1.1 Implementing UNDRIP through International Law and Covenants
The Three Sisters offer us a new metaphor for an emerging relationship between [I]ndigenous knowledge and Western science, both of which are rooted in the earth. I think of the corn as traditional ecological knowledge, the physical and spiritual framework that can guide the curious bean of science, which twines like a double helix. The squash creates the ethical habitat for coexistence and mutual flourishing. I envision a time when the intellectual monoculture of science will be replaced with a polyculture of complementary knowledges. And so all may be fed.
The traditional ecological knowledge of [I]ndigenous harvesters is rich in prescriptions for sustainability. They are found in Native science and philosophy, in lifeways and practices, but most of all in stories, the ones that are told to help restore balance, to locate ourselves once again in the circle….Footnote 1
For thousands of years, Indigenous Peoples have been living with and learning from Mother Earth, preserving knowledge of traditional sustainability sciences, practices, laws, and stories that foster respect for the inter-dependent and gift–reciprocity relationships found among living beings and the environments they inhabit.Footnote 2 Now, after centuries of diminishing Indigenous ways of life while enabling unsustainable dominance and exploitation, in some countries education, science and political will may be slowly turning to accept the Indigenous ways of being as an inter-dependent and symbiotic way for humans and other living beings to continue flourishing on this planet. Through a convergence of Indigenous knowledge and legal traditions with the necessary sustainable development agendas and commitments being adopted worldwide, important new pathways become possible.Footnote 3
Such transformations were foreseen by writers, philosophers, naturalists, scientists, and ecologists who have argued that current economies need to evolve past the desire to be conquerors and controllers of nature so as to respect the laws of, and become part of, living (biotic) communities.Footnote 4 This contrast between destructive approaches to development and Indigenous reciprocity and gratitude is pertinently detailed by Robin Wall Kimmerer, whose words of wisdom open this chapter. Kimmerer is both a member of the Potawatomi Nation and a distinguished Professor of Environmental and Forest Biology at the State University of New York College of Environmental Science and Forestry. Her works bring together her two identities – her Indigenous heritage and its culture, and her scientific method and knowledge harnessed through her role in academia – to explain how traditional wisdom has equal value to science, and can be twined to form a more holistic understanding of the world.Footnote 5
This harmonization of worldviews is especially critical as the world faces record-breaking natural disasters, global food and resource shortages, and human rights violations globally. In the age of the Anthropocene, far-reaching economic, technological, societal, and environmental change requires collaborative and coordinated efforts to foster sustainability, for a good quality of life for future generations. Particularly as the impacts, and advancements, from the recent COVID-19 pandemic become more apparent, the vitality of the economy, society, and environment is even more contingent on expanding current knowledge and legal systems to learn from Indigenous ways of knowing that have stewarded global ecosystems for millennia.Footnote 6 Widely ratified agendas, such as the 2015 United Nations Sustainable Development Goals (SDGs) for 2030Footnote 7 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),Footnote 8 help provide the framework necessary for tackling these complex, inter-dependent problems, to create wide-ranging, deep-rooted solutions. Countries and Nations adopting these declarations have solemnly committed to undertake crucial domestic actions to advance sustainability, development, Indigenous rights and justice, and to prioritize international cooperation and assistance to fulfil their commitments. However, when the genuine efforts of many continue to fall short of delivering the desired results, treaties that engage Indigenous Parties may help to secure the systems that are needed, complementing and augmenting such principles and commitments.
Are collaborations, or even amalgamations of Indigenous and non-Indigenous worlds of knowledge necessary to secure a sustainable future for all living beings? This volume represents one endeavour to provide answers in the affirmative. Specifically, the guidance and wisdom of Indigenous knowledge found in treaties is given prominence, by demonstrating that these negotiated covenants have the potential to provide the foundation for sustainable development to expand on present international and domestic legal regimes. This analysis is anchored within the principles and guidance of the 17 SDGs and the UNDRIP, alongside context and examples from countries of the opportunities world on how Indigenous knowledge and treaties are already creating to inform, sustainable futures for all. Comparative legal research methods uncover whether and how these accords respond to sustainable development objectives across key social, environmental, and economic challenges, in this book.
1.2 Outline
This volume is structured in five parts, each discussing different aspects of understanding and implementing the various international, trans-national, and Nation-to-Nation treaties in a manner that can advance sustainable development and affirm Indigenous knowledge and rights in selected legal systems.
Following this introductory note in Part I, the foundations are laid for the rest of the volume in Part II, which explores international conventions enshrining basic tenets of international Indigenous policy, rights, and law. Notably, this includes the principles and commitments reflected in the UNDRIP and the UN SDGs, as well as the rights, duties, and obligations reflected in the Indigenous and Tribal Peoples Convention, 1989 (ILO 169) and in Nation-to-Nation and Nation-to-State trade as the prerequisite for Indigenous Nation-building. The theoretical elements of leveraging treaty and international law for sustainable development, together with its implications, are also defined and provided in this part.
