I.
INTERNATIONAL AUTHORITIES AND PRECEDENTS
1.
Draft United Nations Declaration on the Rights of Indigenous Peoples
(UN 1994)
Article 44: "Nothing in this
Declaration may be construed as diminishing or extinguishing existing or
future rights indigenous peoples may have or acquire."
2.
C 169, Convention on Indigenous and Tribal People (ILO Convention
1989)
Article 35: "The application
of the provisions of this Convention shall not adversely affect rights and
benefits of the peoples concerned pursuant to other Conventions and
Recommendations, international instruments, treaties, or national laws,
awards, custom or agreements."
II.
DOMESTIC AUTHORITIES AND PRECEDENTS
3.
Canada
- Royal Commission on Aboriginal
Peoples, 2.2.6
“The Commission recommends that
the federal government establish a process for making new treaties to
replace the existing comprehensive claims policy, based on the following
principles:
(a) The blanket extinguishment of
Aboriginal land rights is not an option.”
Vol 2 Ch 4 s. 5
“The Commission cannot support
the extinguishment of Aboriginal rights, either blanket or partial. It seems
to us completely incompatible with the relationship between Aboriginal
peoples and the land. This relationship is fundamental to the Aboriginal
world view and sense of identity; to abdicate the responsibilities
associated with it would have deep spiritual and cultural implications.”
- Anishnaabe Government Agreement
in Principle, 5.5.9.1
“It is of fundamental
importance to maintain the amount and integrity of First Nation land, and
Canada agrees that, as a general principle, First Nation land shall not be
expropriated.”
5.5.10.1
“In the event of the
expropriation of First Nation land, Canada shall provide
compensation to the First
Nation.”
5.5.10.2
“The
compensation shall include alternate land of equal or greater size or of
comparable value. If the
alternate land is of less than comparable value, then additional
compensation shall be provided. The alternate land may be smaller than the
land being expropriated only if that does not result in the First Nation
having less land area than when it adopted gchi-naaknigewin.”
9.3
“Nothing
in the final Agreement shall affect the ability of the First Nation or
e-dbendaagzijig to enjoy or exercise any existing or future constitutional
rights of aboriginal peoples of Canada, or to benefit from any other
arrangements or agreements that may be applicable.”
- Nisga’a Agreement
“Canada
acknowledges that it is of fundamental importance to maintain the size and
integrity of Nisga'a Lands and Nisga'a Fee Simple Lands, and therefore, as a
general principle, estates or interests in Nisga'a Lands, or Nisga'a Fee
Simple Lands, will not be expropriated under federal legislation.”
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