When Is Consent not Consent?


Minister Carolyn Bennett, on behalf of the Federal Government announced on May  10th,  at the United Nations Permanent Forum on Indigenous issues that it was fully embracing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) within the constitution of Canada..

Within the constitution of Canada caught my attention immediately, as I knew that meant limitations, it meant doing things the way the Federal Government always does things.  Specifically what Minister Bennett said was “We intend nothing less than to adopt and implement the Declaration in accordance with the Canadian Constitution.”  Then she went on to talk about Free, Prior and Informed Consent

Canada believes that our constitutional obligations serve to fulfill all of the principles of the declaration, including “free, prior and informed consent.”  We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among partners…it means nothing less than a full engagement and how to move forward with adoption and implementation done in full partnership with First Nations

Minister Jody Wilson-Raybould in her statement to the Permanent Forum on Indigenous peoples on May 9th, 2016 said the following:

“Participation in real decision-making is at the heart of the Declaration’s concept of free, prior and informed consent – that Indigenous peoples must be able to participate in making decisions that affect their lives.”

Minister Wilson-Raybould describes FPIC as “participation” and Minister Bennett describes it as “engagement” both of which are a long way from consent. 

Follow up comments from the Minister of Indigenous Affairs, Carolyn Bennett which I am sure was to appease industry has said that Free Prior and Informed consent (FPIC) does not give First Nations a veto  over proposed projects in their territories.  She relies on National Chief Perry Bellegarde who is not an expert in international law, nor was he involved in the development of UNDRIP.  She also relied on James Anaya, who is the former United Nations Rapporteur on the Rights of Indigenous Peoples, and Paul Joffe, a lawyer who in the past did work for some First Nations on UNDRIP. We could ask many other people on their views who do not agree with these men. Most importantly, she did not talk to the First Nations across Canada on what they think FPIC means. 

 What concerns me immediately is that the Trudeau Government says they want a new relationship with First Nations on a government-to-government basis.  They want to work with First Nations on implementing UNDRIP.  But before they even begin working with First Nations they have become positional.  No vetoes on development.  They have put First Nations backs against the wall and expect them to work together in a good way.  This is definitely not a good way to forge lasting relationships or work on reconciliation.  Shouldn’t free, prior and informed consent be a matter for discussion and definition collectively?  Real Government-to-government way of doing business?

On Tuesday July 12, 2016, at AFN AGM, Minister Jody WIlson Raybould put forward the Liberal government position that UNDRIP won't be adopted directly into Canadian Law. There are many ways that UNDRIP can be implemented without just putting it into law as has been proposed by Romeo Saganash in his private members bill. So again, the government has made decisions without coming to the First Nations and saying how can we implement UNDRIP and look at all the options and make a decision on how that could be done in the most effective way.  Just took that option off the table without discussing the pros and cons of doing it. 

What does Consent Mean?  Veto Mean?

Consent in its simplest meaning is to agree, approve or give permission.  Veto in its simplest form as a verb means to reject, turn down, throw out, or dismiss.  Veto in its use as a noun means a constitutional right to reject or refuse a decision or proposal from a law making body.  In its simplest form, veto could mean not giving consent or the term veto can be used to exercise a constitutional right as well. When used in everyday context, consent can be given for an operation, to buy a car or for a loan and consent is well understood. Now the Canadian government says consent doesn't mean  yes or no, it doesn't mean a veto and I wonder if this is a new definition of consent. Their definition of consent would read something like this:  First Nations consent:  If First Nations do not give their consent on a proposed development on their land, it is only an indication of their wishes and the federal government do not have to take it seriously as First Nations do not have a veto". There is something very wrong with that thinking yet that is what the federal government is saying. Of course that is the simplified version, they still the duty to consult and accommodate and balance the public interest and fulfil their fiduciary obligation but they have the final say always and that is what they mean about no veto.

The courts in relation to First Nation people have not defined what they mean by veto when they have used it.  UNDRIP does not use the term Veto. I refer to:

 Article 32

  1. 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 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.

(UNDRIP Articles 10, 11, 19, 28 and 29 also use the term FPIC. These articles deal with proposed legislation or administrative action, moving indigenous peoples from their lands, redress for taking of cultural/spiritual property, lands and resources, and storage or disposal or hazardous materials on indigenous lands.)

Interestingly enough, UNDRIP does not use the terms “consult and accommodate” or “meaningfully engage” or “participate” either, so FPIC necessarily goes beyond those terms. 

 Canadian Courts on Consent

The Canadian Courts have talked about the right of consent.  It first came up in the Delgamuukw decision [1997] 3 SCR 1010, before the Supreme Court of Canada at paragraph 168

 “Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands…”

The courts clearly stated that consent is required when laws affect rights and their lands.  The courts further elaborated on this in the Haida Decision again before the Supreme Court of Canada. {2004] 3 SCR 511 paragraph 48

This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim.  The Aboriginal consent spoke of in Delgamuukw is appropriate in cases of established rights, and then by no means in every case.  Rather what is required is a process of balancing interests of give and take.”

Haida said consent could be used where there were established rights but not in every case.

Finally, in the Tsilhqot’in case before the Supreme Court of Canada [2014] 2 SCR 257 there are some comments that are very relevant.

Paragraph 86: “First, the Crown’s fiduciary duty means that the government must act in a way that respect the fact that Aboriginal title is a group interest that inheres in present and future generations.  The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generation of the benefit of the land.”  See also paragraph 74.

 The court adds an obligation to both Crown and First Nations that the land cannot be so impaired so that future generations would be deprived of the use of the land.  For example in Site C, as the land will be inundated with water where the reservoir will be made, there is no future use of that land. Or if land is so inundated with fracking, pipelines and oil and gas, that there is nothing left, the governments have failed to live up to their duties for future generations. They must now take this into consideration when approving developments in First Nations territories and need First Nation consent to decide on that.

What is most telling is paragraph 97:

 "I add this.  Governments and individual propose to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group. “

Clearly, the issue of consent has not been totally defined by the Supreme Court of Canada, but has said there could be times when consent can be required. Yet, the government of Canada has said there will be no veto.  Interesting that when Justin Trudeau was campaigning he made the commitment on APTN that if a First Nation said no to a development, it would mean no.  Obviously he and his government have backed down on a campaign promise that First Nations relied on.

So when does consent not mean consent?  It seems it is only when it is applied to First Nations and development on their lands and resources within their territories.  This is a very colonial attitude and shows no progress in government-to-government relations that Prime Minister Trudeau promised.  It shows further that this government is going to be very positional moving into any sort of discussions with First Nation on the implementation of UNDRIP.  

When there is uncertainty in law, that is the time to sit down and work things out.  What conditions require the FPIC of First Nations?  All projects? Some Projects? When it destroys rights or affects future generations?  Those rich discussions need to be with each First Nation as it is their territories that will be affected.  It is not up to the Bellegardes’, Anaya’s and Joffe’s of the world to define FPIC but to the Nations that have rights and title at stake. Of course we can always wait for the right court case that will say when consent is required but that could take years and a lot of uncertainty.

Making grandiose statements at the United Nations is one thing, working on a government-to-government relationship with First Nations is another, the Liberals have got to learn how to do it right especially in relation to Free, Prior and Informed Consent. Building solutions together should be the new norm. Responding to government, policies, laws, documents has never worked and is not the answer. .








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