The Matter of “free, prior and informed consent”

 

Shawn McCarthy’s column of 16 September first-nation-sets-pipeline-precedent12-9-16-gm discussed the question of what “consent” means to First Nations’ communities through which proposed pipelines run through. In Alberta, the New Democrat government agreed to be bound by the United Nations Declaration on the Rights of Indigenous Peoples. The federal government also  agreed to be so bound after taking office from the Conservative government last October. The federal government has not yet officially agreed to the Declaration.

In McCarthy’s view the recent decision by the U.S. federal government to stop development of the $3.7 billion oil pipeline through sacred territory of the Standing Rock Sioux reservation signals a growing sense of community and co-operation between First Nations opposing pipeline development. For pipeline developers the specter of litigating “free, prior and informed consent” consistent with the U.N. declaration must be daunting. What some observers of the Kinder-Morgan TransMountain project thought would be a fairly easy process, given the pre-existing pipeline and right of way, now looks challenging.

So what does the Declaration say? Firstly, the rehearsals in the preamble will keep lawyers and judges busy for the next century.  As drafted, the document is a consensus document whose preamble attempts to address a wide range of sensibilities through “acknowledging,” “recognizing,” “confirming,”  “affirming,” “encouraging,” and “bearing in mind” certain principles and historical events (in the most general terms). Article 1 seems bizarrely to affirm that indigenous peoples are persons and enjoy all the rights and fundamental freedoms  under the U.N. charter. Article 2 declares indigenous peoples “are free and equal to all other peoples.”

More controversially to nation states is Article 3 that states “Indigenous peoples have the right to self-determination: while article four states: indigenous peoples “have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”  The latter point has also been a bone of contention as resource development in most developed and undeveloped states has meant royalties to regional or national governments but not to First Nations.

Adding another wrinkle is article 6 -“Every indigenous individual has the right to a nationality.”  This statement along with articles three and four would appear to strengthen First Nations’ claims  to self-government in courts of national jurisdiction.

Article 8,  section 1 provides that Indigenous peoples are not to be forced to assimilate  or see their culture destroyed. Subsequent articles recognize indigenous groups ability to establish and operate their own educational systems, preserve their languages, culture and media.

Article 19 reads in full:  “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.” While not speaking directly to resource development, this provision along with articles declaring rights to  improve . “their economic and social conditions, ” while states shall take measures to 
“ensure continuing improvement of their economic and social conditions. “

Articles 26 through 32 address questions of indigenous peoples’ rights to their lands and to development on these lands.

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without
their free, prior and informed consent.

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.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

The acceptance of the U.N. declaration by the Alberta and federal governments constitutes a vast legal obligation to recognize, respect, consult, finance, and in effect undo many of the structures that have governed the relationship between the Canadian state and First Nations over the past 150 years. For those working in the fossil fuel industry, the obligations now assumed by Ottawa and Edmonton will (1) be adjudicated for years, if not decades or (2) settled constructively, respectfully, and with a view to the long term sustainability of both indigenous and non-indigenous communities.

Cartoon Edmonton Journal13-5-17 EJ

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