Governments can't pick and choose when they will respect Indigenous rights
“...resource extraction and other major development projects in or near indigenous territories [are] one of the most significant sources of abuse of the rights of indigenous peoples worldwide. In its prevailing form, the model for advancing with natural resource extraction within the territories of indigenous peoples appears to run counter to the selfdetermination of indigenous peoples in the political, social and economic spheres.”
- former United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 2011.
Selective approaches to free, prior and informed consent foster conflict when we need reconciliation
The governments of Prime Minister Justin Trudeau and BC Premier John Horgan have both made welcome and important commitments to upholding the rights of Indigenous peoples, including implementing the key international human rights instrument protecting the rights of Indigenous peoples, the UN Declaration on the Rights of Indigenous Peoples.
However, events of the last month -- the forcible arrest of land and water defenders opposing a pipeline on Wet’suwet’en territory and the strong condemnation of the Site C dam by the UN Committee on the Elimination of Racial Discrimination -- have focused public attention on the wide gulf between rhetoric and reality.
At the heart of the matter is the right of free, prior and informed consent, well-established in international law and repeatedly affirmed in the UN Declaration.
The Horgan and Trudeau governments both claim to respect FPIC. Both are eager to talk about agreements that have been reached with Indigenous peoples. Yet both have demonstrated that they are prepared to ignore the voices of Indigenous peoples when they say 'no', even to the point of standing by while police enforce an injunction against traditional authorities whose decisions were ignored in the project approval process.
Such a selective approach to their human rights obligations is contrary to the letter and spirit of the human rights standards the Trudeau and Horgan governments claim to champion.
FPIC and international human rights law
One of the crucial purposes of human rights instruments like the Declaration is to hold governments to a higher standard when there is a conflict between what is politically opportune and what is right. By all means, governments and corporations should be encouraged to seek agreements with Indigenous peoples. But the real test of reconciliation is how they respond when Indigenous peoples say 'no', or 'not yet'.
Free, prior and informed consent – or FPIC – flows from the right of all peoples to self-determination. Over and over again, the Declaration affirms that Indigenous peoples have the right to make their own decisions about their lives and futures according to their own laws and traditions. This is fundamental. Anything less is a continuation of the structures and practices of colonial domination that the Declaration repudiates.
FPIC is also a necessary counterpart to the recognition of Indigenous peoples' continued ownership of their lands and territories. As the Supreme Court said in the Tsilhoqot’in decision, title means the power to say 'yes' or 'no' to how the land is used.
Finally, FPIC is also an essential safeguard for rights that have been systematically abused by colonial states. Quite simply, Indigenous peoples’ control of decisions affecting their lives and futures is the best counter-weight to systemic discrimination in federal, provincial and territorial decision-making.
In this light, federal Minister of Crown-Indigenous Relations Carolyn Bennett was absolutely correct when she said that FPIC is at the “heart” of the Declaration.
The priority must always be to protect human rights
The central importance of FPIC to protecting the rights of Indigenous peoples is precisely why it’s unacceptable for governments to pick and choose when to respect FPIC based on their own agendas. Doing so leaves Indigenous peoples at risk of the very harms that the Declaration seeks to prevent. Ignoring Indigenous peoples when they say 'no' also calls into question of those legitimacy of the agreements that are reached. Quite simply, entering into an agreement only because you don’t think there’s any other choice is duress, not consent.
In other words, a selective approach to FPIC reinforces rather than transforms the underlying unjust relationship between Canada and Indigenous peoples.
It is true that there are circumstances in which the exercise of free, prior and informed consent must be tempered in order to respect and uphold the rights of others. Such a circumstance is provided for in the provisions of the UN Declaration. The Declaration states that the rights of Indigenous peoples shall be subject to “only such limitations as are determined by law and in accordance with international human rights obligations” and that such limitations must be “non-discriminatory and strictly necessary solely for the purpose of security due recognition and respect for others and for meeting the just and most compelling requirements of a democratic society.”
Does the construction of an oil and gas pipeline or a hydro-dam pass this threshold? Probably not.
Despite the growing hyperbole around energy development projects, it would be hard to characterize any one project proposal as “strictly necessary.” Projects can be redesigned, finding new routes in the case of pipelines or alternative sources of power in the case of hydro-electric dams. Projects can be delayed until an agreement can be reached. And they can also be abandoned in favour of other projects where consent can be obtained.
Without a doubt, there can be serious economic consequences for not proceeding with a particular project. But at the same time, there are also financial costs and social and environmental harms that would be avoided. Finding the right balance between benefits and harms is a crucial matter of debate and public policy. But in the end, no matter what balance the government of the day choses to strike, it cannot casually ignore rights protected in international law and the Constitution. Such checks on the decision-making powers of government are a fundamental principle of a Constitutional democracy and of the international human rights system. And nowhere are they more important than when it comes protecting the rights of Indigenous peoples.
Centuries of colonial laws and policies – which, as the Truth and Reconciliation Commission concluded, were designed with genocidal intent - have had a devastating impact on health and well-being that Indigenous peoples are working with strength, resilience and determination to overcome. What is required of federal, provincial and territorial governments is active collaboration with Indigenous peoples to right these wrongs and prevent further harm, even if doing so has a cost for Canadian society at large.
This is what reconciliation requires, not lip service to human rights standards when it is convenient.