Part V - Conclusion

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

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

112. The basic challenge of Indigenous consultation and accommodation arises because Canada’s conduct and treatment of Indigenous peoples has caused immeasurable harm. As a result, Canada’s relationship with Indigenous peoples suffers from a lack of respect and trust. The need for reconciliation emanates from the need to establish respectful relationships. Reconciliation must therefore form the core of any consultation and accommodation process.

113. Canada is still beginning its reconciliation with Indigenous peoples. While it is important to acknowledge that progress has been made, we cannot lose sight of the long road ahead. Similarly, the principles of free, prior and informed consent are still relatively novel, and have not been subject to substantial interpretation. While future legislation, government policy, and judicial interpretation will determine whether the duty to consult and, if appropriate, accommodate under Canadian law, and the international principles of free, prior and informed consent differ in certain ways, it is clear that both share the same goal: to protect Aboriginal peoples’ rights, remedy historical disadvantage, and provide the foundation for a more dignified and respectful relationship between Indigenous peoples and Canada. Both regimes aim to foster reconciliation.

114. To build the necessary respect and trust that underlies reconciliation, we cannot simply proclaim it. We need to earn that respect and trust through conduct and action. One way in which reconciliation can be fostered is by approaching Indigenous consultation and accommodation processes through the lens of building long-term relationships, aimed at satisfying all parties’ interests. It is useful to think of these relationships through the mindset of partnership. A partnership model is the antithesis of unilateralism, exploitation and neglect.

115. Flowing from the model of partnership, Indigenous peoples should be provided with the opportunity to participate in all aspects—procedural and substantive—of a project or activity that may affect their rights. In the context of this approach, government should play a useful role in determining the appropriate form of consultation in the context and helping parties align their incentives so that all significant interests can be met.

116. It is undeniable that the imperative of reconciliation falls first on the shoulders of the Crown. However, in practice, when Indigenous consultations are required in connection to a project or activity led by the private sector, the consultation process is in whole or in part delegated to the proponent. Various corporate codes of conduct have incorporated the principles of free, prior and informed consent. The Truth and Reconciliation Commission called on the private sector in Canada, as well as Canadian governments, to implement the Declaration. It is therefore important for the private sector in Canada to consider how its actions may facilitate reconciliation as well. By approaching Indigenous peoples as partners, Canadian companies take an important step.

117. The review reflected in this paper reveals many challenges on the path towards reconciliation, but by the same token, those challenges present unique opportunities for Canada and Indigenous peoples to build a relationship that endures and is worthy of celebration by everyone.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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