Canada: The United Nations Declaration On The Rights Of Indigenous Peoples And Free, Prior And Informed Consent – Where Does Canada Go From Here?

Last Updated: March 17 2016
Article by Stephanie Axmann and Bryn Gray

Most Read Contributor in Canada, September 2018

In 2015, Canada's new federal government committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (Declaration). This has generated significant attention in the mining and natural resource sectors due to the Declaration's potential incompatibility with Canada's constitutional and legal framework for Aboriginal rights and consultation, particularly the potentially broad interpretation of "free, prior and informed consent" (FPIC) as a veto right against resource development and administrative and legislative decision-making. While FPIC is a potential game changer, ultimately its impact in Canada will depend on how it is interpreted.

This article identifies the commitments of the federal government and the provinces to date towards implementing the Declaration, and some approaches and interpretations that Canada may look to for guidance. If Canada follows the increasingly prevailing perspective that FPIC should be viewed as an objective of consultation, except in limited circumstances where consent may be mandatory, in our view this approach would be generally consistent with Canada's constitutional and legal framework. However, this will still leave many unanswered questions with respect to the implementation of the Declaration as a whole.

Canada's commitments for implementation

Following Canada's federal election in October 2015, Prime Minister Justin Trudeau issued Ministerial Mandate Letters to the newly appointed federal Ministers.1 The Mandate Letter to Dr. Carolyn Bennett, Minister of Indigenous and Northern Affairs Canada, includes several priorities that are poised to generate attention from Aboriginal groups and the mining and natural resource sectors beginning in 2016. 2 Notably, the Minister is directed to "implement the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the" Declaration. 3

This fresh approach is in sharp contrast to the position previously taken by Canada since the UN General Assembly adopted the Declaration in 2007, when Canada voted against it. Canada eventually issued a statement of support for the Declaration in 2010, but with caveats, including that the Declaration is aspirational, non-legally binding, and does not reflect customary international law nor change Canadian law. 4 More recently, at the UN World Conference on Indigenous Peoples in September 2014, Canada opposed the UN General Assembly's resolution to support the conference's outcome document, 5 which reaffirmed support for the Declaration and directed States to take steps to implement the Declaration on a national level. 6

Canada's previous position was based mainly on concerns with the broad provisions related to lands, territories and resources, and a concern that the principle of FPIC could be interpreted as a veto. These concerns have been echoed by the mining and other resource sectors in Canada, particularly due to the lack of certainty about potential impacts of FPIC on Canada's current framework for consultation and accommodation.

Canada's Premiers also recently expressed commitments that could be seen as a step towards implementing the Declaration at the provincial level. In a meeting in June 2015 with First Nations leaders, the Premiers expressed support for the Truth and Reconciliation Commission's report and committed to act on its 94 recommendations (which as noted above, include full implementation of the Declaration as the basis for reconciliation). 7 In July 2015, Alberta's Premier took the further step to mandate her cabinet ministers to review their ministries' policies, programs and legislation to consider potential changes in order to implement the Declaration in a way that is consistent with the Constitution and Alberta law. Their reports and ideas were expected by February 1, 2016. 8 The federal government (and potentially also the provinces) now face the challenge of achieving a workable means of implementing the Declaration into Canadian law. At a high level, issues requiring consideration include whether implementation will result in changes to the current legal framework for Aboriginal rights, or whether the Declaration can be interpreted within the existing constitutional and legal framework. 9 Government will also need to consider the appropriate method of implementation, whether it is achieved through, for example, a policy framework approach, changes to existing legislation, or adoption of new legislation. In any event, it seems clear that any successful effort at effective and meaningful implementation will require a consistent and coherent interpretation of the Declaration that can be applied universally across Canadian jurisdictions and aligns with Canada's constitutional framework for the protection of Aboriginal rights. One of the first challenges will be to achieve consensus on the meaning of each of the Declaration's principles in the Canadian context. Clear interpretive guidance on the Declaration, including how it may modify rights and obligations, will be crucial for regulatory decision-makers, Aboriginal groups and industry.

Free, prior and informed consent

There are many outstanding questions regarding the interpretation of the Declaration's principles in Canada. For example, depending on how each provision is interpreted, the broad language of the Declaration may not fit in seamlessly with Canadian realities, such as the existence of historic and modern treaties, the distinctions among Aboriginal land use (ranging from the exercise of traditional Aboriginal rights to Aboriginal title), or the legal framework that has developed around the Crown's constitutional duty to consult. However, it is the concept of FPIC that seems to have received the greatest attention in Canada to date.

