aboriginal rights

  • 26m 14s

    Mark Gordon and Eric Tagoona on Constitution

    uploaded by: IBC admin

    channel: IBC

    Mark Gordon and Eric Tagoona on Constitution

    Inukshuk Program

    Host: Joanasie Solomonie

    Segment 1: Mark Gordon and Eric Tagoona talk about the process of getting the aboriginal issues implemented into the constitution of Canada. They both talk about the challenges and how much work is involved in the process.

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    uploaded date: 07-05-2015

  • The Bell Tolls for Free Entry in Canada

    uploaded by: Cara Di Staulo

    channel: DID News

    Legal Victory for Yukon First Nation Will Have Implications Across the Country

    The Ross River Dena First Nation have learned that the Supreme Court of Canada will not hear the Yukon Government’s appeal of an earlier decision that sharply rebuked the territory’s free entry mineral staking regime. This means the earlier decision of the Yukon Court of Appeal stands.

    Ross River took the government to court over its practice of allowing mineral claims to be staked and early exploration activities to occur on the First Nation’s traditional lands without prior consultation or accommodation of their Aboriginal rights and title. (Yukon Conservation Society has a great animated graphic of claim staking in the Yukon.) The Judge hearing the case for the Yukon Court of Appeal agreed and found in favour of Ross River requiring the Yukon government to consult and accommodate Ross River’s Aboriginal rights and title before claim staking and before any exploration activities occur.

    While the need to consult on later stage exploration activities is fairly well established in Canadian case law (though not respected in all jurisdictions) this is the first time the courts have clearly indicated the need to have consultation BEFORE a prospector or mining company stakes a property. The decision is an important recognition that claim staking is not free of impacts to Aboriginal title as it establishes a 3rd party interest that can greatly encumber future decisions about the land.

    The Yukon government argued that they did not have a duty to consult because they were not actively making decisions about claim staking or early exploration. The Court of Appeal Judge didn’t buy that, stating:

    “The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nations can be reconciled with the Crown’s right to manage resources. Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.”

    As is to be expected, there have been hyperbolic statements from the Yukon Prospectors' Association about the sky falling in on the industry. CBC quoted the Association’s president saying that:

    Anything that detracts from the Yukon's otherwise good reputation as a place to invest in mineral exploration will make it tougher for us at the bottom of the food chain to defend the properties we're exploring.

    The Prospectors' Association fails to recognise that persistent conflict and lack of clarity about the process for reconciling Aboriginal rights and title are as likely (if not more so) to scare away investors, as are extra steps involved in staking a claim, early consultation or the removal of some areas from access to staking in order to respect Aboriginal rights and title.

    The need to address Aboriginal title before claim staking is likely to have implications across Canada as there is no jurisdiction that has a system in place to do so. Parts of some provinces and territories may be compliant with the Ross River decision on claim staking if a land use plan identifying areas open for staking has been agreed to with the Aboriginal peoples of the area. There are, however, relatively few areas where this is the case.

    The requirement to consult before any exploration activities occur is likely to require modifications to most existing consultation processes. A possible exception is Ontario, where new regulations require consultation by mining companies before they file work plans or request exploration permits.

    Provincial, territorial and the federal governments will likely argue that the decision doesn’t apply to areas with historic or modern treaties as their interpretation of the treaties is that they extinguish all prior Aboriginal rights and title. Aboriginal signatories and some legal experts disagree with the Crown’s interpretation of the treaties and will likely push to apply the decision more broadly.

    Areas without historic or modern land-based treaties include most of B.C., parts of Ontario, Quebec, and Newfoundland and Labrador, and all of the Maritimes.  In theory, there should be few barriers to applying the full scope of the Ross River decision to these areas.

    The Yukon government was mandated by the court to respond to its decision by the end of the year but their response so far indicates they do not intend to apply the decision outside of the Ross River area. Whether other territorial and provincial governments see the writing on the wall remains to be seen. If past history is any indication, it may take more lawsuits to ensure they live up to the standard established by the Ross River case - a pattern that has caught the attention of the UN Committee on the Elimination of Racial Discrimination. The Committee's 2012 report on Canada expressed concern "that Aboriginal peoples incur heavy financial expenditures in litigation to resolve land disputes with the State party owing to rigidly adversarial positions taken by the State party in such disputes."

    NOTE: The full Ross River vs. Yukon Court of Appeal decision is quite readable and available here. A few select quotes are included below.

