Part II - The Principles of Free, Prior and Informed Consent

Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples

Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples

History and development of the principles of free, prior and informed consent

14. The concept of free, prior and informed consent was first articulated in the Indigenous and Tribal Peoples Convention, 1989 (the ILO Convention) negotiated under the auspices of the International Labour Organization.13 Article 16 of the ILO Convention guarantees to Indigenous peoples the right not to be removed from their lands unless necessary, and with their free and informed consent. If consent cannot be obtained, the ILO Convention requires that Indigenous peoples should not be removed without a public consultation process. It further establishes a right to return to the lands when possible, and if not possible, to be provided with full compensation.14 Article 15 also confirms Indigenous peoples’ right to the natural resources on their lands. However, to date, the ILO Convention has been ratified by only 22 countries, not including Canada.15

15. The human rights bodies of the Organization of American States (the OAS) have developed a complementary set of rights jurisprudence over the last fifteen years. The Inter-American Commission on Human Rights and Court of Human Rights16 has recognized Indigenous peoples’ rights to land, natural resources found on traditional territories, and ultimately to free, prior and informed consent with regard to large-scale development projects impacting their survival.17 These rights are grounded in the rights to protection of property, culture and due process contained in the American Declaration on the Rights and Duties of Man (the American Declaration) and the American Convention on Human Rights (the American Convention).18 While Canada has been a member of the OAS since 1990, it has not ratified, and therefore is not bound by, the American Convention. The American Declaration is not binding on OAS member states, but has been relied on by OAS human rights bodies as an interpretative aid in assessing the conduct of member states.

The United Nations Declaration on the Rights of Indigenous Peoples

16. The United Nations General Assembly adopted the U.N. Declaration on the Rights of Indigenous Peoples (the Declaration) in 2007. The Declaration was negotiated over 25 years by states, Indigenous groups, human rights organizations, and others.19 143 member states voted in favour of its adoption, while Australia, Canada, New Zealand, and the United States were the only four votes against. However, each country subsequently endorsed the Declaration in some form.20

The principles of free, prior and informed consent

17. The Declaration contains several provisions incorporating the language of “free, prior and informed consent.” The most general is Article 19, which obliges states to “consult and cooperate in good faith with Indigenous peoples… in order to obtain their free, prior and informed consent before adopting and implementing” measures that may affect them.21

18. Other provisions of the Declaration set out more specific obligations requiring degrees of “free, prior and informed consent” in specific contexts:

  1. Article 32 obliges states to “consult and cooperate in good faith with indigenous peoples… 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 resource exploitation.22
  2. Article 28 establishes a right to redress for indigenous peoples for lands, territories and resources that they have traditionally owned, occupied or used, “which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”23
  3. Article 29 requires states to take effective measures to avoid storage or disposal of hazardous materials “in the lands or territories of indigenous peoples without their free, prior and informed consent.”24
  4. Article 10 protects Indigenous peoples from being “forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”25

19. The recitals and more general provisions in the Declaration provide interpretive context. The recitals state the United Nations’ concern “that indigenous peoples have suffered from historic injustices as a result of… their colonization and dispossession of their lands, territories and their resources,” and the intention that the rights in the Declaration will “enhance harmonious and cooperative relationships between the State and indigenous peoples.”26 Article 1 states that Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms.27 Articles 3 and 4 state that Indigenous peoples have the right to self-determination, including to freely determine their political status and freely pursue their economic, social and cultural development, and to autonomy or self-government regarding internal or local affairs.28 Article 43 emphasizes that the rights contained in the Declaration constitute “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”29

20. The Declaration also recognizes that state practice differs, that the situation of Indigenous peoples varies across regions and countries, and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration in applying the rights it sets out.30 Of special significance, article 46(2) makes clear that the Declaration’s provisions are not absolute, but “subject only to such limitations as are determined by law and in accordance with international human rights obligations” on the condition that they are “non-discriminatory,” “necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others” and for “meeting the just and most compelling requirements of a democratic society.”31

What is required by the principles of free, prior and informed consent?