FPIC is a prominent feature of the Declaration, referenced in Articles 10, 11(2), 19, 28(1), 29(2) and 32(2). Of particular relevance to resource development are: Article 19, which provides that States shall "consult and cooperate in good faith" with Indigenous Peoples "in order to obtain" FPIC before adopting legislative or administrative measures that may affect them, and Article 32(2), which similarly provides that States shall "consult and cooperate in good faith" with Indigenous Peoples "in order to obtain" FPIC "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." Article 10 provides in more direct terms that "no relocation shall take place without" FPIC of the Indigenous Peoples concerned.

Depending on how it is interpreted, FPIC could go beyond the Supreme Court of Canada's current jurisprudence on the duty to consult, which has thus far limited the requirement of consent to established Aboriginal title. Even this is not an absolute veto, however, as the Court has recognized that the Crown could proceed without consent in the case of established Aboriginal title if the requirements of the justification test are met. The Declaration, by contrast, does not make a distinction between asserted or established rights, Aboriginal rights and Aboriginal title, or contain a clause similar in nature to the justification test.

In its effort to implement the Declaration and to reach an understanding of FPIC, Canada may draw upon a wide array of global resources for guidance, including: (i) approaches taken by other States; (ii) global guidance documents, including from organizations involved in the mining and resource development sectors; and (iii) approaches taken in international court decisions. Although the international community has yet to achieve consensus on FPIC, we observe that an increasingly prevailing perspective on FPIC is that in most circumstances, FPIC is considered an objective of a process of consultation and participation with Indigenous Peoples, rather than a veto right, except in certain limited circumstances.

(i) Other States

With a few exceptions, there has been little in the way of comprehensive implementation of the Declaration by other countries to date. Bolivia was the first country to implement the Declaration into law, expressly adopting it into law in its entirety in 2007 and recognizing it in its new constitution in 2009. Bolivia's constitutional interpretation of FPIC is that it requires good faith consultation with Indigenous Peoples prior to taking actions that may affect them. In other words, consent is viewed as an objective of consultation, but not a requirement or a veto. Similarly, in 2008, Ecuador adopted a new constitution, which recognized a range of indigenous rights, including the right to "free, prior and informed consultation."

Australia initially opposed adoption of the Declaration in 2007 (along with Canada, New Zealand and the United States) but released a statement of support for the Declaration in 2009. 10 It stated that the Declaration is non-binding and does not affect existing Australian law, but it would consider any future interpretations of FPIC. New Zealand also eventually expressed support for the Declaration in 2010, noting that its existing legal and constitutional frameworks define its engagement with the aspirational aspects of the Declaration. It stated that it will maintain its existing legal regimes for ownership and management of land and natural resources, including its own distinct processes for indigenous participation in decision-making, including consultation and in particular instances where consent is appropriate. 11

In contrast to Canada, both Australia and New Zealand supported the 2014 outcome document from the World Conference on Indigenous Peoples, setting the stage for them to consider potential steps towards implementation of the Declaration. Given the relatively comparable circumstances and concerns raised by these nations to Canada, we may be able to draw from their approaches towards implementation.

(ii) Organizations

Many organizations have been developing guidelines and standards with respect to the Declaration and FPIC that may also be instructive for Canadian government. These include UN working groups on Indigenous Peoples and human rights, international investment community organizations, such as the International Finance Corporation, and environment and industry organizations, such as the Forest Stewardship Council and the Boreal Leadership Council.

Notably, in 2015, the International Council on Mining & Metals (ICMM) updated its Indigenous Peoples and Mining Good Practice Guide.12 The Guide provides guidance to companies for mining-related activities that take place on or near indigenous lands. ICMM encourages members to "work to obtain the consent of indigenous communities" for projects located on "lands traditionally owned by or under customary use of Indigenous Peoples and are likely to have significant adverse impacts on Indigenous Peoples." The phrase, "work to obtain consent" means that all reasonable steps should be taken to secure FPIC of significantly and adversely impacted indigenous communities regarding the basis on which the project will go ahead. However, consent processes "should neither confer veto rights to individuals or subgroups nor require unanimous support from potentially impacted Indigenous Peoples (unless legally mandated)" and companies should not be required to agree to aspects not under their control.

In 2014, the UN Inter-Parliamentary Union released a Handbook for Parliamentarians to provide guidance to governments on implementation of the Declaration. 13 It recognizes the distinction in the Declaration between the duty of States to seek to obtain consent through consultation in certain circumstances, versus the duty of States to in fact obtain consent in others. It states that "obtaining consent becomes a requirement in some situations, including when Indigenous Peoples are subject to relocation, and in cases of storage or disposal of toxic waste on indigenous lands or territories," and potentially also "in matters of fundamental importance for the rights, survival, dignity and well-being of Indigenous Peoples."

