Operationalizing Free, Prior and Informed Consent Consultation and Unity Conference, March 15, 2017 Gillian Paul, OKT LLP

Introduction On the threshold of some big changes on how Aboriginal people are engaged Consultation is not working Moving from an “Aboriginal Consultation” to an “Aboriginal Consent” Framework

Haida

Haida The duty to consult can vary from a minimum “duty to discuss” to the requirement for full consent of the Aboriginal nation on serious issues

Haida’s Spectrum Analysis The degree of consultation will depend on: (1) how strong the Aboriginal right is, which is being claimed, and (2) how much potential harm could be caused to that Aboriginal right. Less Consultation More Consultation Weak claim, no serious impact Strong claim, serious impact

Strong Claims & Impacts = CONSENT Less Consultation More Consultation Weak claim, no serious impact Strong claim, serious impact Consent

Concerns re Aboriginal Consultation Process without substantive justice Capacity constraints

Aboriginal Consultation: … Favours Process Over Substance The “Aboriginal consultation” framework has resulted in processes that seek to evidence consultation rather than substantively achieve it.

… Sets Up the “Blowing Off Steam” Conundrum The legal remedy for failure to consult is (usually): “Go back and talk some more”

… Imposes Capacity Constraints Imposes consultation processes without corresponding capacity-building commitments

The Canadian Legal Landscape on FPIC

Free, Prior, and Informed Consent UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Art. 19 “free, prior and informed consent” (FPIC) states must have the objective of obtaining consent before: The adoption of legislation or administrative policies that affect indigenous peoples (article 19) The undertaking of projects that affect indigenous peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (article 32).

Canada‘s Position on FPIC Opposed UNDRIP in 2007 Endorsed UNDRIP in 2010 with caveats In 2016, Canada finally ceded its lonely position on the global stage as the only nation that still refused to adopt UNDRIP and announced its implementation

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

Consent or Justified Infringement is Required Para 76: “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the govern-ment’s only recourse is to establish that the proposed incursion on the land is justified under s. 35.”

Consent Discussion The Court explored the concept of “Aboriginal consent” in more detail than previous decisions (and confirms it is a requirement in some cases)

Consent Discussion Focused on the Aboriginal perspective: The compelling and substantial objective of the government “must be considered from the Aboriginal perspective as well as from the perspective of the broader public” (at para 81).

Consent Discussion The SCC did not formally endorse “FPIC” However, the SCC emphasized consent as the starting point: SCC starts with “consent” discussion (need for consent or justified infringement before Crown approvals) (para. 76) SCC goes on to emphasize the importance of consent repeatedly (paras 88, 90, 92, 97 and 124) This emphasis on consent stands in contrast to the approach of earlier SCC decisions (notably Delgamuukw)

Veto: the Language of Fear FEAR: False Evidence Appearing Real The False Evidence: That all development proposals are reasonable That all Aboriginal groups are anti-development That Aboriginal groups are or will be unreasonable in making decisions That other Canadians will suffer a ‘loss’ if Aboriginal groups gain

What is FPIC? Free Prior Informed Consent No coercion, intimidation, or manipulation Must be able to say no No divide and conquer tactics Permission sought well in advance of the activity contemplated with respect for the timelines of the indigenous group Sufficient time to allow for information to be gathered and shared to the decision making process of the group Consent reached before the project begins Information about all aspects of the project is provided Time to understand, access, and analyze information Preliminary scientific and other studies on impacts are done Capacity provided One of the options is that the Indigenous group may withhold consent Need to consider the who, what, and how

How to Practically Operationalize FPIC Freedom from force, intimidation, coercion or pressure by the proponent Mutual agreement on a process for consultation Robust and satisfactory engagement with Aboriginal group prior to approval Sufficient and timely information exchange Proper resourcing, both technical and financial. To allow the Aboriginal group to meaningfully participate Shared objective of obtaining the reasonable consent of the Aboriginal group

SON and Bruce Nuclear: Achieving FPIC Guarantees OPG Commitment: No Deep Geological Repository under Lake Huron unless SON consents

“The Special Rapporteur has consistently emphasized the importance of good faith dialogue and meaningful consultation in the aim of achieving consent as the primary objective of the principles of free, prior and informed consent. The purpose is to “reverse historical patterns of imposed decisions and conditions of life that have threatened the survival of indigenous peoples.” In this way, the “principles of consultation and consent” have the objective of “avoiding the imposition of the will of one party over the other,” and “striving for mutual understanding and consensual decision-making.”” Iaccobucci et al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples,” Torys LLP, (2016), at para 22

Olthuis Kleer Townshend, LLP Thank You Gillian Paul Olthuis Kleer Townshend, LLP Thank You Olthuis Kleer Townshend LLP