21. The United Nations Special Rapporteur on the Rights of Indigenous Peoples is an expert in the field of Indigenous rights appointed by the U.N. Human Rights Council to examine obstacles to protecting rights of Indigenous peoples, to review alleged violations of Indigenous rights, and to make recommendations on appropriate measures to prevent and remedy violations.32 In carrying out this mandate, the Special Rapporteur submits to the U.N. Human Rights Council both general reports on the conduct of his or her activities and specific reports in respect of individual countries. The resolutions appointing the Special Rapporteur specifically direct that the Declaration form part of the normative foundation of his or her mandate. The first Special Rapporteur was S. James Anaya, an American Indigenous and human rights law scholar, who served until 2014.34

22. Consultation with the objective of consent: The Special Rapporteur has consistently emphasized the importance of good faith dialogue and meaningful consultation in the aim of achieving consent as the primary objective of the principles of free, prior and informed consent. The purpose is to “reverse historical patterns of imposed decisions and conditions of life that have threatened the survival of indigenous peoples.”35 In this way, the “principles of consultation and consent” have the objective of “avoiding the imposition of the will of one party over the other,” and “striving for mutual understanding and consensual decision-making.”36

23. In this context, the Special Rapporteur has emphasized that the obligation to carry out consultations with Indigenous peoples in “good faith… in order to obtain their free, prior and informed consent” should not be regarded as a “veto power” that Indigenous peoples hold over decisions that may affect them. Instead, the Declaration establishes “consent as the objective of consultations with indigenous peoples,” not a free-standing right in all circumstances.37 While a veto enables arbitrary or uninformed decisions and inhibits meaningful consultation, consultation in the aim of achieving consent emphasizes meaningful and informed dialogue and accommodation.

24. The importance of achieving free, prior and informed consent varies depending on the circumstance. The character of a consultation procedure is shaped by “the nature of the [Indigenous] right or interest at stake” and “the anticipated impact of the proposed measure.”38 The Special Rapporteur has stated that a significant impact on Indigenous peoples’ lives or territories “establishes a strong presumption that the proposed measure should not go forward without… consent.”39 Circumstances where consent may be necessary are discussed at paragraphs 30 to 32, below.

25. The Special Rapporteur has stated that most consultation processes require certain key elements in order to be considered free, informed and in good faith. First, in designing a consultation process, attention must be paid to the implications of power imbalances that may exist between Indigenous groups and the corporations or governments engaging in consultation, and if necessary deliberate steps should be taken to address them.40 This may include providing resources, support or independent legal advice to Indigenous groups. The consultation procedure itself should be the product of consensus.41

26. Second, Indigenous groups affected must have full access to information regarding the project, including technical studies, financial plans, environmental assessments, and other relevant documents that the context demands. Indigenous groups may also be involved in the conduct of those studies.42

27. Third, consultations should take place before the government authorizes or a company undertakes or commits to undertake any activity related to the project within Indigenous territory or other lands subject to Indigenous rights.43 In practice, consultation may have to take place at multiple stages of a project, from its initial proposal, through exploration, development, and operation, to its closure.44 Indigenous groups should be consulted from the earliest stages to build trust and cooperation. Starting the consultation process at later stages often engenders distrust, making agreement or consent more difficult to achieve.45

28. Fourth, Indigenous peoples should be consulted through their own representative institutions, leadership and decision-making structures.46 This gives recognition to Indigenous peoples’ own choices and forms of self-government, thereby according the consultation process greater legitimacy. The process of determining whom to consult may not be straightforward in every context, as it can be the case that multiple individuals or institutions claim to represent a group.

29. In circumstances in which consent cannot be obtained, the Special Rapporteur recommends that the state not move forward with the project without satisfying two conditions: first, the state must demonstrate that the rights of affected Indigenous peoples will be adequately protected; and second, that the impacts of the project will be mitigated to the extent possible.47 Protection and mitigation may in part involve compensating Indigenous peoples for rights that are lost.48 If these two conditions cannot be adequately satisfied, the state must justify the infringement by balancing the rights at issue with the need to respect other human rights and the public interest in “meeting the just and most compelling requirements of a democratic society.”49 The Special Rapporteur has expressed doubt that a purely commercial project would satisfy this criterion.50 While the question of what constitutes a purely commercial venture has not been explored in depth, the concept likely relates to the degree to which Indigenous peoples benefit from the project, if at all. It is important to note that, in the domestic Canadian context, as discussed at paragraphs 61 to 65, the degree to which this analysis applies may differ as between proven Aboriginal title and rights on the one hand, and unproven rights or interests on the other.