(iii) FPIC in Latin American Courts

Governments may look to the interpretation of FPIC suggested by the former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, and jurisprudence from the Inter-American Court of Human Rights (IACHR) and South American domestic courts on Aboriginal consent in the absence of title to the lands. In a 2009 report, Mr. Anaya stated that FPIC should not be interpreted as a veto right, but as the objective of consultation. That said, he noted that consent might be required in some situations, including actions with a "significant, direct impact on Indigenous Peoples' lives or territories." 14 Such a broadly stated exception could, if implemented, include many mining and resource development projects in Canada.

In Saramaka People v. Suriname, the IACHR considered a challenge by the Saramaka people to several actions by the Republic of Suriname, including the issuance of logging and mining concessions to private companies without consultation. The IACHR considered the American Convention on Human Rights and the Declaration, and held that Suriname has a duty to consult the Saramaka people in good faith when planning development or investment projects in their territory, with the objective of obtaining consent. However, achieving consent was not required unless it was a large-scale development or an investment project that could "affect the integrity of the Saramaka people's lands and natural resources" and their ability to continue in their cultural practices, way of life, and their special connection with their traditional territory. 15

The Constitutional Court of Colombia has taken a similar approach. In T-129-11, it identified three situations where consent would be required:

"...the Court finds prior consultation and informed consent of the ethnic communities to be necessary in general to determine the least harmful alternative in those events that (i) involve the moving or displacement of communities for the work or project (ii) are related to the storage or dumping of toxic waste in ethnic lands, and/or (iii) represent a high level of social, environmental and cultural impact on an ethnic community, which may lead to endangering its existence, among other things." 16 (translated)

Conclusion

Although the international community, including stakeholders in Canada, has yet to achieve consensus on FPIC, we have observed that an increasingly prevailing perspective on FPIC at the international level is that in most instances, FPIC is viewed as the objective of a process of consultation and participation, rather than a veto right, which is limited to certain narrowly defined circumstances. This approach appears to be generally consistent with Canada's constitutional and legal framework with respect to the duty to consult and accommodate, and generally accepted corporate social responsibility/best practice approaches of government and industry to achieve a social licence to operate in Canada.

Even if Canada were to follow a similar approach to interpretation and implementation of FPIC and the Declaration, this still leaves unanswered questions, such as what efforts must be made to attempt to obtain consent in a given situation, what situations would require consent over consultation, and how the justification defence in Canadian law might apply. We also note that many other provisions of the Declaration, particularly those pertaining to land use and resources, should not be overlooked by government despite the spotlight on FPIC. Effective implementation of the Declaration in Canada will first require a consistent and coherent understanding of all provisions of the Declaration, as applied to the unique Canadian context.

Footnotes

1.http://pm.gc.ca/eng/ministerial-mandate-letters

2.http://pm.gc.ca/eng/minister-indigenous-and-northern-affairs-mandate-letter

3. The Truth and Reconciliation Commission's Calls to Action include 94 recommendations, including recommendation #43, which calls upon government to fully adopt and implement the UN Declaration as the framework for reconciliation, and #44 which calls upon government to develop a national action plan and measures to achieve the goals of the UN Declaration.

4.http://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142

5. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/2

6. http://www.canadainternational.gc.ca/prmny-mponu/canada_un-canada_onu/statements-declarations/other-autres/2014-09-22_wcipd-padd.aspx?lang=eng

7. http://www.cbc.ca/news/canada/newfoundland-labrador/premiers-commit-tocommission-recommendations-after-meeting-with-native-leaders-1.3152840

8. http://aboriginal.alberta.ca/documents/Premier-Notley-Letter-Cabinet-Ministers.pdf

9. In Canada's 2010 statement of support, it indicated that it felt confident that the principles expressed in the Declaration can be interpreted in a manner consistent with Canada's Constitution and legal framework.

10. http://www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf

11. http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100420_00000071/ministerial-statements-%E2%80%94-un-declaration-on-the-rights-of

12. http://www.icmm.com/document/9520

13. http://www.undp.org/content/dam/undp/library/Democratic%20Governance/Human%20Rights/RightsOfIndigenousPeoples-HandbookForParliamentarians-EN.pdf

14. James Anaya, "Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples", July 15, 2009, paras. 46-47.

15. Saramaka Interpretation at paras. 17, 37 & 42.

16. Constitutional Court of Colombia, 3 March 2011, Sentencia T-129/11, translated by Daniel Bonilla Maldonado in "Self-Government and Cultural Identify: The Colombian Constitutional Court and the Right of Cultural Minorities to Prior Consultation" in Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Colombia.

To view the original article please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions