2
ii) in Haida Nation,
8
the SCC referred to "veto" solely in the context of Aboriginal rights
that are asserted but yet unproven. As examined under heading 2 below, even this
specific use of the term ‘veto’ is questionable;
9
iii) the
UN Declaration uses the term "free, prior and informed consent".
10
The term
"veto" is not used;
iv) To some people, the term "veto" suggests a unilateral and indiscriminate power, i.e.
an Indigenous people could block a proposed development regardless of the facts and
law in any given case; and
v) “Veto” implies an absolute power, with no balancing of rights. This is neither the
intent nor interpretation of “consent” in Canadian and international law. As
elaborated below, the UN Declaration includes comprehensive balancing
provisions.
11
Human rights instruments, such as the UN Declaration, are generally drafted in broad terms so as to
accommodate a wide range of circumstances both foreseen and unforeseen. Should any human
rights dispute arise, a “contextual analysis” would take place based on the particular facts and law in
a specific situation. This is the just approach that is generally accepted in both international
12
and
domestic
13
law.
In examining the significance of FPIC and the UN Declaration, it is important to underscore that the
Declaration affirms the inherent
14
human rights of Indigenous peoples. It does not create new
rights. The
UN Declaration is “an interpretative document that explains how the existing human
rights are applied to Indigenous peoples and their contexts. It is a restatement of principles for
postcolonial self-determination and human rights”.
15
Former Special Rapporteur on the rights of
Indigenous peoples James Anaya has concluded:
… the Declaration does not attempt to bestow indigenous peoples with a set of
special or new human rights, but rather provides a contextualized elaboration of
general human rights principles and rights as they relate to the specific historical,
cultural and social circumstances of indigenous peoples.
16
Prior to examining further the issue of consent, it is worth noting that in 2012 Canada highlighted to
the UN Committee on the Elimination of Racial Discrimination the relevance of the UN
Declaration: “While it had no direct legal effect in Canada, Canadian courts could consult
international law sources when interpreting Canadian laws, including the Constitution.”
17
This
interpretive rule is not new.
As former Chief Justice Dickson of the Supreme Court stressed in 1987: “The various sources of
international human rights law -
declarations, covenants, conventions, judicial and quasi-judicial
decisions of international tribunals, customary norms - must, in my opinion, be relevant and
persuasive sources for interpretation of the Charter's provisions.”
18
The same rule necessarily
applies to the “guarantee of Aboriginal rights” in s. 35 of the
Constitution Act, 1982.
19
3
1.
"Consent" or FPIC
In contrast to "veto", the standard of "consent" is well-established in domestic and international law.
In Canada, consensual decision-making goes at least as far back as the Royal Proclamation (1763).
As explained by Chief Justice
Beverley McLachlin in 2009:
The English in Canada and New Zealand took a different approach [from Spain,
France and Australia], acknowledging limited prior entitlement of indigenous
peoples, which required the Crown to treat with them and obtain their consent
before their lands could be occupied. In Canada - indeed for the whole of
North America - this doctrine was cast in legal terms by the Royal
Proclamation of 1763, which forbad settlement unless the Crown had first
established treaties with the occupants.
20
Similarly, the Royal Commission on Aboriginal Peoples elaborated in its 1996 final report: “the
Royal Proclamation … initiate[d] an orderly process whereby Indian land could be purchased for
settlement or development. … In future, lands could be surrendered only on a nation-to-nation
basis, from the Indian nation to the British Crown, in a public process in which the assembled
Indian population would be required to consent to the transaction.”
21
In
Tsilhqot'in Nation v.
British Columbia,
22
the Supreme Court of Canada highlighted Indigenous
peoples’ right to "consent" in 9 paragraphs; "right to control" the land in 11 paragraphs; and "right
to determine" land uses in 2 paragraphs. The right to control the land conferred by Aboriginal title
means that “governments and others seeking to use the land must obtain the consent of the
Aboriginal title holders,” unless stringent infringement tests are met.
23
Indigenous peoples’ consent is not limited to Indigenous title lands or agreements negotiated with
the Crown. In Haida Nation, the Court ruled in 2004 that the content of the duty to consult "varied
with the circumstances" and required "full consent" on "very serious issues":
… the content of the duty [to consult] varied with the circumstances: from a
minimum "duty to discuss important decisions" where the "breach is less serious
or relatively minor"; through the "significantly deeper than mere consultation"
that is required in "most cases"; to "full consent of [the] aboriginal nation" on
very serious issues.
24
In 1997, the Court ruled in Delgamuukw:
The nature and scope of the duty of consultation will vary with the
circumstances. … In most cases, it will be significantly deeper than mere
consultation. Some cases may even require the full consent of an aboriginal
nation, particularly when provinces enact hunting and fishing regulations in
relation to aboriginal lands.
25