30. Consultation where the impact of a project is extreme and there is no consent: The Declaration recognizes two situations of extreme impact on Indigenous peoples requiring their free, prior and informed consent. Articles 10 and 29 prohibit the storage or disposal of hazardous materials on Indigenous lands, and the relocation of Indigenous peoples, without their free, prior and informed consent.51 This mandatory language stands in contrast to the more general obligation to “consult… in order to obtain” free, prior and informed consent found in Article 19 and elsewhere. In these circumstances it is appropriate to think of consent as a requirement or prerequisite to proceeding with a project, rather than the end goal of the consultation process.52

31. There is some suggestion from the Special Rapporteur that consent may be similarly required in other circumstances of extreme impact on Indigenous peoples analogous to the two examples entrenched in the Declaration. For example, the Special Rapporteur references with approval the Inter-American Court of Human Rights case involving the Saramaka people of Suriname, in which the Court held that, for a large-scale project that may severely impact the survival of an Indigenous group (in this case, logging and mining), the state has the duty to obtain free, prior and informed consent.53

32. However, the precise scope of the principles of free, prior and informed consent, and the issue of whether, and in what circumstances, Indigenous peoples’ consent may be required is still in its embryonic stages of development and subject to future interpretation and development by governments and international bodies.

When does the obligation arise?

33. As the Declaration is still relatively new, there is not a well-developed body of reports or examples as to when these consultation and consent obligations arise. However, the Special Rapporteur has provided some guidance. He has stated that the duty to consult with the aim of achieving consent arises whenever a state decision may affect Indigenous peoples in ways not felt by others in society. This occurs when interests and rights particular to Indigenous peoples are implicated.54 The Special Rapporteur provides the example that land or resource use regimes may apply broadly, but affect Indigenous rights and interests in unique ways.55

34. The Special Rapporteur has also stated that the duty to consult “arises whenever [Indigenous peoples’] particular interests are at stake, even when those interests do not correspond to a recognized right to land or other legal entitlement.”56 The duty would arise “in respect of resources owned by the State pertaining to the lands that the peoples concerned occupy or otherwise use, whether or not they hold ownership title to those lands.”57

What is the impact of this obligation?

35. Because the Declaration is a United Nations resolution rather than a treaty, its provisions, including those respecting the principle of free, prior and informed consent, are not binding as a matter of international or Canadian law.58

36. However, the Declaration is widely viewed as representing international consensus regarding the minimum set of rights to be accorded to Indigenous peoples.59 Its pro-visions are built upon decades of work in the field, reflected in other human rights instruments and jurisprudence, and “decades of advocacy and struggle by Indigenous peoples themselves.”60 As already noted, the Declaration has been widely adopted by U.N. member states.61

37. Further, since its enactment, the obligations of free, prior and informed consent contained in the Declaration have been incorporated into other instruments relating to private sector conduct. The United Nations Global Compact, the world’s largest corporate sustainability initiative, includes the Declaration by reference among its principles.62 The International Finance Corporation (IFC), the arm of the World Bank Group that offers investment, advisory and asset management services to encourage private sector economic development in developing countries, mandates compliance with the obligations of free, prior and informed consent in its Performance Standard 7: Indigenous Peoples. Any private sector client seeking to make an investment with the support of the IFC must therefore comply with these principles through the life of the project.63 Similarly, the obligation of free, prior and informed consent has been incorporated into the Equator Principles, a financial industry benchmark for determining, assessing, and managing environmental and social risks in projects, through their alignment with the IFC Performance Standards.64 An overwhelming majority of major financial institutions in Canada have adopted these principles, and annually report on their compliance with them.65 The Equator Principles incorporate IFC Performance Standard 7 by reference.66

Positions of the Government of Canada and the Truth and Reconciliation Commission

