Microsoft Word 'Veto' and 'Consent' Significant differences Joffe final mar 23 16. doc
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- Expert Mechanism Advice No. 2 (2011), para. 20: "... the right to free, prior and informed consent is embedded in the right to self-determination. ... [T]he right of free, prior and informed consent needs to be understood in the context of indigenous peoples’ right to self-determination because it is an integral element of that right." [emphasis added]
30 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994) at 118: "It has been clear from the outset that self-determination was not tied only to independence. The peoples of an independent territory have always had the right to choose the form of their political and economic future." [emphasis added]
31 Tsilhqot'in Nation, supra, paras. 67 and 75. 32 R. v. Hape [2007] 2 S.C.R. 292, para 53. 33 Tsilhqot'in Nation, supra, para. 88: “Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.” [emphasis added] Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights, Ser. C No. 79, 13 August 2001 (Judgment), at para. 149: “For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.” [emphasis added] See also UN Declaration, article 25. 34 UN Declaration, 2 nd preambular para. See also article 2: “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights”.
35
th preambular para.
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Assembly on December 16, 1966 and entered into force March 23, 1976, accession by Canada 1976 and International Covenant on Economic, Social and Cultural Rights, Can. T.S. 1976 No. 46, adopted by the UN General Assembly on December 16, 1966 and entered into force 3 January 1976, accession by Canada 1976, identical article 1(3).
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Racial Discrimination: Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (19 May 2010), para. 11: “In the light of its general recommendation No. 23 (para. 4 (d)), the Committee recommends that the State party consult the indigenous population groups concerned at each stage of the process and that it obtain their consent before executing projects involving the extraction of natural resources”.
Human Rights Committee, Poma v. Peru, Case No. 1457/2006, Report of the Human Rights Committee, GAOR, 64 th
Sess., Supp. No. 40, Vol. I, UN Doc. A/64/40 (2008-09), para. 202: “Participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.”
Committee on Economic, Social and Cultural Rights, General Comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/21 (21 December 2009), para. 5, indicating that a “core obligation applicable with immediate effect” includes the following: “States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk.”
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plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, para. 20.
39 See, e.g., Food and Agriculture Organization, FAO Policy on Indigenous and Tribal Peoples (Rome, Italy: FAO, 2010), at 5: “The principle and right of ‘free, prior and informed consent’ demands that states and organizations of all 17
kinds and at all levels obtain indigenous peoples’ authorization before adopting and implementing projects, programmes or legislative and administrative measures that may affect them.”
IFAD (International Fund for Agricultural Development), Engagement with Indigenous Peoples: Policy (Rome: IFAD, November 2009), at 13 (Principles of engagement): “When appraising such projects proposed by Member States, in particular those that may affect the land and resources of indigenous peoples, the Fund shall examine whether the borrower or grant recipient consulted with the indigenous peoples to obtain their free, prior and informed consent.”
Permanent Forum on Indigenous Issues, Information received from the United Nations system and other intergovernmental organizations: United Nations Children’s Fund, UN Doc. E/C.19/2011/7 (25 February 2011), para. 52: “While the free, prior and informed consent approach is considered by UNICEF to be inherent in its human rights- based approach to programming, it is also used as a specific methodology to conduct projects and studies.”
40 See, e.g., Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and Peoples' Rights, Communication No. 276/2003, Twenty-Seventh Activity Report, 2009, Annex 5, para. 226: “In terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded. Failure to observe the obligations to consult and to seek consent – or to compensate - ultimately results in a violation of the right to property.” [emphasis added]
Series C No. 172 (Judgment) 28 November 2007, para. 134: “... the Court considers that, regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions.” [emphasis added]
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Standards, Strengthening Commitment to Sustainability and Transparency”, 12 May 2011,
http://www.ifc.org/ifcext/media.nsf/content/SelectedPressRelease?OpenDocument&UNID=0ADE5C1923DC4CF4852 5788E0071FAAA .
42 United Nations Development Programme, UNDP Social and Environmental Standards, 14 July 2014, http://www.undp.org/content/dam/undp/library/corporate/Social-and-Environmental-Policies-and- Procedures/UNDP%20Social%20and%20Environmental%20Standards-14%20July%202014.pdf , “Standard 6: Indigenous Peoples”, para. 4 (Respect for domestic and international law). In regard to “Applicable Law”, see the “Overarching Policy and Principles” at 5, para. 9: “UNDP will not support activities that do not comply with national law and obligations under international law, whichever is the higher standard …” [emphasis added]
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44 Committee on Economic, Social and Cultural Rights, Concluding observations of the sixth periodic report of Canada, UN Doc. E/C.12/CAN/CO/6 (4 March 2016) (advance unedited version), para. 14. 45 Ibid. 46 Human Rights Committee, Concluding observations on the sixth periodic report of Canada, adopted by the Committee at its 114th session (29 June–24 July 2015) (advance unedited version), http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2fCO%2f6& Lang=en , para. 16. 47 Indigenous and Tribal Peoples Convention, 1989 (No. 169), International Labour Organization, Convention No. 169, I.L.O. 76th Sess., art. 4. [emphasis added] Although Canada has not ratified this human rights instrument, it may be used to interpret Indigenous peoples' rights in the domestic context: see Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at 348, per Dickson C.J. (dissenting). This same passage has been cited with approval by the Supreme Court of Canada in United States of America v. Burns, [2001] 1 S.C.R. 283, para. 80.
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