Part I - Introduction

1. We have been asked to prepare a discussion paper analyzing the application in Canada of the principles of free, prior and informed consent for Indigenous peoples in respect of government measures that may affect them, and how this may comport with the similar domestic duty to consult, and if appropriate, accommodate Indigenous peoples’ interests.¹ This paper first reviews the principles of free, prior and informed consent under the 2007 United Nations Declaration on the Rights of Indigenous Peoples as well as Canada’s evolving position on those principles and what weight they may carry. Second, we review Canadian law on the duty to consult and, if appropriate, accommodate Indigenous rights and interests. Third, from this review of the applicable domestic and international law, we suggest an approach to meeting the letter and spirit of these standards in practice. This approach is grounded in the need to facilitate reconciliation among Canada’s governments, Indigenous peoples and the rest of Canadian society. We suggest:

1. building a relationship with Indigenous peoples founded on mutual respect and trust, focused on furthering each other’s long-term interests, and not simply concluding a transaction for short-term gain;
2. approaching the relationship through a model of partnership;²
3. providing Indigenous peoples with a meaningful opportunity to participate in both procedural and substantive dimensions; and
4. involving governments to help align parties incentives, and otherwise facilitate appropriate consultation processes.

2. The Declaration sets out a statement from the international community on the manner in which international human rights law should apply to Indigenous people. Among other things, the Declaration addresses circumstances in which states must consult Indigenous³ peoples when their rights or interests are potentially affected by a proposed measure, with the aim of obtaining their free, prior and informed consent, and circumstances in which states must refrain from action if that consent cannot be obtained. As part of Canada’s constitutional protection of Indigenous and treaty rights, Canadian courts have enunciated a duty to consult and, if appropriate, accommodate Indigenous peoples when their rights, claimed or established, are potentially affected by a government action. Courts have adjudicated a significant volume of cases alleging deficiencies in consultation.

3. These international and domestic legal principles share a common purpose: to protect Indigenous peoples’ underlying rights, to remedy the significant historical disadvantage and disenfranchisement Indigenous peoples have faced, and to provide the foundations for a more dignified ongoing relationship that reconciles Indigenous peoples’ self-government and other rights with non-Indigenous people and governments of Canada. Both sets of principles are intended to provide a foundation for more responsible development activity in which Indigenous people are able to participate and from which they may benefit. While the purpose of this paper is not to review the history of Canada’s relationship with Indigenous peoples, it is important to begin any discussion of Indigenous rights from this perspective.⁴

Canada’s historical relationship with Indigenous peoples

4. Canada’s history begins from one fundamental truth: when Europeans arrived in North America, they encountered Indigenous peoples who had lived here for many generations, since “time immemorial.”⁵ Those peoples established distinct cultures, societies, economies, forms of government and ways of life that pre-dated the arrival of Europeans and have continued, at least in some of these respects, after contact.

5. The British Crown often, but not always, entered into treaties with Indigenous peoples to define their mutual rights and obligations in what would become Canada, on a nation-to-nation basis. However, treaties were at times signed in the aftermath of violent confrontation or under forms of coercive pressure, and even when concluded, treaties were not always honoured in full or have been subject to linguistic misunderstanding. Though the French also settled in the lands that would become Canada, they did not formalize their relationship with Indigenous peoples through treaty.

6. For too long after Confederation, Indigenous peoples were treated as wards of the state, not citizens. They had no rights to vote, own property or move freely on and off reserves. Indigenous peoples were subject to an insufficient welfare system and were provided vastly inadequate education, health care, employment opportunities, potable water, sanitation, and other services. Many of these conditions continue in some places today.

7. From before Confederation, Canada operated a system of Indian Residential Schools. which forcibly removed Indigenous children from their families and communities in the aim of assimilating them into Canadian society. Families and communities were torn apart. Children were subject to abuse. At least 3,200 deaths were recorded, though burial records are scant and the actual total is likely higher. These schools have been variously described as “one of the gravest injustices in Canadian history,”⁶ “the most disgraceful, harmful, racist experiment ever conducted in our history,”⁷ and “cultural genocide.”⁸ The final such school closed in 1996. Their emergence as a public issue is discussed below.

The modern imperative of reconciliation

8. More recently, there has been growing recognition by Canadian governments and citizens of the need to heal, improve, and repair the relationship with Indigenous peoples. A first significant step was taken in 1982, when the Constitution was amended to protect existing Indigenous and treaty rights. Constitutionalization has given greater weight to enforcement of Indigenous rights.

9. In the early 1990s, the Indian Residential Schools emerged as a public issue as survivors began to tell their stories. Through the 1990s and early-2000s, approximately 15,000 survivors commenced individual civil suits against the federal government and churches who ran residential schools; 23 class actions were launched. In the face of this, in May 2005, the federal government initiated a sea change in its policy toward survivors. It announced a comprehensive approach to resolving this legacy, including providing financial compensation for every survivor and settlement of legal claims.