38. When the Declaration was adopted by the United Nations General Assembly in 2007, Canada, along with Australia, New Zealand and the United States, voted against it. Canada expressed concern that wording in the Declaration respecting Indigenous peoples’ rights to the lands, territories and resources they traditionally owned, occupied or otherwise used, as well as the obligation of free, prior and informed consent, would conflict with domestic law.67 Specifically, Canada expressed concern that these provisions in the Declaration would conflict with existing guarantees under section 35 of the Constitution Act, 1982, or that these and other provisions might call into question the finality of Canada’s existing Aboriginal treaties and land claims agreements.68

39. Canada changed its position in 2010 and endorsed the Declaration, but qualified its endorsement by stating its view of the Declaration as a “non-legally binding aspirational document.”69 Canadian courts have held that the Declaration is not legally binding in Canada.70 However, the new federal government has committed to the full implementation of the Declaration.71 On May 9, 2016, Canada announced that it is formally removing its “permanent objector” status and confirmed plans to fully adopt and implement it.72

40. These changes are, in part, in response to the Final Report of the Truth and Reconciliation Commission of Canada, an independent Commission established by the federal government as part of the Indian Residential Schools settlement.73 The Commission recommended the full implementation of the Declaration. The Commission’s Calls to Action 43 and 44 call on federal, provincial, and territorial governments to fully adopt and implement the Declaration as the framework for broader reconciliation with Indigenous peoples, and to develop a national action plan and other concrete measures for that implementation.74

41. In its Call to Action 92, the Commission called upon the corporate sector in Canada to adopt the Declaration as a reconciliation framework and apply its principles, norms and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources.75 The Commission stated that, while the duty to consult and accommodate is placed on the Crown, and therefore binds the federal and provincial and territorial governments, in practice, procedural elements of this duty may be delegated to “industry proponents seeking a particular development.” It also noted that the business risk associated with the legal uncertainty surrounding the duty to consult has often motivated industry proponents to negotiate mechanisms to ensure that Indigenous peoples benefit directly from development in their territories.76 The Commission stated that economic reconciliation involves working in partnership with Indigenous peoples so that their traditional lands and resources are developed in culturally respectful ways that give full recognition to their rights.77 In the Commission’s view, the only way to do this is by establishing constructive, mutually beneficial relationships.

42. While the federal government has now committed to the full implementation of the Declaration, it is not evident what precise changes to Canadian law may be required, if any.78 This is a live issue currently being considered by governments across the country. On April 4, 2016, Romeo Saganash, the member of parliament from Abitibi-Baie-James-Nunavik-Eeyou, presented a private member’s bill to the House of Commons to establish a collaborative process for the full implementation of the Declaration.79 In announcing Canada’s plan to implement the Declaration, Minister of Indigenous and Northern Affairs Carolyn Bennett stated, “Adopting and implementing the Declaration means that we will be breathing life into Section 35 of Canada’s Constitution, which provides a full box of rights for Indigenous peoples.”80

43. It is notable that the Special Rapporteur’s 2014 report on “The situation of indigenous peoples in Canada” commended Canada for its “well-developed legal framework” and several “policy initiatives that in many respects are protective of indigenous peoples’ rights.”81 The key areas of concern highlighted by the Special Rapporteur are those well-known to Canadians and in large part acknowledged by Canada: the well-being gap between Indigenous and non-Indigenous people; persistently unresolved claims to treaty and Aboriginal rights; the vulnerability of Indigenous women and girls to abuse; and distrust between Indigenous peoples and the provincial and federal governments.82 He also commented on ways to improve the consultation process, emphasizing in particular the need to ensure that the consultation process begins at earlier stages of project development.83

44. Notably, the Special Rapporteur did not focus significant attention on any differences in scope that may exist between guarantees under Canadian law and the provisions of the Declaration. However, he expressed the view that, as a general rule, resource extraction projects should not proceed without both adequate consultation and the free, prior and informed consent of the Indigenous peoples concerned.84

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13 Indigenous and Tribal Peoples Convention, 1989 (No. 169) (27 June 1989), Geneva, 76th ILC session (entered into force 5 September 1991); A prior ILO Convention, No. 107, contained a much weaker antecedent to the FPIC right (Article 12) easily subordinated to government interests, economic development and national laws. Indigenous and Tribal Populations Convention, 1957 (No. 107) (26 June 1957), Geneva, 40th ILC session (entered into force 2 June 1959).

