems 223
  32. Contributors 229
  33. Artist Credits 235
Readers are also interested in:
https://doi.org/10.1515/9781928096832-009

Chapters in this book

  1. Frontmatter i
  2. Contents v
  3. Preface ix
  4. Introduction 1
  5. Part I: International Law Perspectives
  6. 1 The Art of Braiding Indigenous Peoples’ Inherent Human Rights into the Law of Nation-States 13
  7. 2 Using Legislation to Implement the UN Declaration on the Rights of Indigenous Peoples 21
  8. 3 Revitalizing Canada’s Indigenous Constitution: Two Challenges 29
  9. 4 “We have never been domestic”: State Legitimacy and the Indigenous Question 39
  10. 5 Indigenous Legal Orders, Canadian Law and UNDRIP 47
  11. 6 Bringing a Gendered Lens to Implementing the UN Declaration on the Rights of Indigenous Peoples 55
  12. Part II: Indigenous Law Perspectives
  13. 7 Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult 65
  14. 8 Mapping the Meaning of Reconciliation in Canada: Implications for Métis-Canada Memoranda of Understanding on Reconciliation Negotiations 83
  15. 9 Our Languages Are Sacred: Indigenous Language Rights in Canada 93
  16. 10 Navigating Our Ongoing Sacred Legal Relationship with Nibi (Water). 101
  17. 11 Rebuilding Relationships and Nations: A Mi’kmaw Perspective of the Path to Reconciliation 111
  18. 12 Canary in a Coal Mine: Indigenous Women and Extractive Industries in Canada 119
  19. Part III: Domestic Law Perspectives
  20. 13 Beyond Van der Peet: Bringing Together International, Indigenous and Constitutional Law 135
  21. 14 UNDRIP and the Move to the Nation-to-Nation Relationship 145
  22. 15 Options for Implementing UNDRIP without Creating Another Empty Box 153
  23. 16 Asserted vs. Established Rights and the Promise of UNDRIP 159
  24. 17 Articles 27 and 46(2): UNDRIP Signposts Pointing beyond the Justifiable-infringement Morass of Section 35 167
  25. 18 Strategizing UNDRIP Implementation: Some Fundamentals 177
  26. 19 UNDRIP Implementation, Intercultural Learning and Substantive Engagement with Indigenous Legal Orders 189
  27. Part IV: Concluding Thoughts
  28. 20 Implementation of UNDRIP within Canadian and Indigenous Law: Assessing Challenges 199
  29. 21 Conflicts or Complementarity with Domestic Systems? UNDRIP, Aboriginal Law and the Future of International Norms in Canada 207
  30. 22 UNDRIP as a Catalyst for Aboriginal and Treaty Rights Implementation and Reconciliation 215
  31. 23 The Necessity of Exploring Inherent Dignity in Indigenous Knowledge Systems 223
  32. Contributors 229
  33. Artist Credits 235
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