"Veto" and "Consent" – Significant Differences
Paul Joffe
1
March 26, 2016
1
Member of the Québec and Ontario bars. I am grateful to Jennifer Preston, Indigenous Rights Coordinator, Canadian
Friends Service Committee (Quakers) and to Craig Benjamin, Campaigner for the Human Rights of Indigenous
Peoples, Amnesty International Canada for their valued insights, comments and revisions on earlier drafts.
i
Table of Contents
Page
Introduction .......................................................................................................................................... 1
1.
"Consent" or FPIC ..................................................................................................................... 3
2.
Reference to "veto" by Supreme Court ..................................................................................... 6
3.
Rights are rarely absolute .......................................................................................................... 8
4.
"Valid legislative objectives" or "public purposes" do not preclude Indigenous consent ........ 9
5.
Business, human rights and FPIC ........................................................................................... 10
6.
Canada’s misleading and unfounded opposition to FPIC ....................................................... 12
Conclusions ........................................................................................................................................ 13
"Veto" and "Consent" – Significant Differences
Paul Joffe
Introduction
This paper offers some analysis on “veto” and “consent” and highlights important differences. It
addresses these issues in the context of proposed third party developments in or near Indigenous
peoples' lands and territories.
The issue of “consent” or “free, prior and informed consent” (FPIC) often arises in the context of
the
United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General
Assembly in 2007.
1
As described below, Indigenous peoples’ “consent” is affirmed in, but does not
originate with, the
UN Declaration. Yet too often key legal sources and arguments in favour of
consent are not fairly considered, if not fully ignored.
2
The
UN Declaration is currently a consensus international human rights instrument. No country in
the world formally opposes it. The General Assembly reaffirmed the UN Declaration by consensus
in 2014 and 2015.
3
In particular, the outcome document of the World Conference on Indigenous
Peoples not only reaffirmed the
UN Declaration but also highlighted State commitments to FPIC:
We recognize commitments made by States, with regard to the United Nations
Declaration on the Rights of Indigenous Peoples, to consult and cooperate in good
faith with the indigenous peoples concerned … in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or
territories and other resources.
4
In the past, extreme and unfounded statements
5
were made by the government of Canada in relation
to the
UN Declaration, in particular addressing the principle of “free, prior and informed consent”.
The former government’s portrayal of the dangers of FPIC were designed to foster alarm. They ran
counter to Canada’s endorsement of the UN Declaration.
6
Such extreme positions are the antithesis
of reconciliation. Unfortunately, such extreme positions have been repeated in the media and have
been used by project proponents in courts and regulatory processes in response to Indigenous
peoples’ assertion of FPIC.
In the context of resource development, the adverse impacts that may affect Indigenous peoples can
be severe and far-reaching. Such situations reinforce the need to obtain the "free, prior and
informed consent" of Indigenous peoples.
7
Such consent is not the same as a veto. “Veto” implies
complete and arbitrary power, with no balancing of rights.
There are various reasons for avoiding use of the term "veto". These include:
i) The Supreme Court of Canada (SCC) has used the term “veto” but has not defined
what "veto" means in the context of Indigenous peoples’ rights and related Crown
obligations;