Per Section 35 of the Canadian Constitution, which provides constitutional protection of indigenous and treaty rights, the Government of Canada has a fiduciary duty to the indigenous people of Canada. This duty is compounded by contractual settlement agreement obligations and international laws. Sadly, Inuit Elders who have chronic health needs are removed and relocated to distant non-Inuit communities and institutions for long-term palliative and hospice care. There is an obvious systemic problem where governments with limited funding, in harsh and complex environs, are unable to provide the requisite health care, housing, and other social services and infrastructure Inuit communities and people direly need. Reminiscent of subjugation and oppression, these socio-economic failings show that vestiges of colonialism still exist.
This essay does not intend to appropriate the voice of Inuit people. It seeks to incorporate the views of Inuit people from their documents and external sources to describe the tragic irony that the system of Inuit Elder long-term residential care represents. It is only they who can truly judge, in the wake of Residential Schools and the Truth and Reconciliation Commission, how well they have progressed or achieved their goals of self-determination and self-governance.
This essay examines the implications of Canada’s Inuit aging policy and its impact on Canadian Inuit society. The world is aging as a result of a decline in both birth and death rates; in other words, low birth rates and increased longevity. Important determinative factors for birth and death rates include technology, healthcare, and education levels.1
Inuit colonization and residential school experiences, along with continuing experiences of racism, have created a significant mistrust of mainstream institutions. The healthcare system is included in the mistrust. Too many Inuit seniors need to travel for care that is not offered in their communities, which “are rural, remote, and in the [Arctic], with limited access to medical technology, equipment, supplies, and medication.”2 Medical travel is physically, emotionally, and financially challenging for Inuit seniors. Distant southern hospitals often send frail elder Inuit patients home to their communities without checking if there are appropriate support services or home accommodations in place. Infirm Inuit elders in need of extended permanent care who do not have sufficient facilities in their communities need to be moved to distant southern Canadian cities, away from their family, culture, and land.
Federal policymakers must recognize the double whammy of repeat trauma that Inuit residential school survivors, who are now seniors, face in the final stage of their lives. Culturally revered elders who deserve honor, respect, and peace in their final years should not be displaced. Tragically, though, Inuit elders seeking peace and dignity in their later years will likely be pulled from their families and sent to southern Canada. There, they will be housed in facilities where the language, food, and people are strange and traumatic.3 In response, Government must meet the need for Inuit senior services by investing in facilities,4 programs, and services to be managed by the Inuit in their own communities. Local Inuit elder care will help preserve their culture. Seniors are the backbone and link to past Inuit traditions and language.5 Community-based resources prevent the needless move of Inuit elders from their families to locations thousands of miles away from their community,6 imprisoned in distant cultural isolation from their loved ones.
The situation is uniquely dire for Inuit seniors. In contrast to the generally more positive health trend for non-Inuit seniors, “the health needs of [Inuit] seniors are magnified by determinants of health such as poverty, poor housing, racism, language barriers, and cultural differences.”7
History of Victimization and Poor Health
Sadly, frail Inuit seniors need to travel and relocate to distant southern areas for anything beyond the most basic care, causing disruption to their lives and a great cost to governments. Because many Inuit seniors do not have the same health resources available as southern Canadians, their health conditions can become more severe, increasing the amount of care they need. To receive this care, seniors must leave their communities and live out their lives in unsafe, culturally insensitive institutions, often thousands of miles or more from their communities and families. “The very small, isolated, and northern communities where Inuit live create a unique set of circumstances and health care challenges that affect Inuit seniors’ ability to remain in their homes.”8 This issue is more significant given the fact that “[o]verall Inuit seniors have poorer health than non-Inuit seniors, with higher rates of chronic diseases and other conditions.”9
Inuit seniors confront difficulty maintaining the nutrition needed to manage chronic conditions. Traditional cultural foods, such as wild meat, fish, and berries are very important to the diet of seniors. Inuit communities have moved from a diet comprised largely of nutrient-dense wild foods to predominantly Western food, which likely contributes to a higher incidence of disease. Many Inuit seniors struggle just to eat because they cannot afford to buy healthy foods (especially in hyper-expensive remote northern communities). The battle to stay healthy intensifies because eating less expensive processed foods, high in fat and sugar, leads to obesity.10
Many Inuit seniors suffer from poorer physical and mental health due to the disruption of their way of life caused by colonization, particularly the intergenerational effects and trauma of the residential school experience.11 It is “described as a form of post-traumatic stress disorder for whole communities and cultures [which] left many Inuit seniors socially isolated.”12 Family members whose own childhoods were dysfunctional are often reluctant to care for their parents. “[T]hey have their own challenges, including mental health issues, addictions, poverty, and family violence.”13 The lack of family support is concerning, as Inuit seniors often do not understand their health conditions or prescribed treatments.14 Literacy and language barriers are major issues of a rapidly transitioned post-colonization anglicized Inuit homeland.15 Inuit seniors are also subject to elder abuse.16 For example, seniors who receive Old Age Security may be the only family member with income.17 Sharing is a core value in Inuit culture. Inuit seniors share what they have (housing, food, money) with family members, even if unable to care for their own needs.
