Canada: "Free, Prior And Informed Consent" To Become Part Of Alberta Law?

Last Updated: July 28 2015
Article by JoAnn P. Jamieson, John Olynyk and Daphne Rodzinyak

On July 7, 2015, Alberta's Premier Rachel Notley directed her Cabinet Ministers to review their Ministries' policies, programs and legislation that may require changes based on the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). Premier Notley tasked her Ministers to "engage directly with Indigenous people to find a common and practical understanding of how the principles of the UN Declaration can be implemented in a way that is consistent with our [Canadian] Constitution and with Alberta law." Premier Notley's direction highlights the government's commitment to working with indigenous peoples as "true partners."  The governmental review is due February 1, 2016.

The UN Declaration

The UN Declaration was passed by the United Nations in 2007, and was intended to provide a standard of achievement for member nations in dealing with indigenous populations within their nations.  The UN Declaration addresses a wide spectrum of indigenous people's individual and collective rights, ranging from the right not to be forcibly relocated to allow resource development to occur, to a right of self-determination.

A key aspect of the UN Declaration is its treatment of how indigenous peoples should be involved in decision-making about resource developments possibly affecting their rights. The UN Declaration speaks to the need to obtain the "Free, Prior and Informed Consent" (FPIC) of indigenous communities to development activities that could affect their traditional lands, territories and resources. Some pertinent references to FPIC include:

Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28(1):  Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Article 32(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, utilization or exploitation of mineral, water or other resources.

How the UN Declaration — including FPIC — applies, or should apply, in Canada, has been a matter of debate since it was passed. Aboriginal groups believe that the UN Declaration recognizes that governments should obtain their consent in making decisions that affect their rights. However, the Supreme Court of Canada has recognized that the Crown's duty to consult and accommodate constitutionally-protected Aboriginal and treaty rights does not require governments to obtain consent, except in limited circumstances (for example, where Aboriginal title has been established).

As a result, Canadian governments have been cautious to formally adopt the UN Declaration.  In 2010, the federal government adopted the UN Declaration, but was careful to state that the UN Declaration was a non-binding document which was not consistent with international law, and which did not change Canadian law. The federal government adopted the UN Declaration as an "aspirational" document that Canada would interpret consistent with the Canadian constitution and legal framework.

Note that the UN Declaration does not define or expand on the use of the term "their lands or territories." Accordingly, the question of to what extent FPIC applies in the context of indigenous title to traditional lands that may have been ceded through historical or modern treaties is left unanswered.

Implications for Resource Development in Alberta

What does it mean for the Government of Alberta to "implement" the UN Declaration?  At this early stage in the governmental review, the implications are uncertain.

Currently, Alberta's aboriginal communities have a right to meaningful consultation and to be accommodated if their treaty or Aboriginal rights have the potential to be impacted. Implementation of a requirement for Aboriginal consent to government decisions affecting treaty or Aboriginal rights would have significant consequences for project development in Alberta.

However, other elements of the UN Declaration — such as the implicit recognition that indigenous peoples should share in the benefits from resource development activities affecting their lands or rights — may be less controversial. Canadian case law recognizes compensation as a possible form of accommodation by government. The Government of British Columbia has negotiated resource revenue sharing agreements with Treaty 8 First Nations in northeast BC, and some modern land claims agreements north of 60 provide for territorial governments to share resource revenues with aboriginal groups. These measures have helped to develop aboriginal support for resource development activities affecting their traditional lands and treaty rights.

In committing to implement the UN Declaration, the Government of Alberta has taken on the very difficult task of balancing aboriginal rights and expectations against the need to foster an economic and regulatory climate that allows continued development of Alberta's natural resources. The recommendations arising from the governmental review will be closely watched by aboriginal groups as well as oil and gas companies and other resource developers in the Province.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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JoAnn P. Jamieson
Daphne Rodzinyak
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