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.
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)
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.
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.
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.
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.
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