    [43] I fully understand that the open entry system continued under the Quartz Mining Act* has considerable value in maintaining a viable mining industry and encouraging prospecting. I also acknowledge that there is a long tradition of acquiring mineral claims by staking, and that the system is important both historically and economically to Yukon. It must, however, be modified in order for the Crown to act in accordance with its constitutional duties.

    [44] The potential impact of mining claims on Aboriginal title and rights is such that mere notice cannot suffice as the sole mechanism of consultation. A more elaborate system must be engrafted onto the regime set out in the Quartz Mining Act. In particular, the regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected.

    [51] At least where Class 1 exploration activities will have serious or long-lasting adverse effects on claimed Aboriginal rights, the Crown must be in a position to engage in consultations with First Nations before the activities are allowed to take place. The affected First Nation must be provided with notice of the proposed activities and, where appropriate, an opportunity to consult prior to the activity taking place. The Crown must ensure that it maintains the ability to prevent or regulate activities where it is appropriate to do so.




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    uploaded date: 09-12-2013

  • U.N. Declaration Anniversary Draws Aboriginal Calls for Resource Control in Canada

    uploaded by: Cara Di Staulo

    channel: Isuma News

    The next step in the implementation of the United Nations Declaration on the Rights of Indigenous Peoples is to give them full control over whether resource development projects take place on their land, Canada’s aboriginals said in a statement commemorating the sixth anniversary of the 2007 signing of the document.

     “Decisions about the land go to the very heart of who we are as Indigenous Peoples,” said Perry Bellegarde, Chief of the Federation of Saskatchewan Indian Nations and Saskatchewan Regional Chief of the Assembly of First Nations, in the statement, which was also signed by Inuit Tapiriit Kanatami, Amnesty International of Canada, the Council of Canadians and several other groups. “We need to be able to make our own decisions, with full access to all the relevant information and without pressure or coercion, to ensure that the land is used in a way that reflects our values and our needs. We will always promote processes that unite us in finding long-lasting solutions.”

    “Inuit have indicated through our joint Circumpolar Inuit Declaration on Resource Development Principles in Inuit Nunaat that we want to be partners in development and seek out projects that benefit our communities,” said National Inuit Leader Terry Audla, President of Inuit Tapiriit Kanatami. “We see this as a natural extension of our rights as Aboriginal People, which are protected in Canada’s Constitution and in our five comprehensive land claims as well as the U.N. Declaration.”

    Below is the full statement.


    Indigenous Peoples have the right to make decisions about the development of their lands

    Six years ago—on September 13, 2007—the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples as the minimum standards for the “survival, dignity and well-being” of Indigenous Peoples around the world.

    The UN Declaration recognizes Indigenous Peoples’ right to self-determination and calls for the full and effective participation of Indigenous Peoples in all decisions potentially affecting their land. The Declaration urges partnership and collaboration between states and Indigenous Peoples. It sets out the requirement of free, prior and informed consent (FPIC) to protect the right of Indigenous Peoples to make decisions about whether and when development should proceed.

    Implementation of the UN Declaration remains critical as Indigenous Peoples around the world continue to face exploitation of the natural resources of their territories. FPIC and other rights affirmed in the UN Declaration provide indispensable safeguards as Indigenous Peoples struggle to overcome a history of discrimination, marginalization and dispossession.

    James Anaya, the UN Special Rapporteur on the Rights of Indigenous Peoples, has said, “Implementation of the Declaration should be regarded as a political, moral and legal imperative without qualification.”

    In this context, it is alarming that Canada, a country at the center of the global extractive industry, continues to fight against recognition and implementation of the human rights protections set out in the UN Declaration.

    An estimated three-quarters of the world’s mining and mineral exploration companies are headquartered in Canada. Canada’s national Economic Action Plan is intended to support the development of an estimated 600 new large-scale resource extraction projects in the next decade. Also, Canada is promoting opportunities for Canadian oil and gas, mining and other extractive industries to expand their operations around the world.

    Many of these projects will affect lands and waters that Indigenous Peoples depend on as the basis of their economies, cultural traditions, languages and spiritual life. Indigenous Peoples’ rights over these lands are often the subject of ongoing legal disputes arising from centuries of unlawful dispossession under discredited doctrines such as Terra Nullius and the Doctrine of Discovery. In some cases, such as oil sands extraction or hydraulic fracturing, the long term and cumulative effects of the planned development are poorly understood.

