Sea-ice Melting,Collective Inuit Peoples’ Rights and the Human Rights Discourse: A Critical Legal Analysis of the Nunavut Governance System

3.1 The Inuit right to culture: Key for Nunavut’s climate change adaptation?

In this section, we will not tackle the symbolic issue of the Inuktitut language, for it is encompassed in traditional knowledge, and not directly linked to climate change issues. We will rather focus on the Inuit culture preservation, as intended with the territory’s creation, 74 and its inclusion in Nunavut governance.

In Nunavut, traditional knowledge is called Inuit Qaujimajatuqangit, defined as “all aspects of traditional Inuit culture including values, world-view, language, social organization, knowledge, life skills, perceptions and expectations”. 75 It is considered as an effectiveness factor in the implementation of local strategies, 76 and is key in Nunavut, as most adaptation initiatives are community-based. 77 Protecting it from climate change is therefore necessary, despite the –yet limited –aggravation effect of traditional practices on environmental stresses.

The right to culture is a milestone in UNDRIP and is granted in several articles, 78 particularly article 31 ensuring to Indigenous a right to “maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, [. . .]”. 79 States shall take effective measures, in cooperation with Indigenous Peoples, to recognize and protect the exercise of these rights. 80 Accordingly, Indigenous have the right to be responsible for the management of their culture, as defined within the article, and states shall ensure that Indigenous are the one in charge of its preservation, control and development.

In Nunavut, Inuit Qaujimajatuqangit is diffused within the governance system. For instance, NTI is involved in the decisions over cultural issues, and Inuit on issues regarding their livelihood (e.g. wildlife, water and natural resources management), through the boards. 81 Moreover, together with the boards, the Government of Nunavut created a Task Force on Inuit Qaujimajatuqangit and hired dedicated coordinators in every Department, in order to involve Inuit knowledge in all its decision-making processes. 82 In 2003, it led to the adoption of cultural immersion days for public servants, encouraging the practice of Inuit traditional activities. 83 Today, inclusion of traditional knowledge in some fields decreases Nunavut vulnerability and favors the development of better adaptation strategies 84 (e.g. in climate change adaptation strategies, 85 the Education Act of Nunavut, the Nunavut Wildlife Act). Therefore, we conclude on the Nunavut’s compliance with UNDRIP’s standards, in theory.

Nonetheless, transmission of Inuit knowledge from generation to generation decreases, 86 endangering Inuit culture. This is reinforced with the loss of Inuit traditional environment (e.g. melting ice prevents transmission of igloo construction skills 87 ). This strengthens the environmental impact of some human, economic activities, as inclusion of Inuit Qaujimajatuqangit in decision-making over these activities seems to increase consideration for environment. However, some local initiatives arise in order to preserve traditional knowledge (e.g. in some regions skills are taught 88 ), thereby limiting the losses.

To conclude, the territory’s ability to preserve and develop Inuit culture in practice, and to limit environmental degradation, depends on political will and funding to implement such policies. Today, both are lacking, 89 preventing the development of social policies responding better to Inuit’s specific needs. 90 Moreover, as Inuit culture is linked to their land and resources, other Inuit rights should be protected to fully ensure their right to culture.

3.2 The rights to land and resources: Essential components of the Inuit livelihood protection in regard to climate change

Indigenous Peoples’ attachment to their land and environment embodies their defining characteristic, 91 and explains their fight for legal recognition of their right to ancestral lands. 92 UNDRIP grants such a right in several provisions, 93 especially article 26, with a right to own, use, develop and control their traditionally owned or occupied lands. States shall legally recognize and protect these rights in respect of Indigenous traditions and land tenure systems, and redress Indigenous, when they were deprived of these lands, without consent. 94

As part of the HR to culture, sovereignty over resources is also granted under UNDRIP. Article 32 sets a right to manage the lands’ and resources’ development and use through a right to free, prior and informed consultation. Accordingly, Indigenous should be consulted, with the objective to obtain their consent on any project affecting their lands or resources. 95 Courts developed specific conditions regarding consultation (i.e. conducted in good faith, through culturally appropriated procedure, at an early stage of the project’s development, which must be accepted knowingly and voluntarily by Indigenous). For large-scale projects, higher standards are set (i.e. need for a free, prior and informed consent). 96 In the context of melting ice, consultation is essential to preserve Inuit rights over natural resources, as there unregulated and easier exploitation can become detrimental to Inuit. 97 It is even more crucial when they mobilize traditional knowledge during consultations, as it may encourage more environmentally respectful decisions.

Protection of the environment is also implied in the right to land, creating the obligation for states to take effective measures not to storage or dispose hazardous materials on these lands. 98 Environmental protection should be put in balance with other rights, especially in times of climate change. In sum, UNDRIP provides Indigenous rights to live on, own, control the development and use, as well as environmental protection, of the lands they traditionally occupied and resources they are spiritually attached to.