10. As part of the settlement, the government established a Truth and Reconciliation Commission to educate Canadians on what happened, obtain records, assemble archives, and provide all concerned with an opportunity to tell their stories. In December 2015, the Commission released its final report, a multi-volume statement of its activities and methodology, the history of residential schools, their legacy and the issues and challenges that lie ahead.⁹

11. As part of this report, the Commission included 94 “Calls to Action” to reorient the relationship between Indigenous peoples and Canada.¹⁰ Their unambiguous purpose is reconciliation. It is worthwhile to emphasize the Commission’s definition of reconciliation:

The Commission defines reconciliation as an ongoing process of establishing and maintaining respectful relationships. A critical part of this process involves repairing damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change. Establishing respectful relationships also requires the revitalization of Indigenous law and legal traditions. It is important that all Canadians understand how traditional First Nations, Inuit and Métis approaches to resolving conflict, repairing harm, and restoring relationships can inform the reconciliation process.¹¹

12. The process of reconciliation is still beginning in earnest in Canada. There is much ground that all levels of government in Canada, Indigenous peoples and the rest of Canadian society have to cover. We approach the topic of this paper—the application of the international principles of free, prior and informed consent in Canada—in light of this history and through the lens of reconciliation. While this topic asks for legal analysis, it cannot be divorced from this history or broader social context.

13. The international principles of free, prior and informed consent have been incorporated into various corporate codes of conduct, and the Truth and Reconciliation Commission recommended the implementation of the Declaration by all Canadian governments and the private sector.¹² But the precise manner in which the principles of free, prior and informed consent apply in Canada is in its embryonic stages of development. It has spurred a lively debate regarding their scope, reach and implications for Canadian law and policy. The Canadian business community and Indigenous peoples alike would benefit from further direction from all levels of government. This paper does not advocate for a particular position, but contributes an approach in light of the purpose of reconciliation, discussed in Part IV.

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¹ This paper was authored by a team led by The Hon. Frank Iacobucci and including John Terry, Valerie Helbronner, Michael Fortier, and Ryan Lax. The views expressed in this paper are those of the authors based on their years of practice and are not to be taken as the views of any clients or other members of Torys LLP.

² By “partnership” in this context we do not necessarily mean a legal partnership. Rather, we intend to emphasize the importance of understanding Indigenous consultation and, if appropriate, accommodation as a process in which two or more groups come together in the aim of mutual benefit in a manner that accommodates each other’s interests.

³ For the purpose of this paper we have used the term “Indigenous” when speaking about Indigenous peoples generally, and "Indigenous" (referrung to First Nations, Inuit and Métis peoples in Canada) when speaking directly about section 35 of the Constitution Act, 1982 or Canadian Jurisprudence.

⁴ This history is discussed in greater depth in other publications. See for example: The Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg, MB: The Truth and Reconciliation Commission of Canada, 2015) (“Truth and Reconciliation Commission”); The Hon. Frank Iacobucci, “The Indian Residential School Legacy of Canada: A Tragic Past, A Hopeful Future” (The 2015 Larkin-Stuart Lecture delivered at the George Ignatieff Theatre, Trinity College, 3 November 2015) [publication forthcoming].

⁵ See e.g. Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 at para. 2 (“Calder”).

⁶ Mayo Moran & Kent Roach, “Introduction: The Residential Schools Litigation and Settlement” (2014) 64:4 U.T.L.J. 479 at 480.

⁷ Liberal Justice Minister Irwin Cotler, cited in George Jonas, “Residential schools were a savage solution to a lingering problem” National Post (16 January 2013), online: National Post, http://news.nationalpost.com/full-comment/george-jonas-residential-schools-were-a-savage-solution-to-a-lingering-problem.

⁸ Truth and Reconciliation Commission, supra note 4 at 1; The Right Honourable Beverley McLachlin, P.C., “Reconciling Unity and Diversity in the Modern Era: Tolerance and Intolerance” (Global Centre for Pluralism Annual Pluralism Lecture 2015, delivered at the Aga Khan Museum, 28 May 2015), online: Global Centre for Pluralism, http://www.pluralism.ca/images/PDF_docs/APL2015_BeverleyMcLachlin_Lecture.pdf.

⁹ Truth and Reconciliation Commission, supra note 4.

¹⁰ Ibid. at 319-39.

¹¹ Ibid. at 16-17.

¹² Ibid. at 319-39; “The Equator Principles (June 2013)” Equator Principles, online: Equator Principles, http://www.equator-principles.com/resources/equator_principles_III.pdf (“Equator Principles (June 2013)”); “The Ten Principles of the U.N. Global Compact” United Nations Global Compact, online: United Nations Global Compact, https://www.unglobalcompact.org/what-is-gc/mission/principles.

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