tansi ninôtemik,
Most Latin American States have agreed to be under the jurisdiction of the Inter-American Court of Human Rights (IACHR) and bound by the American Convention on Human Rights (the Convention).[1] Canada, however, is not bound by the IACHR.[2] The IACHR is only able to issue recommendations to Canada based on violations of the American Declaration on the Rights and Duties of Man, the human rights declaration by which Canada agreed to abide.[3] In today’s post we will explore how the IACHR could strengthen Indigenous rights in Canada (if Canada were to join the Convention).
The IACHR has issued over a dozen judgements ordering states to acknowledge Indigenous peoples’ collective land rights.[4] Article 21 of the Convention protects private property and the IACHR interpreted this provision to include the protection of collective Indigenous property rights on traditional land.[5] In 2001, the Court ruled on its first issue concerning Indigenous collective rights; this case resulted in an order for Nicaragua to protect traditional Indigenous land from logging by devising legally recognizable deeds to enforce the collective property rights.[6]
The IACHR caselaw recognizes a state duty to protect the collective property rights of Indigenous communities.[7] In Nicaragua, Suriname, Paraguay, Ecuador, Colombia, Panama, Honduras, Brazil, and Argentina, the IACHR held that the state had failed in its duty to protect the collective land ownership rights of Indigenous peoples.[8] As we have previously discussed on this blog, Canada has often failed to protect Indigenous land and recognize Indigenous land rights. Should Canada join the IACHR, they might be held accountable internationally for unwanted development on Indigenous land.
Among their array of remedies, the IACHR provides for
(i) the restitution of land back to Indigenous peoples from private actors,
(ii) the reversal of decisions related to the exploitation and exploration of resources on Indigenous land,
(iii) legal devices to demarcate and protect Indigenous land such as collective deeds,
(iv) pecuniary compensation, and
(v) the regulation of the implementation of standards like free and informed consent.[9]
While the IACHR employs innovative and relatively strong remedies, 13 out of 14 cases from 2001 to 2023 were found to be in noncompliance.[10] Challenging situations, like armed conflict causing Indigenous people to be dispossessed of their land, however, has influenced the success rate of compliance with the IACHR’s judgements.[11]
As an international court, the IACHR could push Canada to properly implement UNDRIP if Canada were to subject themselves to the Court’s jurisdiction. We have focused on UNDRIP and the UN in previous blog posts, but there are limits to these human rights instruments. UNDRIP is soft law and the UN is only able to issue recommendations (rather than binding court orders) when there are violations of human rights treaties. If Canada were to join an international court like the IACHR, Indigenous people would have another avenue for remedial action outside of the Supreme Court of Canada.
What do you think about the IACHR? Would joining the IACHR result in strengthened land rights for Indigenous people in Canada?
Until next time,
The ReconciliACTION Team
Citations
[1] Margarette May Macaulay, “Canada and the Inter-American Human Rights System” (2022) RQDI 15 at 17.
[2] Ibid.
[3] Ibid.
[4] Tania Giovanna Vivas et al., “From terra nullius to Indigenous collective land rights: cases before the Inter-American Court of Human Rights” (2023) 19:1 AlterNative 101 at 101.
[5] Ibid at 102.
[6] Ibid.
[7] Ibid at 103.
[8] Ibid.
[9] Ibid at 108.
[10] Ibid.
[11] Ibid at 109.
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