Chapter 2 provides analysis of the international legal framework governing Indigenous Peoples’ rights, focusing on treaty obligations from ILO 169, and the principles reflected in the UNDRIP. It explores the fundamental principle of free, prior, and informed consent (FPIC) as reflected in these instruments and its crucial role in sustainable development. Examining ILO 169, the chapter discusses guidelines related to self-determination, land rights, cultural preservation, and State obligations to consult and cooperate with Indigenous Peoples, providing selected examples in the context of Indigenous communities in Canada. Analysing the UNDRIP, the chapter offers an exploration of self-determination, land rights, cultural heritage, and States’ duties to obtain FPIC. Emphasizing the significance of consent as a cornerstone of efforts to link Indigenous rights and sustainable development, the chapter concludes by acknowledging the complexities involved in its practical application. By delving into substantive and procedural aspects of international law, this chapter discusses the role of international legal norms in promoting Indigenous rights and facilitating sustainable development.
Chapter 3 explores the journey from principles to the practical implementation of sustainable development, in the context of advancing the global SDGs. It begins by examining the foundational principles of international public policy and law that guide sustainable development efforts by examining the history and motivation behind adopting a global set of goals and targets for sustainable development by 2030. Then, the chapter focuses on Indigenous Peoples roles in advancing the SDGs, acknowledging the historical disparities faced by these communities and how treaties have the potential to foster or frustrate the achievement of these goals and targets. Canadian experiences are explored, with a focus on whether and how the modern treaty system can provide a tangible improvement in furthering sustainable development. The chapter then delves into guidelines for sustainable resource management and Indigenous development within the SDG framework, emphasizing inclusive approaches and participatory decision-making. By bridging principles with practical strategies, this chapter underscores the importance of integrating Indigenous knowledge, fostering partnerships, and implementing the SDGs to achieve sustainable development which respects Indigenous rights and aspirations.
Chapter 4 details the vital potential for Indigenous trade and investment to help, rather than hinder, sustainable development efforts. Firstly, it discusses the prerequisites for Indigenous trade, emphasizing a Nation-building approaches centred on the significance of robust Tribal infrastructure. The chapter then addresses the barriers hindering Indigenous inter-Tribal trade, including state or provincial level interference in Tribal jurisdiction, poor Tribal governance, the lack of Indigenous foreign trade zones, the exclusion of Indigenous Traditional Knowledge (TK) from intellectual property (IP) regimes, and historical challenges in trade financing, as well as other factors such as Canada’s failure to honour its Jay Treaty obligations. Additionally, the chapter explores Indigenous trade and commerce engagements with non-Indigenous enterprises, both with and without federal permission, highlighting the implications, challenges, and opportunities involved. By examining these aspects, the chapter highlights the need to empower Indigenous Nations through trade and investment, fostering economic opportunities while respecting cultural heritage, and working towards sustainable development.
In Part III, there is an exploration of ways in which treaty implementation can address sustainable development, by targeting key sectors and bodies of legal discourse. This section spans contexts and examples that encompass TK within IP regimes, the intersection of treaty law and renewable resource management and extraction, the intricate relationships and importance of protecting Indigenous cultural heritage, and the role of consent, law, and regulation in the context of extractive, non-renewable industries.
In Chapter 5, the complex relationship between TK and IP concerning genetic resources is explored. First, with an examination into the challenges of distinguishing TK from IP and a presentation of the Munzer Model as a potential compromise for addressing TK within the IP framework. The chapter then delves into national efforts to protect and recognize TK, with examples from United States and Canadian cases, including the Cowichan Sweater example from the 2010 Vancouver Olympic Winter Games. Furthermore, the evolving landscape of TK in international trade agreements is detailed, highlighting the increasing recognition of TK, and respect for TK as a ‘new norm’. By analysing historic and current developments in TK recognition, this chapter emphasizes the need for a balanced approach that respects the unique nature of TK while navigating the complexities of IP frameworks. It underscores the importance of preserving and utilizing TK and genetic resources for the benefit of Indigenous communities and for advancing sustainable development.
Chapter 6 then considers the complexities of the intersection between renewable resources, sustainable development, and Indigenous treaty law. It begins by examining international guidance for renewable energy sources and their role in achieving sustainability objectives. This chapter then delves into the principles and rules governing sustainable forestry practices, fisheries management, and energy development. It highlights the importance of international agreements, protocols, and treaties in promoting responsible resource management, conservation, and the recognition of Indigenous rights and knowledge. By considering these principles and rules within the context of Indigenous treaty law, it highlights the need for harmonious and inclusive approaches to renewable resource use in the age of sustainable development. It underlines the significance of collaboration, respect for Indigenous knowledge, and the integration of sustainability principles to ensure a balanced and equitable relationship between renewable resources, Indigenous rights, and sustainable development.