In Nunavut, the Agreement grants Inuit a right to land, giving them a free and unrestricted access to land and water within the Nunavut Settlement Area, up to their full level of economic, social and cultural needs, but subject to federal conservation requirement. 99 Thanks to the Nunavut Planning Commission, Inuit are involved in the management of the non-Inuit territory and can control Inuit lands’ use and development, 100 including some mineral and mining activities 101 for which they receive compensation. 102 Moreover, they have surface and sub-surface rights (fee simple titles 103 ) over respectively 18%and 1,9%of the territory. 104

Article 26 protects the Inuit right to resources, imposing an Inuit Impact Benefits Agreement, including ecological, economic, social and cultural impact assessment. Accordingly, benefits arising from Major Development Project 105 are shared with Inuit communities potentially affected by it, 106 through provisions on employment, training or cultural and environmental guarantees for instance. 107 Inuit can control its negotiations and implementation through the Nunavut Impact Review Board, 108 as well as the implementation of the federal Canadian Environmental Assessment Act. 109 Governments shall also consult with Inuit organizations on petroleum exploration or production on Inuit or Crown lands, 110 as well as on specific matter for other resources exploitation on Crown land. 111 Therefore, the Agreement fulfills UNDRIP’s standards on Indigenous rights to land, resources and consultation on their use.

Limits can, however, be highlighted. First, nowadays Inuit combine in kind revenue from the land and cash income, often coming from environmentally damaging activities (e.g. mining activities). 112 Therefore, granting Inuit such extended rights can be an asset facing climate change only if their sense of stewardship is used and applied in all their decisions. In order for them to do so, social guarantees should be developed regarding climate change impacts on their traditional modes of subsistence. Second, the advisory competence of the boards limits Inuit influence on final decisions, especially over mining projects on Crown lands. 113 Moreover, even if in theory traditional knowledge should be included in NTI’s decisions, the latter, as well as Canada are encouraged to approve land or resources exploitation, as they economically benefit from it. 114 Lastly, the duty to consult in Canada is not absolute and is completely lacking in some areas (e.g. absence of black carbon policy 115 ).

Finally, UNDRIP’s article 32 blurry wording on the possibility for Indigenous to refuse a project, in order to preserve their interest, lowers the standard it sets. Indigenous Peoples cannot effectively assert their rights in face of project promoters’ interests. We conclude that the Agreement is in accordance with UNDRIP standards. Although project counterparts might appear as incentives for Inuit to accept environmental damaging activities, they could become tools to better protect it on the long run. Notwithstanding the importance of environmental conservation issues, the Agreement has no dedicated provision, lowering its consideration in decisions. The rights over natural resources added to the right to harvest suggest, however, that Inuit have an implied right to conservation, 116 hereinafter addressed.

3.3 The right to harvest: A vital right for Inuit livelihood contributing to the pressure existing on Nunavut ecosystems?

For Inuit, hunting prepares young “not only for survival on the land and ice but also for life itself”. 117 In 2005, 70%of the Arctic Indigenous population harvested country food, and the Nunavut Government estimated the annual food-oriented harvest revenues to $30 million (CAN). 118 While Inuit hunting practices are impeded by climate change, they might also reinforce pressure on the Arctic animal populations, in light of the ongoing sixth mass extinction process. 119 Consequently, we argue that Inuit Qaujimajatuqangit should be involved in wildlife management. 120 In this section, we focus on Inuit harvesting rights, but not on the important issue of marine management, 121 as it extends beyond the scope of this paper.

UNDRIP asserts a right for Indigenous to benefit form their own means of subsistence, thus, to use their resources according to their traditions, cultures and will. 122 Article 29 also sets forth a right to environmental protection, which is linked to Indigenous right to culture. In order for Inuit to effectively enjoy it, protection and conservation of wildlife are necessary, 123 as once resources are depleted they cannot be used anymore. These two rights are consequently limited by the necessity of their balancing to ensure effectiveness of both.

Article 5 of the Agreement deals with all aspects of wildlife and involve Inuit in its management, thus ensuring the survival of traditional harvesting practices. Nunavut Act’s article 23 gives competences over games’ and culture’s protection to the Nunavut Government. It also states that no restriction can be made to the Inuit right to hunt on unoccupied Crown Land, except if the Governor declared some species in danger of extinction (Nunavut Act, article 24). 124 It is reinforced by the board competence on wildlife conservation (the Agreement’s article 5.1.4), which directly manages and regulates access to it through the establishment of quotas (i.e. total allowable harvest for each populations), 125 except for endangered species. The final word remains in the hands of the Governments, 126 but Inuit are involved through the board and quotas are based on the annual harvest information collected by the Hunters and Trappers Organizations (composed of Inuit members). However, since the more they report, the more constraints are imposed on them, they lack interest in reporting. 127 Consequently, institutions struggle to impose realistic quotas, to which Inuit often oppose. 128 If no quotas are established Inuit are free to harvest up to their economic, social and cultural needs. 129