14 Indigenous and Tribal Peoples Convention, 1989 (No. 169) (27 June 1989), Geneva, 76th 1LC session (entered into force 5 September 1991) at art. 16.

15 “Ratifications of C169 Indigenous and Tribal Peoples Convention, 1989 (No. 169)” International Labour Organization (27 June 1989), Geneva, 76th ILC session (entered into force 5 September 1991), online: International Labour Organization, http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314; Most other settler countries and former colonies similarly refrained from ratifying the Convention, including Canada, the U.S., Australia and New Zealand.

16 The Inter-American Commission on Human Rights addresses human rights conditions in the 35 member states of the OAS, including Canada. It observes and reports on human rights conditions through site visits, holds thematic hearings on specific areas of concern, and requests the adoption of precautionary or remedial members to protect individuals at risk. Individuals may submit complaints for the Commission to investigate. By contrast, the Inter-American Court of Human Rights hears specific cases of violations of human rights brought by individuals or groups in one of the 20 countries that has accepted its jurisdiction, which Canada has not done. “Inter-American Human Rights System,” International Justice Resource Center, online: International Justice Resource Center, http://www.ijrcenter.org/regional/inter-american-system/.

17 Tara Ward, “The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within International Law” (2011) 10:2 Nw. J. Int'l Hum. Rts. 54 at 61 (“Ward”); Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001), Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 79; Mary and Carrie Dann v. United States (2002), Inter-Am. Comm’n H.R., Case 11.140, Report No. 75/02, OEA/Ser.L/V/II.118, doc. 5 Rev, para. 1; Maya Communities of the Toledo District v. Belize (2004), Inter-Am. Comm’n H.R., Case 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 doc. 5, Rev. 1 at para 194; Saramaka People v. Suriname (2007), Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 174 at paras. 131, 136; Kichwa People of Sarayaku v. Ecuador (2002), Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 245.

18 Ward, supra note 17 at 61; Alex Page, “Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System” (2004) 4:2 Sustainable Development Law and Policy at 16; OAS, Conference of American States, Ninth International, American Declaration on the Rights and Duties of Man, OEA/Ser.L./V.II.23, doc. 21, rev. 6 (1948) at arts. 13, 23, 26; OAS, Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 1144 U.N.T.S. 123 (1969) at arts. 21, 26.

19 United Nations Declaration on the Rights of Indigenous Peoples, GA. Res. 61/295, UN GAOR, 61st Sess., Annex, UN Doc. A/RES/61/295 (2007) (“United Nations Declaration on the Rights of Indigenous Peoples (2007)”); Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, General Assembly 64th Sess., UN Doc. A/64/338 (2009) at para. 40 (“Report of the Special Rapporteur (2009)”).

20 Report of the Special Rapporteur (2009), supra note 19 at para. 41. In general terms, these countries initially opposed the Declaration because of concerns regarding the scope of some of the rights it contains and how those rights may interact with domestic legal systems, including the principles of free, prior and informed consent, and the degree to which the Declaration provides rights to lands now owned by others. Canada’s initial concerns are discussed in greater detail below.

21 United Nations Declaration on the Rights of Indigenous Peoples (2007), supra note 19 at Article 19 [emphasis added].

22 Ibid. at Article 32(2) [emphasis added].

23 Ibid. at Article 28(1) [emphasis added].

24 Ibid. at Article 29(2) [emphasis added].

25 Ibid. at Article 10 [emphasis added].

26 Ibid. at recitals pp. 2-4.

27 Ibid. at Article 1.

28 Ibid. at Articles 3-4.

29 Ibid. at Article 43.

30 Ibid. at recitals p. 4.

31 Ibid. at Article 46(2).

32 Ibid. at Article 28.

33 Human rights and indigenous peoples: mandate of the Special Rapporteur on the rights of indigenous peoples, HRC Res. 15/14, 15th Sess., UN Doc. A/HRC/15/60.

