‘Free, prior and informed consent’ a fairer way Canada’s indigenous people have a right to determine use of land

Source: Winnipeg Free Press

Photo: DARRYL DYCK / THE CANADIAN PRESS FILES. Patricia Kelly, of the Sto:lo First Nation, chants at a January protest outside National Energy Board hearings on the proposed Trans Mountain pipeline expansion in Burnaby, B.C.

By: Joëlle Pastora Sala and Byron Williams are lawyers with Manitoba’s Public Interest Law Centre.

What does Prime Minister Justin Trudeau’s promise to implement the United Nations Declaration on the Rights of Indigenous Peoples really mean for our relationships with Canada’s original peoples?

Canada endorsed the declaration in 2010 and, as part of its commitment to enact the Truth and Reconciliation Commission’s recommendations, the Trudeau government has promised to implement it. But the federal government has said very little about how that will happen.

Perhaps the most controversial right in the declaration relates to the concept of “free, prior and informed consent.” By endorsing the declaration, countries pledge to consult with indigenous people and obtain their consent before the approval of any project affecting their lands and resources.

Naysayers might argue that implementing free, prior and informed consent runs the risk of derailing future projects such as pipelines, mining or hydro developments.

But the system is already derailed. It will not get back on track unless the relationship is re-imagined and renewed.

Resistance to the declaration often stems from a misconception that “free, prior and informed consent” gives indigenous people a veto on natural resource projects. This assumption is false. The word ‘veto’ does not appear anywhere in the declaration. The words ‘consent’ and ‘veto’ have different meanings.

A ‘veto’ infers a power akin to a ‘trump card’ which could be used at any time by indigenous people regardless of their level of involvement. Free, prior and informed consent requires a rethinking of the relationship. ‘Consent’ is a more nuanced concept requiring active engagement and dialogue by both the Crown and indigenous people. It necessitates two-way information sharing at an early stage. It involves a Crown obligation to actively work with indigenous people with the objective of achieving consensus on a particular environmental or project decision.

Even before the government’s commitment to implement the declaration, the Supreme Court of Canada was moving toward an understanding of consultation based on consent in certain cases. The 2014 Tsilhqotin decision determined that consent was necessary and when it was not obtained, it was up to the government to justify its desire to infringe the rights of indigenous people.

A word of caution is warranted on the intricacies of international law. Unless it is incorporated into Canadian law, the declaration is not expressly enforceable in courts. However, the Supreme Court has found the legislature is presumed to act in compliance with Canada’s international obligations. In the recent Taku River decision, the Yukon Supreme Court confirmed the usefulness of the declaration in interpreting domestic law.

A commitment by Canada to implement the declaration will not go unnoticed. Courts may consider the context in which the government has promised to enact the declaration. This includes Prime Minister Justin Trudeau’s stated desire to reaffirm the nation-to-nation relationship between indigenous peoples and the Crown.

There is a risk that government will pay only lip service to the declaration. If that is the case, the implementation promise may be little more than a public relations ploy, subject to arbitrary application.

Canada could highlight its intent to implement its commitment to the principle of free, prior and informed consent by following the lead of jurisdictions, such as the Philippines, and entrench this right into laws affecting the environment and natural resource projects. This could be coupled with periodic reporting demonstrating the government’s commitment at both the administrative and legislative levels.

At present, relationships between indigenous peoples, the Crown, regulators, industry and the environment are badly out of balance. Far too often, engagement with indigenous people on natural resource projects is a token effort or a mere after thought.

The declaration calls for a dramatic change to relationships between the state, indigenous peoples and the environment. It creates an obligation to work with indigenous people based on the principles of mutual respect and partnership.

It’s a potential game-changer. If implemented in a meaningful way, the doctrine of free, prior and informed consent goes beyond the current duty to consult and accommodate flowing from the Canadian Constitution Act 1982.

In practice, what does meaningful implementation mean?

First, it would no longer be acceptable to shoehorn the duty to consult into ill-suited vehicles, such as National Energy Board environmental assessments. Consultation would need to happen much sooner and would be based on dialogue rather than the one-way provision of information. Second, indigenous people would need to play a critical role in determining whether projects should proceed and the types of benefits their communities should receive. Third, traditional knowledge and indigenous legal orders would be attributed significant weight in decisions relating to natural resource projects.

The rights of indigenous people as outlined in the declaration may provide a framework for balancing relationships.

It provides an opportunity to demonstrate Canada’s commitment to working with indigenous people on a nation-to-nation basis. But realizing the declaration’s true potential will likely require a commitment to translate high principle into robust legislation and meaningful administrative action.