Indigenous nations have sought to assert jurisdiction in their territories since the first settler arrived. Whether through trade, treaty, negotiations, the courts, or via blockade, that demand has been crystal clear. Canadian governments have responded with a variety of half-measures, from the land claim system to consultation guidelines, or open violence and criminalization. Almost always, conflict endures.
Last week the Government of Canada signalled an opportunity to exit this cycle with the end of its objector status, adoption, and implementation of the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP). This includes the contentious principle of free, prior and informed consent (FPIC). While the development could represent that long hoped-for opportunity to reconcile competing claims to sovereignty, the discussion to date has instead been characterized by confusion.
Consider the chronology of Canada’s official positions on UNDRIP – and specifically FPIC – since October 2015.
Fall 2015: When Prime Minister Trudeau campaigned for the Indigenous vote last fall, he seemingly endorsed FPIC, suggesting that on pipelines, mining, or industrial forestry in Indigenous territory, “no would absolutely mean no.” Complementing these commitments, Trudeau promised to implement the Truth and Reconciliation Commission’s Calls to Action and UNDRIP, both of which emphasize FPIC. In nearly seven months since forming government, opportunities have come and gone.
January 2016: One of those opportunities arrived when the ministers of Natural Resources and Environment unveiled interim changes to the environmental assessment process (it is through this process where existing consultation requirements are triggered). The federal government made clear in the new changes, “Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated.” Of course consultation and accommodation do not allow for consent (or lack thereof), meaningfully or not.
April 2016: Last month Cree NDP MP Romeo Saganash introduced a very straightforward private member’s bill that would commit the federal government to implement UNDRIP. It was received with hesitation by the aforementioned Minister of Natural Resources, Jim Carr, who suggested the government is already working on a “Canadian definition” of the Declaration. What is a Canadian definition?
2010 to present: When the previous government signalled intentions to endorse UNDRIP, Ministers of Indian Affairs Strahl, Duncan, and Valcourt, one after another, all emphasized the “aspirational” nature of the Declaration and that section 35 of the constitution already included rights captured by UNDRIP. Interestingly, the latest Minister of Indigenous Affairs Carolyn Bennett used very similar language at the UN last week, suggesting Canada will “fully implement UNDRIP without qualification” through a “section 35 framework.”
Currently, section 35 of the constitution mandates governments to merely consult and accommodate Indigenous communities negatively affected by policy, law, or development. Indeed, over the past 30 years the courts have laid out infringement tests on Aboriginal title and treaty lands, precluding the requirement that governments obtain and respect consent. So unless the current government plans to amend the constitution and import UNDRIP into section 35 to ensure that courts, provinces/territories, and future governments are forced to honour FPIC, Minister Bennett’s promise to “fully” and “without qualification” implement UNDRIP seems untenable. A Canadian definition of UNDRIP remains elusive.
February – May 2016: Adding to this doublespeak by the federal government is shifting language by the First Nations leadership. At an Assembly of First Nations (AFN) energy forum last winter, National Chief Perry Bellegarde took the opportunity to ceremonially blanket the Minister of Natural Resources and call for “inclusion into decision-making” (a significant contrast from free, prior and informed consent). Indeed, the National Chief has oscillated from suggesting there is no veto in UNDRIP – a constant position over the past year – to insisting last week that FPIC means “respecting no” which seems like a veto in all but name. So which is it?
After months of discussion and statements from official representatives, we are somehow no closer to clarity on Canada (or even the AFN’s) position on UNDRIP and FPIC. Will Romeo Saganash’s private member’s bill become law? Will the government introduce its own legislation? Is there a consultation framework to determine the path forward (and who will be represented)? Will the new environmental assessment process include FPIC? How will the provinces and territories be included? Will a constitutional amendment be considered? How exactly does this government interpret section 35? Does the AFN support Indigenous communities’ right to a veto on federal and provincial decisions on their land? The questions go on, and on.
Unfortunately at this point, the only thing we know for sure is that Indigenous communities in the way of development will continue to assert jurisdiction and attempt to enforce their own versions of FPIC. It is a transparency that federal and First Nation politicians could learn from.
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