Housing challenges compound the mental and physical difficulties caused by the aforementioned distressing travel to receive care and complicated family dynamics. Inuit seniors with complex health needs often live in regions where it is more challenging and expensive to provide care. They prefer to live in their home communities or other Inuit Hamlets, where they can be connected to their culture.
The severe shortage of housing in the North contributes to the senior health crisis, and “what is available is often in poor condition.”18 The overcrowded condition Inuit seniors may live in19 adds significant stress. The stress combined with a nutrient-poor diet leaves them intensely vulnerable to disease.20 As the number of older Inuit continues to grow, researchers predict there will be greater challenges in providing healthcare services. “Although age 65 is typically considered the start of senior years, some organizations and health care providers offer seniors’ services to Inuit people age 55 and older, largely because statistics show an earlier onset of chronic conditions and a lower life expectancy compared to other Canadians.”21
History of the Health Crisis
The Inuit health crisis has been prevalent since their colonization, which saw forced removal from their lands into settlements, the irreparable disruption of the Inuit natural cycle of traditional life, the removal of their children who were sent to distant state or church run residential schools, and many traumas (even enduring a non-consensual government slaughter of their sled dog teams).22 Is it any wonder that health quickly escalated into a pervasive issue for the Inuit society? The United Nations Department of Economic and Social Affairs recognized the factors that compound Indigenous health access issues in 2016:
Indigenous peoples in North America have long experienced lower health status when compared with the rest of the population. Lower life expectancy and the disproportionate disease burden exist because of inadequate education, disproportionate poverty, discrimination in the delivery of health services, and cultural differences. These are broad quality of life issues rooted in economic adversity and poor social conditions.23
Colonization placed Inuit in a stark, harsh, and remote environ, stripped of their working dogs and tools, deprived of their families and with limited means to access their traditional foods, forced to consume hyperinflated alternate European staple foods with a limited budget while struggling to access paid employment.
The history of poor health began with the British mishandling of indigenous groups. After the British conquest of North America in 1763, the British Government began a process of entrenching control over its domain. Following the American War of Independence, the British Government rapidly began the process of settling its colonial realm and enabling colonial governance within its remaining North American territory.24 Initially, the British-directed colonial government approach respecting both the aboriginals and the pre-existing adversarial French Acadian settlers was assimilation and, in the case of the latter, mass expulsion.25
On March 11, 1867, the United States purchased Alaska from Russia for $7.2 million, a purchase which did not involve consultation with Alaska’s vast indigenous population.26 Fearing the growing power, economic might, and influence of its rival, the British government reacted forcefully. It responded by approving the Confederation of Canada as a constitutional monarchy under the British North America Act.27 Under this new colonial governance structure, the British monarch remained the formal head of state in Canada, with a highly centralized balance of power resting with the federal government to maintain control of the vast and underpopulated nation.
