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Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. OEA/Ser.L/V/II.110, Doc. 22 (2001).


 

Article XXIII

Nothing in this instrument shall be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.

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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