Subsequently, in Chapter 7, the intricate relationship between Indigenous cultural heritage and Indigenous rights is discussed, not only in the context of advancing sustainable development but especially with a focus on enabling the well-being of Indigenous communities. It begins by analysing the guidance provided by the UNDRIP and ILO 169 regarding the preservation and protection of cultural heritage, particularly in the context of the triple planetary crises: climate change, biodiversity loss, and degradation of natural systems. Additionally, it emphasizes the importance of resilient and vibrant cultural heritage for achieving sustainable development. The chapter highlights the challenges posed by this triple planetary crises to Indigenous cultural heritage and emphasizes the need for resilience and safeguarding measures. It further examines the treatment of cultural heritage in Indigenous treaties, delving into legal and historical perspectives in the United States’ jurisprudence and political landscape, then addresses the ability of Canadian modern treaties to foster or frustrate the ability to safeguard cultural heritage. By considering these aspects, the chapter underscores the significance of recognizing and preserving Indigenous cultural heritage, highlighting the need for enhanced legal frameworks, collaborative approaches, and the integration of Indigenous rights and knowledge to ensure the continuity and vitality of cultural heritage for present and future generations.
Chapter 8 concludes Part III with an exploration of the complex relationship between extractive industries, sustainable development, and Indigenous treaty law. It begins by examining the international law guidance available for extractive industries, analysing frameworks and principles that promote responsible and sustainable practices in resource extraction while considering the social, economic, and environmental dimensions. This chapter focuses on the specific challenges of oil and gas exploration, highlighting the impacts on Indigenous communities and emphasizing the importance of meaningful consultation, consent, and fair benefit-sharing in alignment with Indigenous treaty rights, including Indigenous decisions to withhold consent and focus on development of alternatives to fossil fuels. Furthermore, it surveys the mining sector’s implications for sustainable development, considering the social, economic, and environmental aspects and emphasizing the role of Indigenous treaty law in ensuring responsible practices, equitable resource distribution, and the protection of Indigenous rights and lands. In conclusion, the chapter emphasizes the need for a respect of Indigenous rights, integrated Indigenous perspectives and consent, and promotes sustainable practices to foster collaboration and achieve sustainable development that enables the well-being and self-determination of Indigenous Peoples.
Part IV presents case studies of treaty implementation to identify possible solutions that could advance sustainable development and Indigenous rights through treaties. This provides comparative insights from different domestic experiences and traditions, identifying areas of commonality and difference in efforts to activate domestic institutions in the interest of intergenerational equity. This section highlights histories, cases, and innovations from Canada, the United States, New Zealand, Chile, Bolivia, Bangladesh and Mexico to contextualize current regional trends and innovations.
First, a case study of Canada is presented in Chapter 9, examining the intricate relationship between Indigenous Peoples and the developments related to British, then Canadian, governance. It begins by exploring the historical and legal context of Indigenous Peoples in Canada, tracing the impact of colonization and the recognition of Indigenous rights. The potential for affirming these rights through treaties and trade agreements is then investigated, highlighting recognition and protection of Indigenous treaty rights, together with the opportunities and challenges presented by trade agreements for Indigenous economic development and self-determination. The Canadian government’s efforts to domestically enforce the UNDRIP and the intersection of Canadian treaties with trade agreements are then analysed. This chapter emphasizes the importance of ongoing dialogue, collaboration, and the implementation of measures aligned with UNDRIP principles to foster the recognition, empowerment, and well-being of Indigenous Peoples within the Canadian context.
Chapter 10 delves into the United States’ treatment of Indigenous Peoples, with a specific focus on Indigenous sovereignty and economic rights. It begins with a brief discussion of the historical context and treatment of Indigenous Peoples in the legal framework, with an emphasis on the series of cases dubbed the Marshall Trilogy. This includes the struggles and advancements in recognizing Tribal Nation sovereignty and economic rights. It examines the recognition and affirmation of Tribal Nation sovereignty within the United States, including legal developments and court decisions that have shaped Indigenous self-governance. Taking into account the landmark case of McGirt v Oklahoma, the chapter emphasizes the need to addressing past legal injustices, Tribal reservation boundaries, and Tribal jurisdiction. The discussion also considers Tribal sovereignty within the United States in the context of international Indigenous trade, showcasing the ways in which Indigenous communities engage in economic activities and exercise their sovereignty on the global stage. This chapter emphasizes the importance of recognizing and upholding the treaty right to economic sovereignty to protect and promote Indigenous economic rights within the United States.
