A/HRC/51/50 75. Changes made to the Indian Act in 1951 gave indigenous peoples in Canada access to courts, resulting in a series of Supreme Court rulings on cases dealing with Aboriginal rights and title as well as treaty rights, including the Calder, 140 Delgamuukw141 and Tsilhqot’in nation142 cases. Through a series of rulings, the Supreme Court has developed a set of rules for treaty interpretation, including the equal standing of oral and written evidence and the inclusion of indigenous peoples’ perspectives on rights and title, although they have not always resulted in interpretations of treaties that reflect indigenous peoples’ understanding of their spirt and intent.143 76. Courts are also responsible for determining when treaties have been infringed and whether such infringement is justified in accordance with the tests established by the Supreme Court of Canada in the Sparrow and Badger cases. 144 However, it is worth emphasizing that the notion of “infringement”, as consistently relied upon by the Supreme Court, is inconsistent with article 40 of the Declaration, which affirms the right of indigenous peoples to effective remedies for all infringements. C. International mechanism 77. As pointed out in the final report of the Special Rapporteur, and continuing to be highly relevant, States express reticence to take contentious issues related to treaties, agreements and constructive arrangements involving indigenous peoples into the international realm. However, consideration should be given to open discussion and decisionmaking in international forums, once domestic jurisdiction is exhausted. This is especially relevant for treaties and constructive arrangements with international status. 145 78. The Special Rapporteur called for more discussion of the establishment of an international body, highlighting that “the non-existence, malfunctioning, anti-indigenous discriminatory approach or ineffectiveness of those national institutions will provide more valid arguments for international options. This may be one of the strongest possible arguments for the establishment (or strengthening) of proper, effective internal channels for the implementation/observance of indigenous rights and conflict resolution of indigenousrelated issues.146 Although the establishment of international mechanisms has been suggested at the United Nations expert seminars following the final report of the Special Rapporteur, along with the invitation to regional bodies to engage and make recommendations on treatydisputes,147 little progress has been made. 79. Article XXIV of the American Declaration on the Rights of Indigenous Peoples affirms that when disputes in relation to treaties, agreements and other constructive arrangements cannot be resolved between the parties they should be submitted to competent bodies, including regional and international bodies, by the States or indigenous peoples concerned. 140 141 142 143 144 145 146 147 victory in Supreme Court ruling quashing South Taranaki seabed mining consents”, Stuff, 30 September 2012, see https://www.stuff.co.nz/business/126525818/both-sides-claim-victory-insupreme-court-ruling-quashing-south-taranaki-seabed-mining-consents. Supreme Court of Canada, Calder et al. v. Attorney-General of British Columbia, [1973] SCR 313). Supreme Court of Canada, Delgamuukw v. British Columbia, [1997] 3 SCR 1010. Supreme Court of Canada Tsilhqot’in Nation v. British Columbia [2014] SCC 44. Submission of the Treaty Relations Commission of Manitoba; see also on interpretation of treaties, Supreme Court of Canada, R. v. Marshall [1999]; R. v. Van der Peet [1996]; The First Nation of Nacho Nyak Dun v. Yukon (Government of) [2017] SCC 58. Supreme Court of Canada, R. v. Sparrow [1990]; and Peter W. Hogg and Roy W. Millen, “Re: treaties and the sharing of sovereignty in Canada”, legal opinion requested by the British Columbia Treaty Commission, 18 April 2017; see also https://www.canada.ca/en/crown-indigenous-relationsnorthern-affairs/news/2022/01/indigenous-led-transitional-committee-formed-to-establish-a-nationalcouncil-for-reconciliation.html. E/CN.4/Sub.2/1999/20, paras. 312–314. Ibid., para. 317. See the compilation of conclusions and recommendations from the United Nations seminars on treaties, agreements and other constructive arrangements. 17