Op-Ed: Indigenous peoples’ right to consent already exists in Canada, UNDRIP or not
The following is an op-ed written by Brenda Gunn, associate professor, Robson Hall Faculty of Law, that originally was published by the Globe and Mail on March 17, 2020.
Canada claims to be a peaceful country – one that respects human rights. Yet that notion is seriously undermined when Canadian political and business leaders advocate denying Indigenous peoples basic human rights.
Manitoba Premier Brian Pallister, for instance, recently advocated against federal legislation to implement the United Nations Declaration on the Rights for Indigenous Peoples, as British Columbia has already done. At the core of this belief is the false thinking that implementing the UNDRIP in Canada would undermine certainty or give Indigenous peoples a new “veto-like” power over government actions.
The worldwide denial of the human rights of Indigenous peoples is the precise reason that the United Nations worked to explicitly recognize those rights with UNDRIP. That document recognizes that Indigenous peoples are peoples, like all other peoples, and that racism can no longer be used to deny Indigenous peoples fundamental human rights.
Related to this principle of equality and non-discrimination is the important recognition that colonization has a negative impact on Indigenous peoples. In particular, the removal of Indigenous peoples from their lands, territories and resources undermines their basic human rights.
The declaration explains that the UN is “convinced that the recognition of the rights of Indigenous peoples in this declaration will enhance harmonious and co-operative relations between the state and Indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.”
This is a critical point in the Canadian context. Many people in Canada seem to believe that recognizing the human rights of Indigenous peoples will tear Canada apart. However, UNDRIP is clear that the denial of Indigenous peoples’ rights to their traditional lands, territories and resources is a cause of the current divisions between Indigenous peoples and Canada.
If we want to increase certainty and promote peaceful relations, protecting the rights of Indigenous peoples must be the basis for this renewed relationship. And Indigenous peoples’ right to participate in decision-making, including free, prior and informed consent, is an important part of resetting this relationship.
The right to consent doesn’t just mean Indigenous peoples agreeing to a given proposal. It also means they have the right to say no or to withhold their consent if they determine that the proposal is not in their best interests. In order to gain consent, governments should not approach Indigenous peoples with an expectation that they will say yes.
The Canadian government should understand this. Consent is, after all, a fundamental principle that underlies democracy and the constitution
The Supreme Court of Canada has already declared that fulfilling the government’s duty to consult and accommodate includes gaining Indigenous peoples’ consent. That happened first in 1997, when the Supreme Court held that the full consent of an aboriginal nation is required “when provinces enact hunting and fishing regulations in relation to aboriginal lands.” It occurred again in 2004, when Canada’s highest court clarified that consent may be required in relation to both proven and asserted-but-not-yet-proven rights.
The Supreme Court also stated in 2014 that “once aboriginal title is established, section 35 of the Constitution Act, 1982, permits incursions on it only with the consent of the aboriginal group,” which was reiterated in a February case.
Indigenous peoples’ right to free, prior and informed consent isn’t even new to international human rights law. UNDRIP isn’t even the first international instrument to have recognized this right. Several international human rights treaties that Canada is a party to – the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, for example – already recognize Indigenous peoples’ right to consent, and the UN declaration simply reiterates this standard.
By addressing the power imbalances between Indigenous peoples and the Canadian state through UNDRIP, consent can become the key to ensuring that Indigenous peoples can exercise their fundamental human rights. Right now, too many Canadians are taking that for granted.