Facing the resilience of indigenous traditions, Canada’s first Prime Minister Sir John A. Macdonald commissioned Nicholas Flood Davin, a lawyer and politician, to go to Washington, D.C., in 1879 to study how the United States was handling the “Aboriginal issue.”28 At that time, the United States had a policy of aggressive assimilation and civilization of Native Americans. As anthropologist Derek G. Smith noted, this policy “had been formulated in the post-Civil War period by President Ulysses S. Grant’s administration . . . and was passed into law by Congress in early 1869.”29 The key to this policy, Canada quickly learned, was “a system of industrial schools where religious instruction and skills training would help the Native Americans catch up with the demands of Western society.”30
Colonial governments, to this day entrenched in their own professed sovereignty, still “struggle with how to accommodate properly the needs and claims [rights] of native/indigenous peoples within their jurisdictions whose presence long predates European conquest and occupation.”31 Renowned scholar Felix Hoehn writes that
For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”32
In 1982, Canada emancipated its constitution from Great Britain. The new constitution (which replaced the 1867 British North America Act creating Canada) included a Charter of Rights and Freedoms. Section 35 of the Constitution Act provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada.33
It is important to understand that Section 35 recognizes Aboriginal rights, but did not create them—Aboriginal rights have existed before Section 35.
Section 35 of the Constitution Act states:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.34
Furthermore, on a complimentary basis but not overriding the Canadian Constitution Section 35 on aboriginal rights, the Charter of Rights and Freedoms Section 26 provides:
“[O]ther rights or freedoms that pertain to the aboriginal peoples of Canada” indicates that the rights included in section 25 are broader than the ‘aboriginal rights’ and ‘treaty rights’ recognized and affirmed by section 35 of the Constitution Act, 1982: This latter phrase indicates that the rights included in section 25 are broader than those in section 35, and may include statutory rights.35
In 1991, Canada’s Royal Commission on Aboriginal Peoples (RCAP) was established by Order in Council. It submitted the Report of the Royal Commission on Aboriginal Peoples in October 1996. Its mandate was “to investigate and propose solutions to the challenges affecting the relationship between Aboriginal peoples (First Nations, Inuit, Métis), the Canadian government and Canadian society as a whole.”36 In the report, recommendations were made “affecting virtually every aspect of Aboriginal people’s lives. We have sought to grapple with entrenched economic and social problems in Aboriginal communities while also seeking to transform the relationship between Aboriginal nations and Canadian governments.”37 As a result of these recommendations, in 2015 the Canadian government formed the Truth and Reconciliation Commission of Canada, whose ninety-four calls to action have become an ambitious blueprint for reconciliation between Aboriginal and non-Aboriginal Canadians.38
If only we could confidently speak about this legacy of colonialism in the past tense. For example, the latest statistics show that the percentage of inmates in Canadian prisons that are Aboriginal has reached a record high of over 25%. Correctional Investigator of Canada, Howard Sapers attributed the increasing numbers to poverty, colonialism and the effects of the residential school system as reasons why alcoholism and other problems bring so many Aboriginal people in conflict with the justice system. Another example of colonialism continuing to operate in Canada is the doctrine of discovery, which is a fundamental part of the Canadian law of Aboriginal title. Faced with the daunting scale of the task of reconciliation, it was appropriate for the TRC to recommend changing many laws, norms and practices of Canadian society. The TRC defined reconciliation as “an ongoing process of establishing and maintaining respectful relationships.”39
Recognizing the plight of the world’s indigenous people, the United Nations, after lengthy consultations and review, announced in September, 2007 that “The Declaration on the Rights of Indigenous Peoples (the Declaration) affirms the minimum standards for the survival, dignity, security and well-being of Indigenous peoples worldwide and enshrines Indigenous peoples’ right to be different.”40 Yet the four nations with the largest indigenous populations (the U.S., Canada, New Zealand, and Australia)41 initially voted against the United Nations Declaration on the Rights of Indigenous Peoples on September 13, 2007, while 144 nations approved the declaration.42 The four nations now subsequently support the declaration and have thus affirmed that
The Declaration addresses both individual and collective rights, cultural rights and identity, rights to education, health, employment, language and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own visions of economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and Indigenous Peoples.43
It would seem clear from international laws with respect to the rights of indigenous people, and per Canada’s own Aboriginal Commission and Truth and Reconciliation reports, that the Canadian government recognizes its obligation to provide its indigenous people with the opportunities and quality of life the rest of the citizens of the nation enjoy. Demographic data show that Canada is failing in this regard and there is a fiduciary obligation44 to remedy and reconcile all the grievous social, economic, and health issues that have been described above which impact the Indigenous population, particularly the Inuit and their vast arctic environ.