Chapter 11 presents a New Zealand case study, examining the paradigm of giving nature legal standing within the country’s judicial and legislative framework. It begins with an introduction that sets the stage for the discussion. The Māori philosophy of a relationship with nature, emphasizing the profound connection and inherent value Māori place on the environment, is then explored, as are the ways in which New Zealand law has affirmed this philosophy, particularly, through the roots of the country’s environmental achievements as anchored in the Treaty of Waitangi. The chapter then considers two examples – the Te Urewera Land Legislation and the Whanganui River Legislation – showcasing the innovative approaches taken to grant legal personhood to natural entities. It further explores the incorporation of Māori Indigenous TK in sustainable development practices, highlighting Māori trade and the introduction of new measures of well-being and environmental protection. The chapter concludes by emphasizing the significance of giving nature legal standing and the implications for both Māori and New Zealand’s approach to sustainable development.
Chapter 12 features examples of Indigenous peace agreements in the Andes region. It begins with an introduction that highlights the significance of understanding legal geography and its relevance to Indigenous Peoples. It then details the legal frameworks that protect Indigenous rights, focusing on international instruments such as declarations and conventions; and examines specific agreements in the Andes that enact these legal frameworks, with a spotlight on the National Agreement for Development and Peace in La Araucanía, 2018, in Chile, and the Agreement Between the Bolivian Government and the Confederation of Indigenous Peoples from the East, Chaco, and Amazonia in 2010. Focusing on the intersection of legal, social, and political dynamics in promoting Indigenous rights and fostering peace, and legal geographies of these agreements, the chapter considers the complex challenges and opportunities Indigenous communities face in achieving sustainable development and peace in the Andes region.
Part IV concludes with Chapter 13, which presents agreements between Indigenous Peoples and governments in Bangladesh and Mexico that focus on their roles in promoting sustainable development. The introduction sets the stage for subsequent discussions by emphasizing the importance of global legal and policy frameworks, like the UNDRIP and the SDGs, in shaping these agreements. The examples from Bangladesh and Mexico are analysed together with experts from these regions, shedding light on the unique characteristics, provisions, and outcomes of agreements between Indigenous Peoples and governments in these contexts. A comparative analysis is conducted to identify commonalities, differences, and lessons learned. Ultimately, the chapter concludes by highlighting the significance of ongoing dialogue, collaboration, and respect for Indigenous rights in achieving sustainable development goals globally. It underscores the importance of incorporating Indigenous perspectives and aspirations into the design and implementation of such agreements.
The last section, Part V, scopes future directions and options, distilling lessons learned from current practices for the reform of political and legal institutions at the national, regional, and global levels by drawing on a new treaty that provides innovations to address the complex problems presented throughout this volume.
Chapter 14 rounds out the volume by emphasizing the importance of incorporating the principles of the UNDRIP and sustainable development in newly negotiated Indigenous trade agreements. The introduction highlights the significance of UNDRIP in promoting the rights and aspirations of Indigenous Peoples. The chapter details the origins of the Indigenous Peoples Economic Trade and Cultural Agreement (IPETCA), focusing on its innovations that enabled trade negotiations that amplified Indigenous views and values while enabled by the States of New Zealand, Taiwan, Australia, and Canada. The chapter then delves into the sustainable development aspects of IPETCA, showcasing how it aligns with the principles of UNDRIP and seeks to foster economic growth while respecting Indigenous rights. It then discusses IPETCA’s working mechanism and implementation, highlighting the role of the IPETCA Partnership Council and the Informal APEC Caucus in facilitating dialogue and collaboration. Finally, the chapter contemplates the viability of other States, like the United States joining IPETCA and the potential benefits it could bring. In conclusion, the chapter underscores the importance of innovative approaches like IPETCA in advancing Indigenous trade agreements that prioritize sustainable development and uphold the principles of UNDRIP.
This book concludes with insights for new directions that emphasize the critical importance of prioritizing Indigenous knowledge and treaties in efforts to advance sustainable development. This chapter summarizes the discussions brought forth throughout the volume and is centred on the wisdom and practices of Indigenous Peoples that promote respect, reciprocity, and harmony with the natural world. The convergence of Indigenous knowledge with global sustainable development agendas is now widely recognized as a crucial step towards a more balanced and resilient future. As the world faces unprecedented challenges such as natural disasters, resource scarcity, and human rights violations, the concluding chapter suggests, recognizing the strengths of diverse worldviews becomes essential. Through careful international legal analysis, respectful case studies of relationships, and comparative research, this volume explores the potential of treaties to foster sustainable futures that benefit all living beings.
