Taking duties seriously?: the state obligations to consult and to accommodate indigenous peoples' rights

Abstract

Worldwide, recognition of the rights of Indigenous Peoples has not been coupled with an assumption of obligations to protect those rights. Meanwhile, in the name of economic growth, States sanction activities that negatively impact fundamental interests of the Indigenous Peoples in their ancestral lands. Based on Henry Shue's approach to right-based duties the author elaborates criteria to assess whether State obligations to Indigenous Peoples are construed as guarantees against standard threats to the exercise of Indigenous rights. The author finds that in contrast to the Inter American System of Human Rights' interpretation of State obligations that aims to further the exercise of Indigenous rights, the Canadian Courts' approach to obligations aims to confirm State sovereignty and to advance a utilitarian form of reconciliation. The latter perspective infuses the nascent Canadian doctrine on consultation and accommodation. The duties that result are ill conceived to further the enjoyment of Indigenous rights.