Indigenous Consultation and Consent in Canadian Law
Consultation with Indigenous Peoples has in recent years become one of the central aspects of government relations with Indigenous communities. Through the Doctrine of the Duty to Consult and the United Nations Declaration on the Rights of Indigenous Peoples, consultation has been made into a legal requirement, as such providing a valuable legal framework through which land defenders can fight the government in courts. Understanding what these legal frameworks for consultation are and their limitations is important in order to work within and beyond these colonial institutions to assert Indigenous sovereignty and support the LAND BACK movement.
Duty to Consult:
The doctrine of the duty to consult and, where appropriate, accommodate Indigenous Peoples, was developed by Canadian courts in order to protect the existing Aboriginal and Treaty rights of Indigenous Peoples, as they are affirmed in the Constitution Act of 1982. This doctrine requires that the government consult Indigenous communities before taking actions that they deem may negatively impact these rights. Consultation is expected to occur whenever the government has knowledge of “the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it.”
The scope of consultation and expectations of accommodation are based on a spectrum set out by the Supreme Court in which the extent of infringement upon the rights of Indigenous communities guides the extent of government response and responsibility. Repercussions for failing to consult, similarly, operate on a spectrum with responses ranging from injunctions, to monetary compensation, to simply being required to carry out consultation.
While the duty to consult provides a valuable legal imperative for consultation to occur and Indigenous rights to be recognized, the doctrine has multiple limitations. While the doctrine requires consultation with Indigenous Communities, it does not require consent to be given by Indigenous communities. The Supreme Court has explicitly specified that Indigenous communities do not get a veto over government decisions, significantly limiting the value and power of consultation. Furthermore, even in cases where Indigenous communities are “accommodated,” the accommodation is done in such a way that Indigenous rights are balanced with other societal interests as opposed to being fully respected. Overall, the duty to consult provides a legal framework for necessitating consultation but does not prevent Indigenous communities’ rights from being violated, limiting its value and power significantly.
Free, Prior and Informed Consent in UNDRIP:
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was endorsed by Canada in 2010. The document states in multiple articles that actions impacting Indigenous communities must not be taken without free, informed and prior consent. Notably, Article 19 of UNDRIP states that “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.” This requirement is rooted in a respect of Indigenous Peoples’ right to self-determination and sovereignty.
Free, informed and prior consent can be broken down into three pieces to be better understood. Free consent means that consent is given in the absence of coercion, manipulation or intimidation. Prior consent means that consent is sought and received sufficiently in advance of any actions being taken. Informed consent means that relevant information about the decision must be provided in an accessible, accurate and transparent way.
The UN Declaration on the Rights of Indigenous Peoples is recognized as an immensely valuable document with principles that must be central to reconciliation. The Truth and Reconciliation Commissions of Canada references UNDRIP 25 times in its calls to action, calling upon institutions to use it as a framework for reconciliation. Despite its immense value and importance, the UNDRIP is not particularly powerful because there is a lack of consequences for failing to comply with the declaration. In the 11 years since Canada endorsed UNDRIP, there have been very few concrete changes in order to comply with the declaration and the failure to comply has been met with no repercussions. For all its important statements on Indigenous rights, within the Canadian legal framework, the UN Declaration on the Rights of Indigenous Peoples has very little power to ensure the rights of Indigenous communities are protected.
Legal frameworks for consultation and consent can provide critical means by which to assert Indigenous rights within the colonial institutions. In their current form, The Doctrine of the Duty to Consult and the UN Declaration on the Rights of Indigenous Peoples do not sufficiently protect the rights of Indigenous Peoples, but they do provide a legal gateway and an opportunity to do better in the future. Fighting for Indigenous communities rights to self-determination and sovereignty is critical for the sake of our plants, all people in what is currently Canada and for reconciliation. This fight is ongoing within and beyond colonial institutions and must be supported in all ways possible. This can in part be done by supporting the work of organizations like Raven Trust, the Assembly of Seven Generations and the Tiny House Warriors.
