12
6.
Canada’s misleading and unfounded opposition to FPIC
A top priority of the newly-elected government of Canada is to implement the UN Declaration, in
consultation and cooperation with Indigenous peoples.
97
However, it is instructive to examine
briefly a few of the positions taken by the previous federal government relating to FPIC.
In 2014, Canada declared that it opposed “free, prior and informed consent” when it could be
interpreted as a “veto”.
98
Yet the federal government at that time never explained its position as to
what constituted “consent” and what constituted a “veto”. Was “veto” synonymous with
“consent”?
99
Was “veto” absolute?
100
In Tsilhqot’in Nation, there are many references to “consent”
and no mention of “veto”.
In the 2008 "Interim Guidelines for Federal Officials", the government of Canada indicated: "An
'established' right or title may suggest a requirement for consent from the Aboriginal group(s)."
101
The 2011 "Updated Guidelines" deleted any reference to Aboriginal "consent".
102
In October 2014, at the Committee on World Food Security in Rome, Canada would not accept a
reference to FPIC without inserting a formal explanation of position in the consensus Report:
"Canada interprets FPIC as calling for a process of meaningful consultation with indigenous
peoples on issues of concern to them".
103
Such a view contradicts the Supreme Court’s rulings that
explicitly refer to "consent".
As described in this paper, the right of Indigenous peoples to self-determination in international law
includes the right to give or withhold consent as a core element. In regard to self-determination, the
two human rights Covenants provide: “In no case may a people be deprived of its own means of
subsistence.”
104
The
UN Declaration affirms: “Indigenous peoples have the right … to be secure in
the enjoyment of their own means of subsistence and development”.
105
In 2009, the Committee on Economic, Social and Cultural Rights elaborated on the “right of
everyone to take part in cultural life”.
106
In Indigenous and other contexts, the Committee stressed
that “States parties have the following
minimum core obligations applicable with immediate
effect”:
107
To eliminate any barriers or obstacles that inhibit or restrict a person’s access to the
person’s own culture … without discrimination and without consideration for
frontiers of any kind;
108
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.
109
The UN Special Rapporteur on the right to food had emphasized in 2012 to Canada the importance
of FPIC and called for concerted measures “with the goal towards strengthening indigenous
peoples’ own self-determination and decision-making over their affairs at all levels.”
110
On crucial issues of "consent", Canada cannot selectively
111
ignore key aspects of the rulings of its
highest court, as well as international human rights law, to the detriment of Indigenous peoples.
13
Such actions are inconsistent with the principles of justice, equality, rule of law and respect for
human rights.
Conclusions
In the Indigenous context, there are significant differences between “veto” and “consent”. In
contrast to “veto”, the term “consent” has been extensively elaborated upon in Canadian
constitutional and international human rights law. Yet these essential legal sources and arguments
have not been fairly considered. Indigenous peoples’ right of self-determination has not been
applied at all.
In the landmark 2014 Tsilhqot’in Nation decision that addressed in detail Indigenous peoples’
consent, the term “veto” was not raised by the Supreme Court of Canada. The term “veto” is not
used in the UN Declaration on the Rights of Indigenous Peoples. “Veto” implies an absolute
power, with no balancing of rights. This is neither the intent nor interpretation of the UN
Declaration, which includes some of the most comprehensive balancing provisions in any
international human rights instrument.
The UN Declaration is a consensus international human rights instrument, which has been
reaffirmed by consensus by the UN General Assembly. At the same time, the principle of free, prior
and informed consent (FPIC) has also been explicitly reaffirmed.
In regard to federal, provincial and territorial governments, a most effective approach to implement
the
UN Declaration, including FPIC, is in conjunction with First Nations, Inuit and Métis
peoples.
112
Such an approach would foster stronger relationships with Indigenous peoples,
safeguard their human rights and promote reconciliation across Canada.
113
In its final Report and
Calls to Action, the Truth and Reconciliation Commission of Canada requires no less.
114
Endnotes
1
United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 (13 September 2007), Annex.
2
E.g., “consent” is a key element of the right of self-determination, including self-government, as well as in the Royal
Proclamation, 1763 (see analysis under heading 1 below).
3
General Assembly, Outcome document of the high-level plenary meeting of the General Assembly known as the World
Conference on Indigenous Peoples, UN Doc. A/RES/69/2 (22 September 2014) (adopted without a vote),
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/2
, para. 3: “We reaffirm our support for the United
Nations Declaration on the Rights of Indigenous Peoples”. Following the adoption by consensus of the Outcome
document, Canada indicated that it would issue a written statement on this instrument. Such statement has no
legal effect on the consensus adoption. If Canada had wished to formally object, it would have had to call for a
vote and then voted against the Outcome document.
See also General Assembly, Rights of indigenous peoples, UN Doc. A/RES/70/232 (23 December 2015) (without a
vote), preamble: “Reaffirming the United Nations Declaration on the Rights of Indigenous Peoples, which addresses
their individual and collective rights”.