Dwight Newman is a Munk Senior Fellow of the Macdonald-Laurier Institute and Canada Research Chair in Indigenous Rights at the University of Saskatchewan College of Law.
Discussion over free, prior and informed consent (FPIC) for development on Indigenous land has taken a sly turn in Canada. While federal politicians have loud intentions to implement consent on a broad basis, a recent government document has gone so far as to rewrite text from the UN Declaration on the Rights of Indigenous Peoples to set out a lesser standard. That may be the right choice in policy terms, but it needs to be discussed and debated transparently.
By way of context, the Supreme Court of Canada's July 26 decision on Chippewas of the Thames re-emphasized that Canadian law requires meaningful consultation with Indigenous communities about developments on their traditional territories. However, it does not generally make Indigenous consent a legal requirement.
The requirement of consultation is a constitutional minimum. Apart from government consultation, many industry partners already go further than the law requires in developing relationships with Indigenous communities and negotiating win-win agreements for Indigenous economic participation.
Similarly, it would be open to governments to develop policies containing a higher standard or even to legislate requirements of consent for certain projects. For a while, that looked like what the Trudeau government was promising. In an Aboriginal Peoples Television Network virtual town hall before the 2015 election, Justin Trudeau indicated that a "no" from an affected Indigenous community would "absolutely" result in a pipeline project being cancelled.
Although some postelection comments have been more limited, senior cabinet ministers have continued to speak of FPIC implementation in broad terms. Appearing at the UN Permanent Forum on Indigenous Issues in May, 2017, Minister of Indigenous Affairs Carolyn Bennett garnered applause with statements such as implementing UNDRIP "shouldn't be scary" and FPIC was now "being built" into Canadian legislation.
On July 14, 2017, the federal government released its 10 principles on the government's relationship with Indigenous peoples. Directed principally to the federal bureaucracy, these principles draw together a lot of established policy and law in one document.
On the issue of FPIC, the 10 principles "recognize that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights." In a subsequent portion, it copies parts of Articles 18, 19 and 32 of UNDRIP that refer to the FPIC requirement.
However, the drafters of the 10 principles make some subtle changes. The text of UNDRIP largely speaks of an obligation of consulting and co-operating with Indigenous peoples "in order to obtain their free, prior and informed consent". The 10 principles have an altered text that refers to consulting and co-operating "with the aim of securing their free, prior and informed consent".
To the average reader, these words may look very similar. But they matter immensely to lawyers, bureaucrats and Indigenous communities. The language used in UNDRIP has occasioned a debate on whether it imposes a requirement of obtaining consent or simply mandates seeking consent in good faith but permitting various developments to proceed if it is not obtained.
The 10 principles copies much of the text from UNDRIP but changes the words on this key point. Its choice of language has the effect of resolving this debate in favour of the lesser expectation – consultation, with no requirement of obtaining consent.
The UNDRIP language actually supports this lesser expectation – which, to me, offers a reconciliation between Indigenous and non-Indigenous interests that seeks to be fair to all. (Fairly enough, my view on this point has been challenged, given the ongoing debate on the issue of consent.)
The problem is that the Trudeau government gave signals of going toward the higher standard, therefore setting up equally high expectations. It has now tried to reverse that position through sly rewriting of legal language, without being transparent and willing to debate that position. When expectations come crashing down, it is unclear what the implications are for reconciliation and relationships with Indigenous communities.
Process matters. There is still a lot of good will about this government's very genuine efforts, but that good will could easily be lost. The government needs to improve the clarity, consistency and openness of its communications on these issues, or risk serious damage in its relations with Indigenous communities.
Dwight Newman has written extensively on the duty to consult and has an upcoming report with the Macdonald-Laurier Institute on FPIC implementation.