In contrast, approximately 500 000 Indigenous people inhabit South Africa – equivalent to 1% of the population – according to the International Work Group for Indigenous Affairs. In a 2018 report by the South African Human Rights Commission (SAHRC) on the situation of the Khoi-San in South Africa, the SAHRC recognised that the term “Indigenous peoples” is complex and encompasses a broad category, including Khoi and San peoples among other Nations. 

Although Indigenous peoples make up less than 5% of the world’s population, they embody over 5 000 unique cultures, and speak more than half of the world’s 7 000 languages. 

Indigenous rights are framed in an international context by the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While South Africa and 143 other nations voted in favour of the Declaration, Canada, Australia, and the United States voted against it. Canada deemed provisions within the declaration to be “incompatible” with its constitutional framework, specifically Article 91 (which requires the government to secure consent of Indigenous peoples on public policy matters) and Articles 26 and 28 (which allow for the re-opening of historically settled land claims). While Canada pledged to fully adopt UNDRIP in 2016, in 2018 its Supreme Court ruled that the federal Government does not have to consult First Nations when drafting legislation. The Court held that duty to consult during the legislative process would lead to judicial interference in Parliament. Instead, duty to consult applies exclusively to executive decisions made by the government that could impact treaty rights. 

Of particular importance in both Canada and South Africa, is the relationship between Indigenous communities and ancestral land, especially in light of the States’ growing demand for natural resources. In Baleni and Others v Minister of Mineral Resources and Others, the Pretoria High Court determined that the Minister of Mineral Resources must obtain full and informed consent from the Umgungundlovu community of the amaMpondo Nation – who hold informal land rights – prior to granting a mining right. The High Court noted the elevated status of customary law under the Constitution, and the necessity of redressing historic economic and territorial dispossession. The High Court also restated the importance of ensuring that communities have the right to decide what should happen on their land, to apply customary laws practised by them, and not to be deprived of an informal right to land without their consent.

In Canada, the cases of Delgamuukw v British Columbia (BC), R v Sparrow, and Haida Nation v BC restrict the rights of the State on traditional Indigenous lands and endow the State with a fiduciary duty to protect the rights and interests of Aboriginal people. However, conflicts continue to arise as companies petition for exploration permits to determine the value of drilling, mining, and pipeline expansion. In 2018, Tsleil-Waututh Nation v Canada saw judicial review for approval of the Trans Mountain Pipeline Expansion Project. Canada’s Federal Court of Appeal recognised the State’s failure to adequately discharge its duty to consult and accommodate the interests of Tsleil-Waututh Nation, and consequently quashed the project. When legitimate concerns are raised by communities, Canada has a responsibility to dialogue meaningfully about those concerns.

South Africa too, has a responsibility to dialogue meaningfully with Indigenous communities, and section 25(6) of the Constitution protects people whose tenure is legally vulnerably because of past racially discriminatory laws and practices. Article 10 of the UNDRIP further affirms that Indigenous peoples shall not be forcibly removed from their lands and must provide free and informed consent or receive just and fair compensation. However, as reflected in the cases above, despite the mandated consultation and consent, governmental and private bodies continue to disregard the interests of the affected Indigenous communities. 

Mining, drilling, and resource exploitation have harmful effects on local communities, and rockfalls, transport accidents, and corporate exhausts led to 1 450 deaths and thousands of injuries between 2005 and 2015 in South Africa. Canadian mines have also led to more than 50 deaths and 400 injuries between 2000 and 2015, particularly at Latin American sites. Extractive industries – 50% of which are located near or on Indigenous lands, according to the United Nations Permanent Forum on Indigenous Issues – disproportionately harm Indigenous communities and are exacerbated by governments’ failure to cooperate and consult with affected groups.  

As such, both South Africa and Canada have a responsibility to conduct prior consultation and receive consent from Indigenous communities who have the rights to land, especially in light of the dangers and hazards associated with mining. Lack of consultation can lead to culturally-inappropriate policies, which – by imposing state norms – are often ineffective in addressing communities’ respective concerns. Prior consultation is crucial, and consent can be more readily given if governments begin to implement safety protocols, policies and programmes, update legislation, and strengthen education programmes.

The SAHRC, as well as Canada’s Truth and Reconciliation Commission, also recognise a lack of effective implementation of laws, policies, and constitutional guarantees as significant obstacles to progress. 

South Africa has a responsibility to make a more concerted effort to recognise its Indigenous peoples. South Africa can begin by attending to Khoisan concerns left unaddressed by the proposed Traditional and Khoi-San Leadership Bill, including Indigenous identity, languages, and land rights. While Canadian law acknowledges Aboriginal treaty rights, Section 35 of Canada’s Constitution is limited in its recognition of Canadian sovereignty and colonial laws as superseding Indigenous ones. The Prime Minister’s recent recognition of Canada’s genocidal history with Indigenous populations indicates but one step towards reconciliation and the cultivation of a more honest and authentic nation-to-nation relationship with Indigenous populations. 

By Ms Myra Sivaloganathan: Intern, Centre for Constitutional Rights
9 September 2019 

*This article was written independently by an intern of the Centre for Constitutional Rights (CFCR) and represents the views of the author. It does not necessarily represent the views of the CFCR and its staff. The Centre is, however, committed to a broad public dialogue aimed at the promotion and protection of the values, rights and principles enshrined in the Constitution.