Indigenous rights and the legal politics of Canadian coloniality: what is happening to free, prior and informed consent in Canada?

ABSTRACT

The Supreme Court of Canada has been reshaping Aboriginal law for decades, but characterisations of these changes as purely beneficial to Indigenous groups overlook the inclination of Canadian courts to eschew categorical frameworks of legal obligation toward Indigenous peoples. Past legal principles for defending Indigenous interests have been dismissed or deemphasised in favour of more flexible doctrines. The SCC has structured a Crown-Indigenous relationship that envisions governments and third party interests operating in a self-interested, but jurisprudentially regulated, fashion. This jurisprudential ethics of interrelation, however, holds in reserve the potential for infringing Indigenous rights and title without Indigenous consent. With this framework established as the standard for reconciliatory legal-politics in Canada, stronger conceptualisations of free, prior and informed consent – particularly the ability to withhold and withdraw consent – are susceptible to being cast as unreasonable and disproportionate, as embodied in the spectre of the ‘Indigenous veto’. The UNDRIP and its controversial, indeterminate principle of consent are thus being moulded to a ‘Canadian definition’ which shows little sign of surpassing those obligations already imposed upon governments by the courts, and which raises larger questions about how the declaration is absorbed into the legal-political contexts of individual states.

KEYWORDS:

• Indigenous rights
• United Nations Declaration on the rights of Indigenous peoples
• free, prior and informed consent (FPIC)
• Canada
• Aboriginal law

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Jeremy Patzer is an assistant professor in the Department of Sociology and Criminology at the University of Manitoba in Winnipeg, Canada. His research interests lie in Indigenous rights and the forms of legal resolution and repair employed in settler states in the wake of colonial dispossession.

ORCID

Jeremy Patzer http://orcid.org/0000-0002-1462-0097

Notes

1. Sheryl Lightfoot, ‘Selective Endorsement without Intent to Implement: Indigenous Rights and the Anglosphere’, International Journal of Human Rights 16, no. 1 (2012): 103.

2. For the former, see ‘Government Supports Indigenous Declaration without Reservation: Wilson-Raybould’, 20 July 2016, https://www.cbc.ca/news/indigenous/government-supports-undrip-without-reservation-1.3687315 (accessed August 3, 2018). For the latter, see ‘Justice Minister Jody Wilson-Raybould Says Adopting UNDRIP into Canadian Law “Unworkable”’, 12 July 2016, http://aptnnews.ca/2016/07/12/justice-minister-jody-wilson-raybould-says-adopting-undrip-into-canadian-law-unworkable/ (accessed August 3, 2018).

3. In Canada, the politics of Indigenous rights and (de)colonisation are so intimately infused with the work of the courts that I have the inclination to use the term legal-politics.

4. See Evan Fox-Decent and Ian Dahlman, ‘Sovereignty as Trusteeship and Indigenous Peoples’, Theoretical Inquiries in Law 16, no. 2 (2015): 518–20.

5. Rodolfo Stavenhagen, ‘Human Rights and Indigenous Issues’, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, no. E/CN.4/2003/90, 21 January 2003: Executive Summary.

6. James Anaya, ‘Extractive Industries Operating Within or Near Indigenous Territories’, UN Special Rapporteur's Report, no. A/HRC/18/35, 11 July 2011: 26.

7. Jason Tockman, ‘Eliding Consent in Extractivist States: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’, International Journal of Human Rights 22, no. 3 (2018): 342n1.

8. Lightfoot, ‘Selective Endorsement’, 112. Lightfoot also recounts that Canada's dissatisfaction was deep enough to go beyond the content of the declaration, with McNee expressing that the process had been neither open, nor inclusive, nor transparent. Canada also asserted that the declaration was aspirational, non-binding, of no legal effect in Canada, and not representative of customary international law.

9. Calder v. British Columbia (Attorney General), [1973] SCR 313. As I will discuss below, this marked the advent of the modern comprehensive land claims process.

10. This begun mainly with White and Bob, one of the few key precedents in modern Aboriginal law not to come from the SCC. R. v. White and Bob, [1964] 50 DLR (2d) 613 (BCCA), aff’d [1965] 52 D.L.R. (2d) 481 (SCC).

