Geoff Plant was British Columbia's Liberal attorney-general from 2001 to 2005. He practises law with Gall Legge Grant Zwack in Vancouver.
B.C.'s premier John Horgan recently committed his NDP government to "embrace and implement" the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). For many, this was a long-awaited step along the path toward social justice for Indigenous peoples. Others are concerned that full recognition of UNDRIP, no matter how well-intentioned, will simply add more roadblocks to the development of B.C.'s lands and resources.
The concern is with UNDRIP's statement that resource development requires the "free, prior and informed" consent of Indigenous land-owners. I don't dismiss the concern, but I strongly believe that adoption of UNDRIP's standards represents a tremendous opportunity to change how land and resource decision-making is done in B.C. in a way that will benefit everyone. Properly implemented, UNDRIP offers an opportunity to replace conflict on the land with co-operation, to make real progress toward reconciliation.
The fundamental first step in any consideration of UNDRIP is to understand the whole document in its context. If you've never read it in full, I encourage you to do so. In particular, try to read the document from an Indigenous perspective. Ask yourself the question, 'What is it about my history and experience that would cause me to want and need the protection of a UN Declaration specifically dedicated to my circumstances?'
Take Article 1, for example. It reads:
"Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law."
Imagine what it would be like to live in a world where this even needs to be said? The reason, of course, is that throughout history, Indigenous peoples have not had the same basic rights and freedoms as the rest of us. As recently as 1960, Indians in Canada did not have the right to vote.
As you read the clauses of UNDRIP, the question that rises is not whether Indigenous people should have special protection, but rather whether we are finally ready to admit they are entitled to the same basic rights that most of the rest of us take for granted: The right of self-determination, the right to follow their own cultural practices, to speak their language, to exercise control and dominion over lands they have never ceded or surrendered. From this perspective, consider the requirement of free, prior and informed consent. This is found in several provisions, including Article 32, which says in part:
"States shall consult and co-operate 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."
This paragraph is mainly about imposing an obligation on governments in their dealings with Indigenous peoples. Read it, though, as if it were written as a guarantee to non-Indigenous peoples. We could observe that governments do not seek permission from every single one of us before land and resource decisions are made, but we elect governments to make such decisions on our behalf and those governments then establish decision-making processes intended to ensure that land and resource development decisions are broadly supported by the communities most directly affected by them. Governments that regularly ignore the public on such matters often find themselves out of office at the next election.
Consent does not have to be a permit-by-permit process where everyone has to agree about everything, but it can be about larger processes of inclusion and consensus that give us confidence that decisions are being made for the right reasons.
What does it mean to say that land and resource decisions should be made with the free, prior and informed consent of Indigenous peoples?
One option is to continue the practice of including First Nations in the consultation processes governments use in land and resource decision-making. These processes ensure that First Nations have a chance to make their views known about the potential impact of development. That's certainly better than ignoring them altogether, which was the case until a generation ago. But consultation hasn't prevented conflict and it tends to create uncertainty because there's often no way of knowing ahead of time whether there's been adequate consultation.
There's a better approach. As the Supreme Court of Canada has said now on several occasions, Indigenous peoples are the beneficial owners of their traditional lands. They have the right – guaranteed by our Constitution and reflected in UNDRIP – to decide how to use and manage those lands. It's true that we don't know the precise boundaries of all traditional territories, but it's time to stop using this as an excuse for failing to recognize and respect the basic fact and implications of their ownership.
Giving effect to UNDRIP therefore requires altering the way the government makes land and resource decisions. Today, First Nations are consulted about proposals, but government is the final decision-maker. There's a need for new models that include First Nations as shared decision-makers, so that they are not simply affected by the decision, they are partners in it.
Full inclusion not only respects Indigenous ownership, it also respects the right of Indigenous peoples to decide for themselves how their lands are to be used, in other words, self-determination. Inclusion is also a tool for empowerment, a basic principle of democratic governance. Full inclusion is the pathway to real consent; it meets both the letter and the spirit of UNDRIP; and it will move us away from conflict to co-operation. Finally, full inclusion is a necessary step on the road to reconciliation.
These new processes cannot simply be developed and imposed top-down by government. They need to be developed collaboratively with First Nations and the business community. The good news is that the B.C. government has already committed to implement UNDRIP in full participation with Indigenous communities. They also need to make sure the rest of us are included in this vastly important and timely work.