4
The term "full consent", as applied by the Supreme Court, has the elements of "free", "prior" and
"informed" that is used in the
UN Declaration and other international human rights law. In
Canadian law, "consent" must be freely given or obtained in the absence of duress.
In order to ensure meaningful consultations, the Supreme Court has ruled that the Crown must
provide “all necessary information in a timely way”. This is to ensure that Indigenous concerns are
"seriously considered" and "integrated" into a proposed plan of action:
The Crown's duty to consult imposes on it a positive obligation to reasonably
ensure that aboriginal peoples are provided with all necessary information
in a
timely way so that they have an opportunity to express their interests and
concerns, and to ensure that their representations are seriously considered and,
wherever possible, demonstrably integrated into the proposed plan of action.
26
In Tsilhqot’in Nation, the Supreme Court of Canada underlined the far-reaching significance of
Indigenous peoples’ consent in terms of cancelling projects and rendering legislation inapplicable:
Once title is established, it may be necessary for the Crown to reassess prior
conduct in light of the new reality in order to faithfully discharge its fiduciary
duty to the title-holding group going forward. For example, if the Crown begins a
project without consent prior to Aboriginal title being established, it may be
required to cancel the project upon establishment of the title if continuation of the
project would be unjustifiably infringing.
27
In regard to legislation, the Court added: “Similarly, if legislation was validly enacted before title
was established, such legislation may be rendered inapplicable going forward to the extent that it
unjustifiably infringes Aboriginal title.”
28
In international law, "free, prior and informed consent" (FPIC) is an essential standard that is an
integral element of the right of self-determination.
29
Self-determining peoples have a right to
choose.
30
In Tsilhqot’in Nation, the Supreme Court referred to Indigenous peoples’ “right to
choose”.
31
The Supreme Court has yet to explicitly consider the UN Declaration. However, the Supreme Court
has repeatedly affirmed the applicability in Canada of international law as a whole. The Supreme
Court has ruled that the legislature is presumed to act in compliance with Canada’s international
obligations. Unless there is a clear, contrary legislative intent, domestic laws “will be presumed to
conform to international law”.
32
This rule is especially important in regard to the right of Indigenous peoples to self-determination,
including self-government, which includes both rights and responsibilities.
33
As affirmed in the UN
Declaration, “Indigenous peoples are equal to all other peoples”
34
and “nothing in this Declaration
may be used to deny any peoples their right to self-determination, exercised in conformity with
international law”.
35
As affirmed in
International Covenant on Civil and Political Rights and
International Covenant on
Economic, Social and Cultural Rights, Canada has an affirmative obligation to “promote the
5
realization of the right of self-determination, and … respect that right, in conformity with the
provisions of the Charter of the United Nations.”
36
UN treaty bodies
37
and other diverse entities require or support the standard of FPIC. These include:
UN General Assembly
38
and specialized agencies,
39
as well as regional human rights bodies.
40
In
2011, the International Finance Corporation announced: “For projects with potential significant
adverse impacts on indigenous peoples, IFC has adopted the principle of ‘Free, Prior, and Informed
Consent’ informed by the 2007 United Nations Declaration on the Rights of Indigenous Peoples.”
41
The UN Development Programme (UNDP) “will not participate in a Project that violates the human
rights of indigenous peoples as affirmed by Applicable Law and the United Nations Declaration”.
42
UNDP added: “FPIC will be ensured on any matters that may affect the rights and interests, lands,
resources, territories (whether titled or untitled to the people in question) and traditional livelihoods
of the indigenous peoples concerned.”
43
In March 2016, the UN Committee on Economic, Social and Cultural Rights recommended that
Canada “fully recognize the right to free, prior and informed consent of indigenous peoples in its
laws and policies and apply it in practice.”
44
In particular, the Committee added that:
… the State party establish effective mechanisms that enable meaningful
participation of indigenous peoples in decision-making in relation to development
projects being carried out on, or near, their lands or territories … [and] that the
State party effectively engage indigenous peoples in the formulation of legislation
that affects them.
45
In July 2015, the UN Human Rights Committee urged Canada to “consult indigenous people … to
seek their free, prior and informed consent whenever legislation and actions impact on their lands
and rights”.
46
The
Indigenous and Tribal Peoples Convention, 1989 requires Indigenous consent for a broad range
of "special measures" by the State:
1. Special measures shall be adopted as appropriate for safeguarding the persons,
institutions, property, labour, cultures and environment of the peoples concerned.
2. Such special measures shall not be contrary to the freely-expressed wishes of
the peoples concerned.
47
Following his visit to Canada, former Special Rapporteur James Anaya concluded: "as a general
rule resource extraction should not occur on lands subject to aboriginal claims without adequate
consultations with and the free, prior and informed consent of the indigenous peoples concerned."
48
Anaya added: "The general rule identified here derives from the character of free, prior and
informed consent as
a safeguard for the internationally recognized rights of indigenous peoples that
are typically affected by extractive activities that occur within their territories."
49
FPIC is also highlighted in
The United Nations Declaration on the Rights of Indigenous Peoples: A
Manual for National Human Rights Institutions: “indigenous peoples have the right to determine
their own economic, social and cultural development and to manage, for their own benefit, their