1. UN Declaration: Legal Effects and “Free, Prior and Informed Consent”
WEBINAR
Assembly of First Nations
Ottawa, September 13, 2012
Paul Joffe, Barrister and Solicitor

2. Objectives
Underline the importance of international law to Indigenous peoples and their rights
Highlight legal effects of UN Declaration
Enhance understanding of “free, prior and informed consent” (FPIC) in international and domestic law

3. Topics
1. Introduction
2. Indigenous peoples’ collective rights are human rights
3. Legal status and effects of UN Declaration

4. Topics (cont’d)
4. FPIC – international sources and precedents
5. FPIC – domestic approaches
6. Conclusions and recommendations

5. 1. Introduction
Aboriginal rights from the beginning have been shaped by international concepts. … More recently, emerging international norms have guided governments and courts grappling with aboriginal issues. Canada, as a respected member of the international community, cannot ignore these new international norms … Whether we like it or not, aboriginal rights are an international matter.
Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada, “Aboriginal Rights: International Perspectives”, Order of Canada Luncheon, Canadian Club of Vancouver, Vancouver, British Columbia, February 8, 2002.

6. 1. Introduction
The rights of indigenous peoples have remained a priority for the OHCHR and, in pursuing this priority, the Declaration on the Rights of Indigenous Peoples was the Office’s key reference and framework for action.
Human Rights Council, Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples, UN Doc. A/HRC/21/23 (25 June 2012), para. 34 (Conclusions).

7. 1. Introduction Real and potential uses:
Interpret Indigenous rights and State obligations in Canada and internationally
Use Declaration to interpret nature and scope of rights in s. 35 of Constitution Act, 1982
Fill in the gaps in treaties and other agreements between Indigenous peoples and States
Transcend the “box” of domestic law

8. 2. Indigenous peoples’ collective rights are human rights
Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
− Economic, social and cultural rights
− Civil and political rights
− Rights of peoples, and specific groups and individuals
Human Rights Council, Institution-building of the United Nations Human Rights Council, Res. 5/1 (18 June 2007), Annex – Agenda and Framework for the Programme of Work, Item 3.

9. 2. Indigenous peoples’ collective rights are human rights
… this Court considers that indigenous communities might have a collective understanding of the concepts of property and possession, in the sense that ownership of the land “is not centered on an individual but rather on the group and its community.” This notion of ownership and possession of land … deserves equal protection under Article 21 of the American Convention [on Human Rights].
Case of Sawhoyamaxa v. Paraguay, Inter-Am. Ct. H.R. Ser. C.No (Judgment) Mar. 29, 2006, para. 120.

10. 2. Indigenous peoples’ collective rights are human rights
… the Declaration does not attempt to bestow indigenous peoples with a set of special or new human rights, but rather provides a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples. The standards affirmed in the Declaration share an essentially remedial character ...
Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya, UN Doc. A/HRC/9/9 (11 August 2008), para. 86 (Conclusions).

11. 2. Indigenous peoples’ collective rights are human rights
… human rights have a dual nature. Both collective and individual human rights must be protected; both types of rights are important to human freedom and dignity. They are not opposites, nor is there an unresolvable conflict between them. The challenge is to find an appropriate way to ensure respect for both types of rights without diminishing either.
Canadian Human Rights Commission, “Still A Matter of Rights”, A Special Report of the Canadian Human Rights Commission on the Repeal of Section 67 of the Canadian Human Rights Act (January 2008), at 8.

12. 3. Legal status and effects of UN Declaration
The Declaration is an aspirational document which speaks to the individual and collective rights of Indigenous peoples ... the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws.
Aboriginal Affairs and Northern Development Canada, "Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples", 12 November 2010.

13. 3. Legal status and effects of UN Declaration
… , even though the Declaration itself is not legally binding in the same way that a treaty is, the Declaration reflects legal commitments that are related to the Charter, other treaty commitments and customary international law. The Declaration … is grounded in fundamental human rights principles such as non-discrimination, self-determination and cultural integrity …
General Assembly, Situation of human rights and fundamental freedoms of indigenous people: Note by the Secretary-General, Interim report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, UN Doc. A/65/264 (9 August 2010), para. 62.

14. 3. Legal status and effects of UN Declaration
The various sources of international human rights
law - declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms - must, in my opinion, be relevant and persuasive sources for interpretation of the Charter's provisions.
Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at 348.

15. 3. Legal status and effects of UN Declaration
International instruments such as the [UN Declaration on the Rights of Indigenous Peoples] and the Convention on the Rights of the Child may also inform the contextual approach to statutory interpretation ...
First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2012 FC 445 (Federal Court of Canada), para. 353.