In Nunavut, Inuit benefit from their own means of subsistence, as required by UNDIRP. One can conclude that the Nunavut Wildlife Management Board is a crucial tool in Inuit adaptation to climate change; 130 quotas, nonetheless, are not suitable to protect Inuit hunters’ interests. In practice, it fails to balance between conservation objectives and Inuit’s harvesting rights, as it increases their dependence on wages, by limiting the timing of the hunt. In the end, quotas hinder Inuit adaptation abilities, harming their ancestral flexibility, 131 and diminishing their vital access to country food, (i.e. damaging further their culture). As long as the institutions do not integrate Inuit hunters’ needs (being social, economic or cultural) and their knowledge, Nunavut would not effectively implement the Inuit right to harvest in the context of climate change, contradicting with UNDRIP’s standard. To offer Inuit the capacity to cope with their changing environment, while preserving it, the boards should provide more local flexibility and better use Inuit Qaujimajatuqangit within their respective competences. 132

4.1 From UNDRIP to UNDROP: Dropping the individual nature of human rights in response to collective Indigenous claims for better climate mitigation?

In 2018, UNDROP was adopted by the UN General Assembly, following the peasants movement’s “La Via Campesina” proposal and advocacy. 138 It recognizes the rights of peasants and rural populations, notably their right to land, 139 as well as their specific relationship to nature. 140 UNDROP is considered by literature as challenging the HR framework’s limits and biases. 141 Peasants themselves drafted it collectively, in their language, in order to respond to their self-defined needs, 142 especially regarding climate change. 143 In that sense, it expressly specifies that its rights should be enjoyed individually, “in association with others or as a community”. 144 On the contrary, UNDRIP has no such clear provision. It recognizes Indigenous collective rights in its preamble, 145 but only explicitly grants collective rights in a few articles (e.g. articles 1 146 and 7 147 ). Many UNDRIP’s articles should, however, be understood as having a collective nature, especially rights to self-determination and culture, according to their previous interpretations by HR bodies.

The American Declaration is seen as safeguarding Indigenous collective right to culture. 148 The rights to land, resources, 149 and property went through a collectivization to answer Indigenous’ claims. 150 UNDRIP’s duty to consult can also be interpreted as reflecting the recognition of the Indigenous collective right to property. 151

Furthermore, UNDROP specifically states that its rights also applies collectively to Indigenous Peoples (article 1.3), thereby confirming the collective nature of UNDRIP’s rights. Indeed, recognition of Indigenous’ collectivity in UNDROP can be transposed to other international instruments, 152 especially UNDRIP, as it was adopted by the same body.

Recognition of Indigenous collective self-determination and cultural rights is particularly crucial when facing climate change, as both lies at the heart of the resilience and adaptation capacity of territories (see sections 2.2 and 3.1). If some argue that UNDRIP is a juxtaposition of individual, collective and special rights, 153 we believe it is rather a reaffirmation of pre-existing rights, avoiding to engage with Indigenous specific claims.

4.2 UNDRIP’s rights: Specific Indigenous rights enabling their survival as peoples in face of climate change or classical human rights?

Indigenous cosmovisions create the need for a special legal regime departing from general HR rules. 154 However, UNDRIP only recognizes to Indigenous collective HR that other peoples have, 155 grounded on their characteristics (i.e. their culture, relationship to land, etc.). By doing so, it deprived Indigenous Peoples of their HR to external self-determination, 156 when it is tightly linked to their cultural integrity, the first enabling the development and preservation of the second.

Denial to Indigenous of their right to full self-determination is a priori based on the HR principle of non-discrimination regarding other minorities, but in reality, it is based on their indigeneity. Indigenous’ rights were mainly perceived in terms of culture, which already benefited from a HR protection, but not in terms of autonomy. 157 By endorsing the traditional HR view on the right to culture and promoting the equality of all citizens before the law, even Indigenous Peoples, UNDRIP followed a state-centric approach. 158 Yet, their indigeneity is the reason why Indigenous Peoples have not been given the same right to self-determination than other dominated peoples. 159 This limitation is discriminating, contrary to the HR principle used to refute Indigenous self-determination claims. Following this contradiction, special rights previously claimed by Indigenous were not granted within the HR framework, 160 and UNDRIP could only grant a right to internal self-determination.

To conclude, UNDRIP does not recognize specific collective rights to Indigenous, but classical and preexisting HR applicable to all. Negotiation further favored states’ sovereignty over indigenous collective rights, 161 supporting the HR discourse’s western, neo-liberal roots. 162 Hence, the use of international law to protect their rights resulted in their persistent marginalization and amounts to colonial expansion. 163 We argue that the traditional HR regime fails to effectively protect Indigenous and their culture, and to recognize the importance of the community level through the express recognition of collective rights. This diminishes consideration for communities in the global climate governance, when their involvement could be an effective response to tackle climate change. Their participation is already provided in some international environmental law provisions. 164