First of all, Inuit elders must not be overlooked nor dishonored. They are a people who have been hauled off the land by the colonial government. Driving them from their traditional, fluid way of life, spending the seasons of the year where nature would provide best for them to alternatively subsist in cramped, congested, and pauper-like dwellings, is cruel. These dwellings are far north and intimidating; they are concentrated in twenty-five different communities accessible only by air or by sea in short summer seasons when the sea-ice has cleared, and they are ruled by a southern-imposed legal system and the foreign English language. Now in their golden years, when their life’s wisdom is most cherished and when their families and communities are fundamentally challenged, the same elders who either had children taken from them and sent to harsh distant residential schools or experienced that displacement themselves now ironically face the same jeopardy in their final moments: having to be transported thousands of miles from their family, home, and land to residential elder care facilities in the south. These facilities are staffed predominantly by non-Inuit who do not speak Inuit, and the food is a non-traditional diet that the elders are not accustomed to. This colonial legacy is unacceptable and a breach of Canada’s obligations to the indigenous people of our land and their elders.
This brief summary cannot do justice to the body of Canada’s domestic common law, statutes, traditional aboriginal laws,45 and the United Nations conventions applicable to indigenous people. The purpose has been to awaken the reader to the prevailing social, economic, and health issues facing Canada’s indigenous people.
- ↑ 1 Economic development is associated with greater longevity in high-income countries, due to a variety of factors including: “the progress of medical technology, improved access to and availability of medical services, better diet and nutrition, rise in the standard of living in various aspects of life such as housing and clothing, reduced episodes of infection, and increased level of education.” Shiro Horiuchi, Major Causes of the Rapid Longevity Extension in Postwar Japan, 9 Japanese J. Population 162, 162 (2011). See also David Cutler, Angus Deaton & Adriana Lleras-Muney, The Determinants of Mortality, 20 J. Econ. Persps. 97, 115 (2006).
- ↑ 2
Health Council of Canada, Canada’s Most Vulnerable: Improving Health Care For First Nations, Inuit, And Metis Seniors 11 (2013). For an example of how Inuit struggle to obtain funding necessary to build long-term care facilities, see Jane Sponagle, Nunavut Struggles to Care for Elders Closer to Home, CBC News (June 5, 2017), https://www.cbc.ca/news/canada/north/nunavut-seniors-plan-1.4145757 [https://perma.cc/8JZK-5XCX].
- ↑ 3
Health Council of Canada, supra note 2, at 17. Shawn Renee Hordyk et al., Inuit interpreters Engaged in End-of-Life Care in Nunavik, Northern Quebec, 76 Int’l J. Circumpolar Health 1, 1 (2017) (“Inuit interpreters are key players in end-of-life (EOL) care for Nunavik patients and families. This emotionally intensive work requires expertise in French, English and Inuit dialects to negotiate linguistic and cultural challenges. Cultural differences among medical institutions and Inuit communities can lead to value conflicts and moral dilemmas as interpreters navigate how best to transmit messages of care at EOL”).
- ↑ 4
For an example of where government investment is needed, see John Van Dusen, Overhaul of Elder Care Needed as Dementia Rates Set to Skyrocket in Nunavut: Report, CBC News (May 17, 2016), https://www.cbc.ca/news/canada/north/nunavut-needs-dementia-care-health-report-1.3494772 [https://perma.cc/TRP9-JBUG].
- ↑ 5
Health Council of Canada, supra note 2, at 8.
- ↑ 6
The Inuit, prior to colonization and forced settlement into Hamlets from their nomadic lifestyle, “managed to maintain social order without the existence of a formal system of legal rules. The moral and social principles developed by the elders interviewed in the book were firmly rooted in a cosmological framework, which in many respects still represented the worldview of the Inummariit before they settled in the contemporary communities.” 2 Mariano Aupilaarjuk, Marie Tulimaaq, Akisu Joamie, Emile Imaruittaq, and Lucassie Nutaraaluk, Inuit Laws: Tirigusuusit, Piqujait, and Maligait at X (Jarich Oosten et al. eds., 2d ed. 2017).
- ↑ 7
Health Council of Canada, supra note 2, at 8.
- ↑ 8
Id. at 5.
- ↑ 9
Id. at 7.
- ↑ 10
- ↑ 11
Id. at 5.
- ↑ 12
Id. at 8.
- ↑ 13
Id. See also Felix Hoehn, Back to the Future: Reconciliation and Indigenous Sovereignty After Tsilhqot’in, 67 U.N.B.L.J. 109, 112 (2016). See generally Michael J. Kral, Postcolonial Suicide Among Inuit in Arctic Canada, 36 Culture Med. & Psychiatry 306 (2012).
