UNDRIP Consent: A Moving Target

July 06, 2016

1. The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society. [1]

In May 2016 when Canada removed its official objector status and officially endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) it sparked numerous reactions ranging from joy and empowerment to fear, gloom, doubt and confusion. In this article we are going to focus on the confusion aspect.

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The crux of the confusion over UNDRIP is the question “veto or no veto?” Now that Canada has endorsed UNDRIP, can Indigenous Peoples veto a project?

The Crown’s existing “duty to consult” with Indigenous peoples on issues that might affect their interests is constitutionally protected. What UNDRIP does is take that duty up a notch on the consultation continuum and calls upon governments to obtain free, prior and informed consent (FPIC) from Indigenous Peoples on issues that might affect their interests. So, it’s no longer good enough to simply meet the guidelines of consultation, the Crown must now ensure that FPIC has been obtained.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development [2] (emphasis added)

The Minister of Crown - Indigenous Relations and Northern Affairs Canada (CIRNAC) described it like this: “The declaration, she said, tells governments, corporations and all Canadians that “one must begin by meaningful engagement with indigenous people, and be able to understand the rights that they hold, as they begin any thoughts of a project or policies that affect indigenous people.” [3]

If the Crown does not obtain FPIC, do the affected Indigenous Peoples then have the constitutional right to veto a project? This has yet to be clarified by the federal government. Canada has endorsed the Declaration but the Declaration is not Canadian law, nor is it international law. It is a Declaration that calls upon States to adopt “a standard of achievement to be pursued in a spirit of partnership and mutual respect.” [4]

“Chris Tollefson, an expert on aboriginal law at the University of Victoria, said Canada’s “long overdue” endorsement of the UN declaration doesn’t confer a veto on First Nations. “Ultimately domestic courts will have to assess the nature and strength of the claim being advanced by the First Nation and come to their own conclusion,” he said in an email exchange. “In some situations, that assessment may lead to a conclusion that the claim is so compelling that it amounts to what might some might term a ‘veto.’ But the burden of establishing that claim will lie with the First Nation.”” [5]

In this news clip from Aboriginal Peoples Television Network from February 4, 2016 Prime Minister Justin Trudeau appears to be cautious about UNDRIP and the right to veto. [6]

And according to CIRNAC Minister Carolyn Bennett, “...they do not believe this is an outright veto” - they being Assembly of First Nations Grand Chief Perry Bellegarde, the Supreme Court of Canada, and James Anaya, one of the authors of UNDRIP. [7]

Here’s another hint from on high - former AFN Grand Chief Phil Fontaine, in his report “Collaborative Consent”, he offers up the government of the Northwest Territories as an example of effective consent-based discussions with Indigenous Peoples. Some recommendations for the federal government include: “secure nation-to-nation commitments from Indigenous governments to work by collaborative consent methods; policy statements, guidance documents and directives on achieving consent should be co-developed with Indigenous governments; Canada and Indigenous governments should propose talks with provinces to explore collaborative resource revenue sharing models.” [8]

Former Justice Minister Jody Wilson-Raybould, at the annual general assembly of the Association of First Nations on July 12, said "As much as I would tomorrow like to cast into the fire of history the Indian Act, so that nations can be reborn in its ashes, this is not a practical option....Which is why simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable ..... Ultimately, the United Nations declaration will be articulated through the constitutional framework of section 35,” [9]

So, there you have it - the confusion people and organizations are experiencing is warranted as to whether or not Indigenous Peoples in Canada now have the right to veto a project - hence the title “UNDRIP Consent - A Moving Target”

So what should a developer do in such a situation with moving targets? The answer will depend on the developer but we have always said that it is better to get consent than it is to not have it. We have noticed that firms with Impact Benefits Agreements (a contract that says there will be impacts on rights but there will be benefits in exchange - a consent of sorts) tend to do better than those developers with no agreements at all.  

Also, if you look at the long term trend of consultation legal direction from the courts with respect to Indigenous Peoples you will notice that it has gone from mere consultation in the early rounds of the Delgamuukw and Gisday’way lower level court decisions in the mid 1990s to beyond more consultation and could go up to and include full consent of the Indigenous Nations whose lands are at stake. In summary, the best way to ensure a project will be built is to have consent of some sort. Anything less opens up avenues of legal challenges, negative media campaigns, and project delays.    

[1] What we have learned: Principles of truth and reconciliation, Truth and Reconciliation Commission
[2] United Nations Declaration on Rights of Indigenous Peoples
[3] Canada drops opposition to UN indigenous rights declaration, Globe and Mail, May 9, 2016
[4] United Nations Declaration on Rights of Indigenous Peoples
[5] Trudeau signals more power for First Nations over economic development, National Post, December 8, 2015]
[6] Trudeau backs away from election pledge on First Nation veto, APTN News, February 4, 2016
[7] UN declaration doesn't give Canadian First Nations a veto: minister, Vancouver Sun, June 30 2016
[8] Trudeau government eyeing NWT’s ‘collaborative consent’ model as part of UNDRIP implementation, APTN, May 9, 2016
[9] Ottawa won't adopt UNDRIP directly into Canadian law: Wilson-Raybould, iPolitics, July 12, 2016 

Confused about UNDRIP? We've got a course for that! Working with UNDRIP. Click the image to learn more. 

 Working with UNDRIP course

Updated: July 13, 2016

Topics: Indigenous relations

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