11. Constitution Act, 1982, s. 35, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. In Canada, the umbrella terms ‘Indigenous’ and ‘Aboriginal’ therefore encompass the three categories of Indian, Inuit and Métis. Though replaced by terms such as ‘First Nations’ in common parlance years ago, the antiquated term ‘Indian’ lives on in Canada in legal and constitutional usage.

12. Cited in Guerin v. The Queen [1984] 2 SCR 335 at 342. The quote is from a report Mr. Anfield submitted to the Indian Commissioner for British Columbia in 1955.

13. Ibid., 376.

14. John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 4th ed. (Markham: LexisNexis), 466.

15. Ibid., 463.

16. Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 SCR 245.

17. Ibid., 81.

18. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 [Haida Nation].

19. Jamie Dickson, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Saskatoon: Purich, 2015). Dickson counts himself among those critical of the Court's concept of the fiduciary duty in Aboriginal law and thus offers a comprehensive outline and critique of this Crown obligation.

20. Ibid., 9.

21. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C. 1985, App. II, No. 5. The SCC has since interpreted the term ‘Indians’ in nineteenth century constitutional parlance as applying to all categories of Indigenous peoples in Canada: status and non-status Indian (according to the Indian Act), Inuit, and Métis.

22. Constitution Act, 1982, s. 52, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

23. Delgamuukw v. British Columbia, [1997] 3 SCR 1010 [Delgamuukw].

24. Ibid., 165.

25. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C. 1985, App. II, No. 5.

26. For more on the confusion and contradictions this created, see Kerry Wilkins, ‘R. v. Morris: A Shot in the Dark and Its Repercussions’, Indigenous Law Journal 7, no. 1 (2008): 12; Kerry Wilkins, ‘Dancing in the Dark: Of Provinces and Section 35 Rights After 2010’, Supreme Court Law Review 54 (2011): 533.

27. Nigel Bankes and Jennifer Koshan, ‘The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands’, ABlawg: The University of Calgary Faculty of Law Blog, October 28, 2014, http://ablawg.ca/2014/10/28/the-uncertain-status-of-the-doctrine-of-interjurisdictional-immunity-on-reserve-lands/.

28. Ibid.

29. MacMillan Bloedel v Mullin, [1985] 2 WWR 722; [1985] 2 CNLR 26 at para. 27 (BCSC).

30. Ibid.

31. MacMillan Bloedel Ltd. v. Mullin, [1985] 61 BCLR 145; [1985] 2 CNLR 58 at para. 78–79 (BCCA).

32. Nigel Bankes, ‘The Implications of the Tsilhqot'in (William) and Grassy Narrows (Keewatin) Decisions of the Supreme Court of Canada for the Natural Resources Industries’, Journal of Energy & Natural Resources Law 33, no. 3 (2015): 194–5.

33. Haida Nation, 14.

34. Ibid., 18.

35. Ibid.

36. Ibid., 35.

37. Ibid., 39.

38. Ibid., 42.

39. Mikisew Cree Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388.

40. Ibid., 2.

41. Ibid., 48.

42. Haida Nation, 42.

43. Haida Nation, 48; Chippewa of the Thames v. Enbridge, 2017 SCC 41, [2017] 1 SCR 1099 at para. 59.

44. Delgamuukw, 168.

45. Haida Nation, 48.

46. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 257 at para. 76–77.

47. Sasha Boutilier, ‘Free, Prior, and Informed Consent and Reconciliation in Canada: Proposals to Implement Articles 19 and 32 of the UN Declaration on the Rights of Indigenous Peoples’, Western Journal of Legal Studies 7, no. 1 (2017): 4.

48. Paul Joffe, ‘Canada's Opposition to the UN Declaration: Legitimate Concerns or Ideological Bias?’, in Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action, eds. Jackie Hartley, Paul Joffe and Jennifer Preston (Saskatoon: Purich, 2010), 80.

49. United Nations Expert Mechanism on the Rights of Indigenous Peoples, ‘Final Study on Indigenous Peoples and the Right to Participate in Decision-making’, no. A/HRC/EMRIP/2011/2, 26 May 2011, 20.

50. UN FAO, Free, Prior and Informed Consent: An Indigenous Peoples’ Right and a Good Practice for Local Communities (Rome: FAO, 2016), 3.