34 In June 2014, Victoria Tauli-Corpuz, a Philippine indigenous rights scholar and activist, and former chair of the United Nations Permanent Forum on Indigenous Issues, was appointed to replace him. As her appointment is still recent, there are few reports that she has produced. Thus far Ms. Tauli-Corpuz has focused more on gender and Indigenous rights, an important topic but further from the subject of this paper. For that reason, most of the Special Rapporteur’s reports discussed in this paper focus on Mr. Anaya’s work.

35 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, HRC, 12th Sess., UN Doc. A/HRC/12/34 (2009) at paras. 46, 49 (“Report of the Special Rapporteur, HRC (2009)”).

36 Ibid. at para. 49.

37 Ibid. at para. 46.

38 Ibid. at paras. 46, 47.

39 Ibid. at para. 47.

40 Report of the Special Rapporteur on the rights of indigenous people, HRC, 24th Sess., UN Doc. A/HRC/24/41 (2013) at para. 63 (“Report of the Special Rapporteur, HRC (2013)”).

41 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 47.

42 Report of the Special Rapporteur, HRC (2013), supra note 40 at paras. 65-66.

43 Ibid. at para. 67.

44 Ibid. at para. 67.

45 Ibid. at para. 68.

46 Ibid. at paras. 70-71.

47 Report of the Special Rapporteur on the rights of indigenous people, GA. 66th Sess., UN Doc. A/66/288 (2011) at para. 86 (“Report of the Special Rapporteur (2011)”).

48 Ibid. at para. 98.

49 United Nations Declaration on the Rights of Indigenous Peoples (2007), supra note 19 at art. 46.

50 Report of the Special Rapporteur, HRC (2013), supra note 40 at para. 35.

51 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 47; Report of the Special Rapporteur (2011), supra note 47 at paras. 83-84.

52 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 47; Report of the Special Rapporteur on the rights (2011), supra note 47 at paras. 83-84.

53 Saramaka People v. Suriname (2007), Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 172, at para. 134; Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 47.

54 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 43; Report of the Special Rapporteur (2011), supra note 47 at paras. 81-83.

55 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 43; Report of the Special Rapporteur (2011), supra note 47 at paras. 81-83.

56 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 44.

57 Ibid.

58 Report of the Special Rapporteur, HRC (2009), supra note 35 at paras. 38-40; Report of the Special Rapporteur (2011), supra note 47 at para. 68; Report of the Special Rapporteur on the rights of indigenous people, GA. 68th Sess., UN Doc. A/68/317 (2013) at para. 61; see also Snuneymuxw First Nation v. School District No. 68, 2014 BCSC 1173; CAW-Canada, Local 444 v. Great Blue Heron Gaming Co., 2007 ONCA 814; Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900; James Anaya, Symposium on Patrick Macklem’s The Sovereignty of Human Rights (19 April 2016); Patrick Macklem, The Sovereignty of Human Rights (New York: Oxford University Press, 2015) at 135.

59 Report of the Special Rapporteur on the rights of Indigenous people, GA. 68th Sess., UN Doc. A/68/317 (2013) at para. 63.

60 Report of the Special Rapporteur, HRC (2009), supra note 35 at paras. 38-40; Report of the Special Rapporteur (2009), supra note 19 at paras. 40-41; Report of the Special Rapporteur (2011), supra note 47 at paras. 67, 69.

61 Report of the Special Rapporteur (2011), supra note 47 at paras. 35, 67.

62 “Indigenous Peoples” United Nations Global Compact, online: United Nations Global Compact, https://www.unglobalcompact.org/what-is-gc/our-work/social/indigenous-people.

63 “Performance Standard 7: Indigenous Peoples” International Finance Corporation (1 January 2012), online: IFC, http://www.ifc.org/wps/wcm/connect/1ee7038049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES.

64 Equator Principles (June 2013), supra note 12.

65 “Equator Principles Association Members & Reporting,” Equator Principles (June 2013), supra note 12.

66 Equator Principles (June 2013), supra note 12 at p. 21.

67 CBC News, “Canada votes 'no' as UN native rights declaration passes” CBC News (13 September 2007), online: CBC News, http://www.cbc.ca/news/canada/canada-votes-no-as-un-native-rights-declaration-passes-1.632160.