    For Indigenous women, unchecked resource development has been especially destructive, contributing to a rise in violence, sex trafficking and exploitation as large numbers of outside workers are brought into Indigenous Peoples’ territories.

    A very high standard of precaution is essential to ensure that any decisions about resource development benefit rather than harm Indigenous Peoples. Under international human rights law, that standard will almost always be one of free, prior and informed consent.

    Regretfully Canada has taken the unsupportable position that the UN Declaration should have no effect on development decisions. This position is contrary to basic principles of international law and the decisions of Canadian courts.

    International human rights instruments such as the UN Declaration provide vital guidance to governments, courts and the private sector in defining the rights that may be at stake and the measures needed to protect them. The UN Declarationreflects foundational principles of international law, such as the prohibition against racial discrimination, and incorporates standards already well-established through expert interpretation and application of other regional and international human rights instruments.

    Canadian courts have concluded that declarations and other instruments are “relevant and persuasive” sources of interpretation of human rights in Canada. Court interpretation of the affirmation of Aboriginal and Treaty rights in the Canadian Constitution has evolved in parallel to international law and reached conclusions that would support international human rights, including free, prior and informed consent. The Supreme Court of Canada has called for Indigenous Peoples’ meaningful participation in decision making and the substantial accommodation of their concerns including, where there are very serious issues, acknowledgement that projects should proceed on the basis of Indigenous Peoples’ consent. The Supreme Court of Canada will specifically consider the relevance of international human rights standards including the UN Declaration in a crucial case on Aboriginal title, the William case, which comes before the Court this November.

    The federal government has opposed the right of FPIC by casting it as an unacceptable power of absolute veto. This is misleading. Very few rights in international law are absolute. International human rights bodies have been clear that FPIC is a protective measure that is applied in proportion to the potential for harm – the same standard supported by Canadian courts.

    The federal government’s continued opposition to FPIC puts Canada at odds with progressive trends within industry. Since the adoption of the UN Declaration, there has been clear and growing momentum toward FPIC in the private sector with the standard being adopted or endorsed by influential bodies, including the International Financial Corporation, the arm of the World Bank responsible for private sector funding, and the International Council on Mining and Metals.

    The imposition of resource development without the meaningful involvement of Indigenous Peoples, or against their wishes, is a colonialist model that has no place in the 21st Century. We must dispense with colonial attitudes and practices so that the human rights of all can be respected and fulfilled without discrimination. The UN Declaration provides a roadmap for another approach, based on human rights, justice, non-discrimination and reconciliation – values that all Canadians can be proud to support. Such an approach is long overdue and should be embraced.

    The joint statement was endorsed by the following organizations:

    Amnesty International Canada
    Assembly of First Nations
    Canadian Friends Service Committee (Quakers)
    Chiefs of Ontario
    Council of Canadians
    Federation of Saskatchewan Indian Nations
    First Nations Summit (British Columbia)
    Femmes Autochtones du Québec / Quebec Native Women
    Grand Council of the Crees (Eeyou Istchee)
    Haudenosaunee of Kanehsatà:ke
    Inuit Tapiriit Kanatami
    KAIROS: Canadian Ecumenical Justice Initiatives
    MiningWatch Canada
    Native Women’s Association of Canada
    Union of British Columbia Indian Chiefs


    Read more at Indian Country Today


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    uploaded date: 13-09-2013

  • yindjibarndi

    uploaded by: mardawud

    The Yindjibarndi Aboriginal Corporation (YAC) is the development arm and trustee of lands of the Yindjibarndi nation in the Pilbara region of Western Australia

    Juluwarlu Group Aboriginal Corporation (JGAC) is the cultural recording, archiving and media production organization of the Yindjibarndi People. http://www.juluwarlu.com.au/archive

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    uploaded date: 17-04-2011

  • 57m 18s


    uploaded by: NFB

    channel: The National Film Board of Canada

    Synopsis: A film about the three Conferences on the Constitutional Rights of the Aboriginal Peoples of Canada (1983-84-85), focussing on the concept of self-government.

    Only available in English/Version anglaise seulement.

    Filmmaker: Maurice Bulbulian

    Contact: National Film Board of Canada

    Producer: National Film Board of Canada

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    uploaded date: 29-04-2010