6
own natural resources. The duties to consult with indigenous peoples and to obtain their free, prior
and informed consent are crucial elements of the right to self-determination.”
50
In addition to the right of self-determination, the UN Declaration includes a number of provisions
that refer to FPIC. No specific provision should be interpreted in isolation, but rather in the context
of the whole Declaration and other international human rights law. For example, such approach
would apply to article 32(2):
States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions
in order to obtain their
free and informed consent prior to the approval of any project affecting their lands
or territories and other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
In the Handbook for Parliamentarians on the UN Declaration,
51
the Inter-Parliamentary Union
(IPU) emphasizes the importance of Indigenous peoples’ “consent”:
When parliamentarians consider draft legislation on matters that directly or
indirectly affect indigenous peoples, it is important for them to understand and
carry out their duty to obtain indigenous peoples’ consent, to ensure that such
laws not only reflect the views of the non-indigenous communities concerned, but
can also be implemented without detrimentally affecting the rights of indigenous
communities.
52
In 2009, the African Commission on Human and Peoples’ Rights relied extensively on the UN
Declaration
53
and other international law to address the land rights of the Endorois people: “any
development or investment projects that would have a major impact within the Endorois territory,
the State has a duty not only to consult with the community, but also to obtain their free, prior, and
informed consent, according to their customs and traditions.”
54
In various countries, the UN Declaration is being used to interpret domestic law.
55
In 2007, in a
major land rights case that included the issue of Indigenous “consent’” the Chief Justice of the
Supreme Court of Belize relied in part on article 26 of the UN Declaration and ruled in favour of
the Maya people.
56
Subsequently, the Court of Appeal affirmed Mayan land and resource rights in
Southern Belize based on their longstanding use and occupancy.
57
The appeal court emphasized the
Chief Justice was “entirely correct” to take into account Belize’s international law and treaty
obligations, as well as general principles of international law in the UN Declaration.
58
2.
Reference to "veto" by Supreme Court
In regard to "veto", the Supreme Court provided in para. 48 of Haida Nation:
This process [of accommodation] does not give Aboriginal groups a veto over
what can be done with land pending final proof of the claim. The Aboriginal
"consent" spoken of in Delgamuukw is appropriate only in cases of established
7
rights, and then by no means in every case. Rather, what is required is a process
of balancing interests, of give and take.
It is critical to interpret para. 48 together with the rest of the Supreme Court's ruling. Para. 24
indicated that, at the high end of the scale, the duty to consult requires "the '
full consent of [the]
aboriginal nation' on very serious issues. These words apply as much to unresolved claims as to
intrusions on settled claims."
The Court added that the process of balancing interests means that both the Crown and Aboriginal
peoples may have some limits on their actions "pending claims resolution".
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal
interests where claims affecting these interests are being seriously pursued in the
process of treaty negotiation and proof. It must respect these potential, but yet
unproven, interests. The Crown is not rendered impotent. It may continue to
manage the resource in question pending claims resolution. But, depending on the
circumstances ... the honour of the Crown may require it to consult with and
reasonably accommodate Aboriginal interests pending resolution of the claim. To
unilaterally exploit a claimed resource during the process of proving and
resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal
claimants of some or all of the benefit of the resource. That is not honourable.
59
Where Aboriginal peoples have a "strong prima facie case", the Court indicated that the objective is
"aimed at finding a satisfactory interim solution". The issue of "veto" was not the focus.
At the other end of the spectrum lie cases where a strong prima facie case for the
claim is established, the right and potential infringement is of high significance to
the Aboriginal peoples, and the risk of non-compensable damage is high. In such
cases deep consultation, aimed at finding a satisfactory interim solution, may be
required. While precise requirements will vary with the circumstances, the
consultation required at this stage may entail the opportunity to make submissions
for consideration, formal participation in the decision-making process, and
provision of written reasons to show that Aboriginal concerns were considered
and to reveal the impact they had on the decision. This list is neither exhaustive,
nor mandatory for every case. The government may wish to adopt dispute
resolution procedures like mediation or administrative regimes with impartial
decision-makers in complex or difficult cases.
60
Where a strong prima facie case exists, the Supreme Court again focused on finding interim
solutions "pending final resolution". Such solutions may require a process of accommodation that
"may best be resolved by consultation and negotiation". Such negotiation raises consensual issues.
When the consultation process suggests amendment of Crown policy, we arrive at
the stage of accommodation. Thus
the effect of good faith consultation may be to
reveal a duty to accommodate. Where a strong prima facie case exists for the
claim ... and the consequences of the government's proposed decision may
adversely affect it in a significant way, addressing the Aboriginal concerns may
require taking steps to avoid irreparable harm or to minimize the effects of