Bob Rae and Oliver MacLaren are partners at Olthuis Kleer Townshend law firm. Sarah Colgrove, Benjamin Brookwell, and Julie-Anne Pariseau are associates. The firm acts for Indigenous people across Canada
On June 1, Canada said farewell to four visiting United Nations delegates who spent ten days visiting communities across the country to learn how business impacts international human-rights standards here. Over the next year, they will write their report. Indigenous rights are sure to be front and centre.
Canada is ahead of many nations in recognizing Indigenous rights, but there remains significant work to be done. Canadian courts, governments, businesses, and civil society need to appreciate that truly free, prior, and informed consent is a critical requirement in upholding the rights of Indigenous people in international law.
After a decade opposing it, Canada announced last year that it fully supports the UN Declaration on the Rights of Indigenous Peoples. In 2007, Canada was one of four states that voted against UNDRIP. When Canada finally announced its support in 2016, there were cheers. But shortly thereafter, that support was qualified to be a commitment to implement UNDRIP in accordance with the existing Constitution.
There is a big gap between Canada's constitutional requirements for the treatment of Indigenous people and the requirements of international law.
One major difference is in consultation, where international law requires consent. Under UNDRIP, when states act in a way that may affect Indigenous rights, states have a duty to consult with them fully, and not proceed until receiving their "free, prior, and informed" consent.
It is not only UNDRIP that requires consent: It has been adopted as the operating standard by a majority of international development agencies, including the World Bank, the International Finance Corporation and private lenders adopting the Equator Principles. This is because it is increasingly seen as a practical tool to remove development risk to proposed projects; unlike consultation, which yields evidence about processes, consent is unambiguous, and yields more certainty.
Our Constitution requires governments to consult with Indigenous peoples before taking actions that may affect their rights. However, Canadian courts often state that consultation will typically not require consent, and – fearful of a veto power – government officials frequently argue that consent is not required.
International laws also require that consultation be "free," "prior," and "fully informed," and that Indigenous people are able to participate fully in decisions affecting them. Interpretations of UNDRIP recognize that this depends on Indigenous people having adequate resources to fully evaluate a proposed action, including a reasonable period of time, funding, and expert technical support to help them assess all impacts and opportunities.
In Canada, consultation is usually treated as an administrative hurdle rather than a shared decision-making process. It is often unfunded, or only funded by a company applying for a permit from the government to build a project, making Indigenous people's ability to exercise their constitutional rights partly dependent on the goodwill of the company involved. In addition, timelines are usually short, and independent technical experts are rarely provided.
There have been some instances of consent on projects in Canada. These have occurred when businesses have been willing to openly negotiate the terms of their projects with local Indigenous communities, provide them with the time and support they need to assess their interest, share in the benefits of those projects, and agree to walk away or otherwise modify projects to the extent impacts are eliminated if the communities are not interested.
However, until Indigenous people have guaranteed access to the resources they need to engage in consultation, and a recognized right to say "no" to developments that impact them, examples of true consent will remain rare, and consultation processes will foster discord.
Courts, governments, and civil society need to recognize that healthy relationships are based on consent – consent that is truly free, prior, and informed. A year after finally supporting UNDRIP, we need to start implementing it at all levels: in law, policy, and private contracts. Providing stable funding, flexible timelines, and independent experts during consultation are important first steps.
It is now essential for governments across the country to recognize that the United Nations Declaration is an opportunity for them to engage with Indigenous people on how this new era of partnership and mutual respect will, in fact, happen. It has to be based on the principle of equality, and that Indigenous governments need to be given the space to exercise their responsibilities. It's an exciting and positive prospect.