16. 3. Legal status and effects of UN Declaration
Non-binding international law may provide legal context that is of assistance in interpreting domestic legislation. … [T]he Court may assign greater or lesser the weight depending on the circumstances.
First Nations Child and Family Caring Society et al. v. Canada (Attorney General), "Memorandum of Fact and Law of the Respondent, the Attorney General of Canada", Respondent's Record, vol. 5, Federal Court of Canada, Dockets T , T , T , 17 November 2011, para. 71.
[NOTE: In this context, Canadian government referred to "non-binding international law, e.g. the United Nations Declaration on the Rights of Indigenous Peoples ..., General Comments and Concluding Observations of international human rights treaty bodies“.]

17. 3. Legal status and effects of UN Declaration
The Declaration was a non-legally-binding document that did not reflect customary international law. While it had no direct legal effect in Canada, Canadian courts could consult international law sources when interpreting Canadian laws, including the Constitution.
Committee on the Elimination of Racial Discrimination, "Consideration of reports, comments and information submitted by States parties under article 9 of the Convention (continued): Nineteenth and twentieth periodic reports of Canada (continued)", Summary record of 1242nd meeting on 23 February 2012, UN Doc. CERD/C/SR.2142 (2 March 2012), para. 39.

18. 3. Legal status and effects of UN Declaration
... the Government’s statement that the Declaration's provisions “do not reflect customary international law” is misplaced and overly broad It is one thing to argue that not all of the Declaration's provisions reflect customary international law, which may be a reasonable position. It is quite another thing to sustain that none of them does, a manifestly untenable position.
Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya: Addendum: Cases examined by the Special Rapporteur (June 2009 – July 2010), UN Doc. A/HRC/15/37/Add.1 (15 September 2010) (Advance Version), para

19. 3. Legal status and effects of UN Declaration
...the principles of customary law relating to the right of self-determination are applicable in the present case, because they do not conflict with the applicable Canadian domestic law. Since these principles of customary law can be ‘incorporated’ into domestic law by Canadian courts, it is respectfully submitted that Canadian courts unquestionably have jurisdiction to apply them.
Reference re Secession of Quebec, “Reply By the Attorney General of Canada to Questions Posed By the Supreme Court of Canada”, S.C.C. File No , 1998, para. 8.

20. 3. Legal status and effects of UN Declaration
Declaration not binding in same way as treaties, but has legal effects:
Canadian courts may use Declaration to interpret domestic law, including the Constitution
Treaty bodies may use it to interpret international human rights instruments
Human rights institutions in Canada may use it to interpret human rights
Indigenous and non-Indigenous governments in Canada may use it to interpret human rights

21. 4. FPIC – international sources and precedents
The primary substantive rights of indigenous peoples that may be implicated in natural resource development and extraction … include, in particular, rights to property, culture, religion, and non-discrimination in relation to lands, territories and natural resources, including sacred places and objects; rights to health and physical well-being in relation to a clean and healthy environment; and rights to set and pursue their own priorities for development, including development of natural resources, as part of their fundamental right to self-determination. Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, UN Doc. A/HRC/21/47 (6 July 2012), para. 50.

22. 4. FPIC – international sources and precedents
Consultation and consent and related safeguards are instrumental to securing indigenous peoples’ rights in the face of extractive industries that operate or seek to operate on or near their territories, but understanding the reach of those underlying substantive rights and the potential impacts on those rights must be a starting point for solving the many questions that arise in this context. (para. 53)
Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, UN Doc. A/HRC/21/47 (6 July 2012), para. 53.

23. 4. FPIC – international sources and precedents
UN Declaration, article 32:
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate 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.
See also Arts. 10; 11(2); 19; 28(1); and 29(2).

24. 4. FPIC – international sources and precedents
... the State has a duty, from the onset of the proposed activity, to actively consult with the Saramaka people in good faith and with the objective of reaching an agreement … (para. 17)
... the Court considers that, regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions. (para. 134)
Case of the Saramaka People v. Suriname, (Preliminary Objections, Merits, Reparations, and Costs), I/A Court H.R., Judgment of November 28, 2007, Series C No. 172.

25. 4. FPIC – international sources and precedents
… the African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions.
African Commission on Human and Peoples' Rights, Communication No. 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Twenty-Seventh Activity Report, 2009, Annex 5, at para. 291

26. 4. FPIC – international sources and precedents
Indigenous and Tribal Peoples Convention, 1989, article 4: 1. Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. 2. Such special measures shall not be contrary to the freely- expressed wishes of the peoples concerned.

27. 4. FPIC – international sources and precedents
The Committee is concerned that infrastructure, development and mining mega-projects are being carried out in the State party without the free, prior and informed consent of the affected indigenous and afro-colombian communities.
Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on Economic, Social and Cultural Rights: Colombia, UN Doc. E/C.12/COL/CO/5 (21 May 2010), para. 9.