68 Ibid. ; CBC News, “Canada endorses indigenous rights declaration” CBC News (12 November 2010), online: http://www.cbc.ca/news/canada/canada-endorses-indigenous-rights-declaration-1.964779.

69 “Canada endorses indigenous rights declaration” CBC News (12 November 2010), Ibid.; Indigenous and Northern Affairs Canada, “United Nations Declaration on the Rights of Indigenous Peoples” (9 May 2016), online: Government of Canada, https://www.aadnc-aandc.gc.ca/eng/1309374407406/1309374458958.

70 Snuneymuxw First Nation v. Board of Education – School District #68, 2014 BCSC 1173; Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, 2007 ONCA 814; Hupacasath First Nation v. Canada (Foreign Affairs), 2013 FC 900.

71 Liberal Party of Canada, “133. Priority: Respecting Aboriginal Rights” (2016), online: Liberal Party of Canada, https://www.liberal.ca/policy-resolutions/133-priority-respecting-Aboriginal-rights/; Prime Minister of Canada Justin Trudeau, “Statement by Prime Minister on Release of the Final Report of the Truth and Reconciliation Commission” (15 December 2015), online: Prime Minister of Canada Justin Trudeau, http://pm.gc.ca/eng/news/2015/12/15/statement-prime-minister-release-final-report-truth-and-reconciliation-commission.

72 CBC News, “Canada removing objector status to UN Declaration on the Rights of Indigenous Peoples” CBC News (8 May 2016), online: CBC News: http://www.cbc.ca/news/Aboriginal/canada-position-un-declaration-indigenous-peoples-1.3572777; Indigenous and Northern Affairs Canada, News Release, “Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples” (10 May 2016), online: Government of Canada, http://news.gc.ca/web/article-en.do?mthd=advSrch&crtr.mnthndVl=&crtr.mnthStrtVl=&crtr.page=1&nid=1063339&crtr.yrndVl=&crtr.kw=indigenous&crtr.yrStrtVl=&crtr.dyStrtVl=&crtr.dyndVl=.

73 Though the Truth and Reconciliation Commission was formed by the federal government, it operated independently of government, does not bind any government, and directed many of its Calls to Action towards government.

74 Truth and Reconciliation Commission, supra note 4 at 191 (Calls to Action 43 and 44). The role of government in facilitating consultation processes is discussed at paragraphs 104 to 111 below.

75 Truth and Reconciliation Commission, supra note 4 at 306 (Call to Action 92).

76 Ibid. at 302 n 273; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 53 (“Haida”).

77 Truth and Reconciliation Commission, supra note 4 at 305.

78 As part of her apology to Indigenous Peoples in response to the Final Report of the Truth and Reconciliation Commission of Canada, on May 30, 2016, Ontario Premier Kathleen Wynne announced a series of initiatives to foster reconciliation with Indigenous peoples in Ontario, and a commitment to “work closely with Canada’s federal government, whose commitments to reconciliation are encouraging and vital to our success.” Office of the Premier, “Ontario’s Commitment to Reconciliation with Indigenous Peoples” (30 May 2016), online: Government of Ontario, https://news.ontario.ca/opo/en/2016/05/ontarios-commitment-to-reconciliation-with-indigenous-peoples.html.

79 Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess., 42nd Parl., 2016.

80 Indigenous and Northern Affairs Canada, News Release, “Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples” (10 May 2016), online: Government of Canada, http://news.gc.ca/web/article-en.do?mthd=advSrch&crtr.mnthndVl=&crtr.mnthStrtVl=&crtr.page=1&nid=1063339&crtr.yrndVl=&crtr.kw=indigenous&crtr.yrStrtVl=&crtr.dyStrtVl=&crtr.dyndVl=.

81 Report of the Special Rapporteur on the rights of indigenous people, HRC, 27th Sess., UN Doc. A/HRC/27/52/Add.2 (2014) at para. 6 (“Report of the Special Rapporteur, HRC (2014)”).

82 Ibid. at 1.

83 Ibid. at paras. 58-77, 98

84 Ibid. at para. 98.

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