Indigenous Rights

Since its approval in 2007 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has come to express a global consensus on the rights of Indigenous peoples, including on the right to self-determination, by virtue of which they freely determine their economic development (Art. 3); on the right to autonomy in matters relating to their own internal and local affairs (Art.4); and on the right to determine their priorities for exercising their right to development (Art.23). As a consequence, certain state actions—such as measures affecting ancestral lands and indigenous livelihoods—are not permissible without Indigenous peoples’ Free, Prior and Informed Consent (FPIC). Research questions on this topic include: how is UNDRIP being implemented in Canada and throughout Latin America; what are the challenges of enforcing international law standards in domestic law; what are the responses of judiciaries to this challenge; is there consistency across corporate policies on FPIC; and can there be extraterritorial application of human rights or UNDRIP standards, for example, concerning Canadian corporations operating in Latin America?

Indigenous Law

Where state systems have failed to uphold Indigenous rights and recognize ancestral territories and governance systems, Indigenous peoples have nonetheless asserted their autonomy through their own legislation and governance practices. Research questions include: what are the mechanisms or approaches developed by Indigenous peoples to respond to encroachments on their territories, to appropriate or vernacularise FPIC or implement other norms, or to relate to external actors; how can Indigenous groups share lessons relating to these innovations; how is the acknowledgement of the reality of Indigenous legalities making its way into scholarly and political discourse, and into legal education?

Interlegalities

“Interlegality” is a term coined by sociologist Boaventura Sousa Santos to describe the polycentric landscape that exists as a consequence of laws developed at different scales (local, national, international), by different actors (states, Indigenous peoples, companies, others) that interact at the same time in the same space. This interlegality results from “contact zones” where different legal systems encounter one another with a variety of effects (domination, emancipation, violence, among others), and where there is “porosity” and feedback among these legal systems, and heterogeneity within them. But, for example, where Indigenous territorial connections and responsibilities clash with rights granted to corporations over resources, conflicts triggered as a consequence of indigenous protests against developments tend to be criminalized rather than treated as an issue of jurisdiction with respect to different legal orders. In most cases such conflicts are adjudicated by state tribunals and laws with little or no consideration given to indigenous legal systems and norms. Research questions on this topic include: how do outside legal systems affect Indigenous law-making and the abilities of Indigenous peoples to uphold their aspirations for autonomy; how can state law become more responsive to Indigenous law and institutions, including through education of officials, flexible procedures such as negotiation and hybrid institutions with mandates to draw on Indigenous law; what potential is there for Indigenous ontologies to effect a shift in the conceptualization, within dominant legalities, of some of the broader issues, such as environmental degradation and climate change, that confront us all?