28. 4. FPIC – international sources and precedents
The State party must strengthen special measures in favour of Afro-Colombian and indigenous people in order to guarantee the enjoyment of their rights and, in particular, to ensure that they exercise control over their land and that it is restituted to them, as appropriate. The State party should … adopt the pertinent legislation for holding prior consultations with a view to guaranteeing the free, prior and informed consent of community members.
Human Rights Committee, Concluding observations of the Human Rights Committee: Colombia, UN Doc. CCPR/C/COL/CO/6 (4 August 2010), para. 25.

29. 4. FPIC – international sources and precedents
The Committee … asks that the State party provide information on the measures taken to assure the effective participation of the Térraba people and other indigenous peoples whose decision making referring to all the aspects and stages of the plan of the dam of Diquís have been affected, and to obtain its free, prior and informed consent with respect to this project.
Committee on the Elimination of Racial Discrimination, Letter from Chair Anwar Kemel to H.E. M. Manuel B. Dengo, Ambassador, Permanent Representative, Permanent Mission of Costa Rica to the United Nations, Early-Warning Measures and Urgent Procedures, 27 August 2010 at 2. [Unofficial translation]

30. 4. FPIC – international sources and precedents
The client will consider feasible alternative project designs to avoid the relocation of Indigenous Peoples from communally held lands and natural resources subject to traditional ownership or under customary use. If such relocation is unavoidable the client will not proceed with the project unless FPIC has been obtained ...
International Finance Corporation (World Bank Group), “Performance Standard 7: Indigenous Peoples”, 1 January 2012

31. 4. FPIC – international sources and precedents
In relation to Indigenous peoples, the following “minimum core obligation” of States Parties is “applicable with immediate effect”:
States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk.
Committee on Economic, Social and Cultural Rights, General Comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/21 (21 December 2009), para. 55(e).

32. 4. FPIC – international sources and precedents
It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. ... [A]s a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.
R. v. Hape, [2007] 2 S.C.R. 292, para. 53.

33. 5. FPIC – domestic approaches
… the content of the duty [to consult] varied with the circumstances: from a minimum "duty to discuss important decisions" where the "breach is less serious or relatively minor"; through the "significantly deeper than mere consultation" that is required in "most cases"; to "full consent of [the] aboriginal nation" on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, para. 24 (quotes from Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 168).

34. 5. FPIC – domestic approaches
This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.
Haida Nation v. British Columbia (Minister of Forests), supra, para. 48.

35. 5. FPIC – domestic approaches
The Crown … may continue to manage the resource in question pending claims resolution. But, depending on the circumstances … the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. (para. 27)
… as this Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533, at para. 22: "... the process of accommodation of the treaty right may best be resolved by consultation and negotiation". (para. 47)
Haida Nation v. British Columbia (Minister of Forests), supra.

36. 5. FPIC – domestic approaches
... the general economic development of the interior of British Columbia, through agriculture, mining, forestry, and hydroelectric power, as well as the related building of infrastructure and settlement of foreign populations are valid legislative objectives ... these legislative objectives are subject to accommodation of the aboriginal peoples' interests.  This accommodation must always be in accordance with the honour and good faith of the Crown.  
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, per La Forest and L'Heureux-Dubé JJ., paras

37. 5. FPIC – domestic approaches
Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act,
Haida Nation v. British Columbia (Minister of Forests), supra, para. 20.
Right to self-determination and self-government
Right to establish own priorities for development
Right to relationship with lands, territories and resources (LTR)
Right to conservation and protection of environment and productive capacity of their LTR
Right to own means of subsistence
Right to highest attainable standard of health
Right to own, use, develop, control LTR based on traditional occupation and use
Right to non-discrimination

38. 6. Conclusions and Recommendations
International human rights law, including the UN Declaration, is highly relevant in elaborating on Indigenous peoples’ inherent rights
UN Declaration provides a principled framework and context for achieving reconciliation and justice – should be used to interpret Indigenous rights in s. 35 of the Constitution Act, 1982
Indigenous peoples face considerable challenges in convincing Canadian courts to apply FPIC in the resource development context – crucial to reinforce domestic law arguments with international human rights law

39. 6. Conclusions and Recommendations
Canadian government positions continue to undermine Indigenous rights – domestically and internationally – despite endorsement of UN Declaration
Human rights education should be an ongoing priority
Effective use of Declaration should be ongoing objective – e.g. Indigenous constitutions and governance; negotiations with governments and corporations; litigation in Canadian courts; international forums.

40. Assembly of First Nations Paul Joffe, Barrister and Solicitor
THANK YOU!
WEBINAR
Assembly of First Nations
Ottawa, September 13, 2012
Paul Joffe, Barrister and Solicitor