- ↑ 14
Health Council of Canada, supra note 2, at 8.
- ↑ 15
Id. For a current example of Inuit elders facing language barriers in communicating health needs, see Elyse Skura, Unilingual Inuit in Ottawa Seniors’ Homes Need Translators, Argues Nunavut MLA, CBC News (Oct. 24, 2016), https://www.cbc.ca/news/canada/north/unilingual-inuit-elders-translation-1.3817348 [https://perma.cc/BDY8-ERRJ].
- ↑ 16
Elder abuse is defined for the purpose of this paper as financial, emotional, and physical neglect.
- ↑ 17
Health Council of Canada, supra note 2, at 8. See generally Bonita Beulah Beatty & Loleen Berdahl, Health Care and Aboriginal Seniors in Urban Canada: Helping a Neglected Class, 2 Int’l Indigenous Pol’y J. 1, 9 (2011).
- ↑ 18
Health Council of Canada, supra note 2, at 7.
- ↑ 19
Id. at 8. See also Nat’l Collaborating Ctr. For Aboriginal Health, Housing as A Social Determinant of First Nations, Inuit and Métis Health 3 (2017) (“According to the most recent data, ‘nearly 4 in 10 (39%) Inuit living in Inuit Nunangat lived in crowded homes, about 10 times the proportion of non-Indigenous people (4%) nationally’ (Statistics Canada, 2015a, p. 14). One third of all Inuit households in northern regions are in need of major repairs, such as plumbing and electricity, compared to the national rate of 7%, and one third are in core housing need compared to 12.5% of Canadian households (CMHC, 2015). Much of the housing for Inuit in the northern regions is social housing. In 2000, social housing accounted for 80% of units in Nunavik; while in Nunavut, as of 2006 almost 54% of Nunanavummiut lived in Public Housing Program units and only 7% of Nunavut’s dwellings were privately owned (Knotsch & Kinnon, 2011). In 2014, the Inuit Tapiriit Kanatami (ITK) estimated that 15% of Nunavut’s population was on a waiting list for public housing, and approximately 3300 houses were currently needed to meet the housing shortage (Knotsch & Kinnon, 2011). As a result of the housing crisis, approximately ‘one-fifth of Inuit homes reported providing shelter to the homeless’ (Minich et al, 2011, p. 526). In the Inuvialuit region, 34% of households live in public housing, however, in some Inuit communities, more than half of households live in social housing (Inuvialuit Regional Corporation, 2016).”)
- ↑ 20
Health Council of Canada, supra note 2, at 7. See also Nat’l Collaborating Ctr. For Aboriginal Health, supra note 19, at 14.
- ↑ 21
Health Council of Canada, supra note 2, at 7.
- ↑ 22
Dog Slaughter, Makivik Corp., https://www.makivik.org/dog-slaughter/ [https://perma.cc/6HN7-9EJN] (last visited June 9, 2020).
- ↑ 23
U.N. Dep’t of Econ & Soc. Affairs, The State of The World’s Indigenous Peoples: Indigenous Peoples’ Access To Health Services, at 127, U.N. Sales No. 15.IV.5 (2016).
- ↑ 24
Now Canada, with the exception of two small islands, St. Pierre and Miquelon, in the midst of the mouth of the Gulf of St. Lawrence which remained with France, per the Treaty of Paris (1763).
- ↑ 25
Stephen J. Hornsby et al., Explanatory Maps of Saint Croix & Acadia, Canadian-American Ctr. U. Me. (May 2005), https://umaine.edu/canam/publications/st-croix/acadian-deportation-migration-resettlement/ [https://perma.cc/GK7Q-78WA] (“Acadians were shipped to many points around the Atlantic. Large numbers were deported to the continental colonies, others to France. Some managed to escape to New France (Quebec). A handful arrived in the Upper Saint John Valley. Many moved several times; a great number left the American colonies at the end of the war and returned to Nova Scotia; many of those in France moved to the French Caribbean or to Louisiana, where they formed the basis of the Cajun population.”).
- ↑ 26
Jesse Greenspan, Why the Purchase of Alaska Was Far From ‘Folly’, History (Mar. 24, 2020), https://www.history.com/news/why-the-purchase-of-alaska-was-far-from-folly [https://perma.cc/TF3M-7XCX].