51. Marco Odello, ‘Indigenous Peoples’ Rights and Cultural Identity in the Inter-American Context’, International Journal of Human Rights 16, no. 1 (2012): 39.

52. Mauro Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead’, International Journal of Human Rights 16, no. 1 (2012): 10. Emphasis is Barelli's.

53. Ibid., 11. Emphasis is Barelli's.

54. Ibid., 11.

55. Ibid., 14.

56. James Anaya, ‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development’, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, no. A/HRC/12/34, 15 July 2009: 46.

57. Ibid., 47.

58. Delgamuukw, 165.

59. Haida Nation, 43.

60. R. v. Côté, [1996] 3 SCR 139 at para. 88; R. v. Morris, 2006 SCC 59, [2006] 2 SCR 915 at para. 47–48. The term ‘insignificant interference’ first appears in R. v. Morris.

61. Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311, [2017] 3 FCR 298 at para. 3, leave to appeal to SCC granted.

62. Boutilier, ‘FPIC and Reconciliation’.

63. In his mandate letter to Carolyn Bennett, Minister of Indigenous and Northern Affairs, Trudeau wrote that ‘no relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.’ The first in his list of priorities for the new minister was ‘to implement recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples’. Justin Trudeau to Carolyn Bennett, Ottawa, November 15, 2015, in Mandate Letters, (Ottawa: Office of the Prime Minister, 2015), https://pm.gc.ca/eng/minister-indigenous-and-northern-affairs-mandate-letter_2015.

64. Indigenous and Northern Affairs Canada, ‘Canada's Statement of Support on the UN Declaration on the Rights of Indigenous Peoples’, November 12, 2010, https://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142 (accessed August 1, 2018). Emphasis mine.

65. Gloria Galloway, ‘Ottawa Drops Objections to UN Resolution on Indigenous Consent’, Globe and Mail, April 24, 2017. Shortly thereafter Carolyn Bennett's portfolio was renamed Crown-Indigenous Relations.

66. Tockman, ‘Eliding Consent’, 339.

67. Department of Justice, ‘Principles Respecting the Government of Canada's Relationship with Indigenous Peoples’, July 14, 2017, http://www.justice.gc.ca/eng/csj-sjc/principles-principes.html (accessed August 1, 2018). Emphasis mine.

68. Dwight Newman, ‘Ottawa's Sly Change on Consent May Damage Indigenous Relationships’, Globe and Mail, August 3, 2017.

69. Lightfoot, ‘Selective Endorsement’, 116.

70. Ibid., 119.

71. APTN National News, ‘Ottawa Developing “Canadian Definition” of UNDRIP, says Liberal Minister’, April 21, 2016, http://aptnnews.ca/2016/04/21/ottawa-developing-canadian-definition-of-undrip-says-liberal-minister/ (accessed July 20, 2018).

72. In the legislative sphere, the most common occurrence would be the periodic banning of hunting or fishing for all persons – including rights-bearing Indigenous harvesters – in regions where the government deems that population decline of a particular species warrants it.

73. ‘UN Envoy Accused of “Publicity Stunt” Promises “Constructive” Advice for Harper Government on Aboriginal Issues’, National Post, October 7, 2013.

74. Larry Lintz, ‘UN Declaration Doesn't Give Canadian First Nations a Veto: Minister’, Vancouver Sun, June 30, 2016.

75. There is an entire line of analysis to be conducted, beyond the scope of this article, on the varying interpretations of FPIC and how they relate to the notion of veto power. Unsurprisingly, critics of Indigenous claims readily conflate consent with veto, while advocates for Indigenous rights allow for more nuance. According to Paul Joffe, the term veto implies ‘complete and arbitrary power, with no balancing of rights’ – which the UNDRIP does not provide. From this perspective, the right to withhold consent in a processual, consultative and consensus-seeking relationship does not necessarily constitute veto power. Paul Joffe, ‘Veto and Consent – Significant Differences’, unpublished paper, March 26, 2016, 1.

76. Jennifer Henderson and Pauline Wakeham, ‘Colonial Reckoning, National Reconciliation?: Aboriginal Peoples and the Culture of Redress in Canada’, ESC: English Studies in Canada 35, no. 1 (2009): 16–17.