SSHRC Insight Grant of $399K awarded for research on Indigenous constitutionalism

A team led by Assistant Professor Joshua Nichols, with the support of the Wahkohtowin Law and Governance Lodge at the University of Alberta Faculty of Law, is the recipient of a prestigious Insight Grant from the Social Sciences and Humanities Research Council.

The $399,000 grant is for a project that will investigate how the three strands of international, domestic and Indigenous law and governance interact with one another.

Specifically, it seeks to determine how the Canadian constitutional order must be reconsidered in order to implement principles of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada’s northern territories.

The Constitution’s current framework for Aboriginal rights is too limited to be a vehicle for implementation of rights concerning self-determination and free, prior and informed consent, says Nichols.

“Sections 91 and 92 outline the powers of the provinces and federal government and make sure there is space for them within federalism, but Section 35 doesn’t provide that for Indigenous Peoples,” says Nichols, who researches Canadian constitutionalism, Aboriginal rights and Indigenous law.

“As soon as you talk about consent and self-determination, you’re talking the language of jurisdiction, and to date there has been no successful case to provide the right of Indigenous people to self-government. The very idea of needing to prove a right to self-government is indicative of the limitations of the language of rights and it fails to reflect the legal reality of Indigenous legal orders as members of confederation. By moving to the language of jurisdiction we can move past these kinds of conceptual barriers."

Investigative Tool

The five-year project’s central investigative device will be a series of 20 to 25 intensive co-learning courses about UNDRIP and Indigenous constitutionalism. Students from the Dechinta Centre for Research & Learning and other northern land-based learning institutions will collaborate with law students from universities in southern Canada to develop novel, Indigenous-led approaches to implementing UNDRIP in the territories.

“We’ll throw out a problem and see what different people come up with, what works and what doesn’t,” says Nichols. “This allows us to listen to students coming from a northern perspective about what Canadian federalism looks like and how it is actually practised and lived. This exchange is something that doesn’t happen very often in Canada.”

The information produced from the courses will be collected in books and articles by each of the researchers and in a legal handbook for Indigenous people who are using their own constitutional traditions to implement UNDRIP.