- ↑ 27
British North America Act 1867, 30 & 31 Vict. c. 3 (UK).
- ↑ 28
Facing History and Ourselves, Stolen Lives: The indigenous Peoples of Canada and the Indian Residential Schools 40–41 (2015).
- ↑ 29
- ↑ 30
- ↑ 31
Conference, Ronald Kakungulu, The United Nations Declaration of the Rights of Indigenous Peoples: A New Dawn for Indigenous Peoples Rights?, Cornell L. Sch. 18 (2009).
- ↑ 32
Hoehn, supra note 13, at 112.
- ↑ 33
The section, while within the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms. Section 35 of The Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, but does not define them. “What Aboriginal rights include has been the topic of much debate and discussion, and they have been defined over time through Supreme Court cases such as R. v. Calder and R. v. Sparrow. Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties.” Erin Hanson, Aboriginal Rights, Indigenous Found., https://indigenousfoundations.arts.ubc.ca/aboriginal_rights/ (last visited Aug. 16, 2020) [https://perma.cc/7739-VMT7]; Erin Hanson, Constitution Act, 1982 Section 35, Indigenous Found., https://indigenousfoundations.arts.ubc.ca/constitution_act_1982_section_35/ (last visited Aug. 16, 2020) [https://perma.cc/J39U-PXYC].
- ↑ 34
“Aboriginal rights are collective rights which flow from Aboriginal peoples’ continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact.” Aboriginal Rights, supra note 33; Constitution Act, supra note 33.
- ↑ 35
Canadian Charter of Rights and Freedoms, s 25, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11 (U.K.).
- ↑ 36
Government of Canada, Royal Commission on Aboriginal Peoples, https://www.bac-lac.gc.ca/eng/discover/aboriginal-heritage/royal-commission-aboriginal-peoples/Pages/introduction.aspx (last visited Aug. 16, 2020) [https://perma.cc/8HLM-RRXW].
- ↑ 37
Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples Volume 5 – Renewal: A Twenty Year Commitment, 2006, at 1 (Can.).
- ↑ 38
Id.; Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action, 2015 (Can.).
- ↑ 39
Hoehn, supra note 13, at 112. “This is a multi-faceted process, and includes apologies, reparations, and actions that demonstrate a true change in society. Indigenous laws and governance systems should be revitalized, and ‘as non-Aboriginal Canadians increasingly come to understand Indigenous history within Canada, and to recognize and respect Indigenous approaches to establishing and maintaining respectful relationships, Canadians can work together to forge a new covenant of reconciliation.’” Id. at 112–13.
- ↑ 40
Australia Human Rights Commission, UN Declaration on the Rights of Indigenous Peoples https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/un-declaration-rights [https://perma.cc/4YS6-C6UC] (last visited Aug. 16, 2020).
- ↑ 41
These four states represent almost half of the world’s indigenous peoples. Kakungulu, supra note 31, at 1–2.
- ↑ 42
Id. at 6 (“All these States share one thing in common; they have a history of using the now discredited doctrines of discovery and terra nullis to grab indigenous people’s land”).
- ↑ 43
Press Release, United Nations, General Assembly to Take Action on Declaration on Indigenous Rights (Sep. 11, 2007).
- ↑ 44
“The Crown’s fiduciary interest, as currently understood, reflects the hierarchical relationship between the Crown and Aboriginal peoples that is at the heart of the doctrine of Aboriginal title. This fiduciary interest was first articulated by the Supreme Court in Guerin. The Crown had breached its fiduciary obligation to the Musqueam Indian Band when it leased surrendered reserve land to a third party on terms less favourable to the Band than the terms approved by the Band upon surrender of the lands to the Crown. Dickson stated that the fiduciary relationship had its roots in the concept of Aboriginal title, “but also depends on the additional proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.” He said the Crown first “took this responsibility upon itself” in the Royal Proclamation of 1763 and that it was still recognized in the surrender provisions of the Indian Act.” Hoehn, supra note 13, at 112; Guerin v The Queen,  2 SCR 335 (Can.).
- ↑ 45
See Aboriginal Rights, supra note 33. “Aboriginal rights are collective rights which flow from Aboriginal peoples’ continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact.” Id.