Recent Supreme Court decisions fail to embrace promise of UNDRIP and renewed nation to nation relationship

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OKT lawyers Krista Nerland, Matt McPherson and Lorraine Land have produced this long-form guide to the Court’s new decisions on the duty to consult and accommodate.  This blog post contains excerpts from the guide’s discussion of how the decisions treat the United Nations Declaration on the Rights of Indigenous Peoples.

No nation-to-nation relationship can be built on unilateral Crown power

It’s been just over a week since the Supreme Court of Canada released its new decisions on the duty to consult and accommodate, in Clyde River and Chippewas of the Thames.  One of the big questions in the decisions is what consultation means when the duty to consult and accommodate falls at the high end of the spectrum. This is sometimes called “deep consultation.”

On this issue, the Court’s decisions fall short of recognizing a duty to consult and accommodate consistent with the nation-to-nation relationship between Indigenous peoples and the Crown.  The benchmark for this is the principle of free, prior, informed (FPIC) as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

The right to free, prior, and informed consent is enshrined in Articles 19 and 32(2) of UNDRIP, which state:

Art 19.  States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Art. 32(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.

In practice, the principles of free, prior, and informed consent serve to adjust the balance of power in resource development processes so that the people and communities that endure the consequences of a proposed activity have more influence in how and whether a project moves forward.  At the hearing in Clyde River, drawing on the analysis of the UN Special Rapporteur on Indigenous Rights, the Inuvialuit Regional Corporation argued that FPIC can be distilled into six key principles:

a. Freedom from force, intimidation, manipulation, coercion or pressure by a proponent
This component reflects the fact that consent cannot be valid if it is extracted through force, threats, or intimidation.

b. Mutual agreement on a process for consultation
This element requires the Crown and the rights-holders to come to a common understanding about what steps are required to obtain reasonable consent.

 c. Robust and satisfactory engagement with the Aboriginal group prior to approval
Robust engagement requires the commitment of time, energy and resources to understand the positions and interests of the Aboriginal group.

d. Sufficient and timely information exchange
This element is necessarily multi-directional. It requires an exchange of information on the nature of the project, as well as a demonstrated understanding of the Aboriginal right at stake and the specific nature of the potential impacts on the Aboriginal interests in question, including impacts on the rights of future generations.

e. Proper resourcing, both technical and financial, to allow the Aboriginal group to meaningfully participate
The party seeking to obtain consent must ensure that the treaty rights-holder has adequate financial and technical resources to responsibly study the risks and rewards of a proposed development on present and future generations, to understand their legal rights with respect to the proposal, and to present their positions for consideration.

f. Shared objective of obtaining the reasonable consent of the Aboriginal group
Consent in FPIC is “a complex process of building a relationship, exchanging information, conducting analysis” and fully integrating an Aboriginal community in the process of discussion, analysis and decision-making^[1]. The objective of consent acts as overarching guide to the FPIC process.

Freedom from force and intimidation was already enshrined in Canadian law.  After Clyde River, three more of these principles are gaining a foothold in Canadian law on the duty to consult:

• The Court emphasized the importance of proper resourcing, and signalled that consultation may be insufficient to discharge the Crown’s constitutional obligations where these resources are not provided. This reflects the “proper resourcing” requirement. 
• The Court also highlighted the crucial role of information exchange. In Clyde River, the failure to provide digestible information in a timely way was part of why the consultation process failed to pass constitutional muster. 
• And the Court emphasized that the failure to reach and demonstrate an understanding of the impact of the Project on Inuit treaty rights is essential in deep consultation. In particular, where Indigenous groups have “squarely raised concerns about Crown consultation” before the NEB, the NEB will usually have to address those concerns in its reasons.  It is not enough for the NEB to address “environmental impacts” generally – the focus has to be on the impact of the project on the rights asserted by the Indigenous group. This, in turn, supports robust engagement with rights-holding groups. 

Two principles are left out, however: participation of the rights-holding group in the design of the consultation process, and structuring the consultation process around the objective of obtaining reasonable consent. 

The problem is that these last two principles are probably the most important and transformational parts of FPIC.  Without them, deep consultation looks a lot like a traditional court process, with an oral hearing in which Indigenous rights-holders can participate actively.     

This is not the right way to think about Indigenous rights in Canadian law.  Indigenous rights are constitutional rights; the duty to consult and accommodate flows from these rights, and so should reflect their special importance.  More importantly, though, the duty to consult and accommodate is a reflection of ongoing Indigenous sovereignty and nationhood.  A court-like process, determined solely by the Crown and in which an approval can go forward even where there is no consent, does not reflect the sovereignty of Indigenous rights-holders (or asserted rights-holders) with respect to their own traditional lands and resources.  Since the consultation process is still dictated by the Crown, it does not reflect a nation-to-nation relationship.  No nation-to-nation relationship can be built on unilateral Crown power.  

The two new SCC decisions set up the courts as a referee in the Crown/Indigenous relationship. In considering the question of the meaningfulness of consultation and accommodation, the courts have a chance to make the relationship less one-sided, less unilateral. However, we don’t see the relationship as becoming truly nation-to-nation until Canadian law recognizes a hard boundary of Indigenous consent that the Crown is not allowed to violate.

The two pieces of FPIC the Court did not recognize or affirm in this decision are central in taking consultation towards something that recognizes Indigenous sovereignty and the nation-to-nation relationship – the right to co-design the consultation process, and the objective of consent.  These are the two pieces that fundamentally challenge the idea that the Crown alone has the right to decide what happens on Indigenous lands.

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^[1] Lorraine Land, “Who’s Afraid of the big, bad, FPIC? Evolving integration of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law and policy” (2016) 4:2 Northern Public Affairs 42 at 43