The United Nations Declaration on the Rights of Indigenous Peoples provides a crucial framework for reconciliation. The Declaration affirms minimum standards for the survival, dignity, security and well-being of Indigenous peoples around the globe. The Declaration is both a beacon and catalyst for respect, achievement, and renewed hope.
In its Calls to Action, the Truth and Reconciliation Commission of Canada explicitly urged “federal, provincial, territorial, and municipal governments to fully adopt and implement” the Declaration as “the framework for reconciliation.” Both the federal and B.C. governments, among others, have adopted legislation that embraces the UN Declaration.
The UN Declaration is a consensus international human rights instrument. No State in the world formally objects. To date, the UN General Assembly has reaffirmed it 10 times by consensus. The Declaration is the longest discussed and negotiated human rights instrument in UN history — about 24 years.
International human rights declarations do not exist in a vacuum. The Declaration must be read as a whole and used with other relevant international instruments. That said, there has been much attention in the context of resource development projects to the provisions regarding free, prior, and informed consent (FPIC). Neither the Declaration nor FPIC should be perceived as the bogeyman. In 2017 and 2018, the UN General Assembly reaffirmed by consensus the “importance of free, prior and informed consent, as outlined in the United Nations Declaration.”
No new rights are created in the UN Declaration. FPIC flows from the right of all peoples to self-determination, which has been repeatedly affirmed in international law as a core human right. This includes Indigenous peoples’ right to determine their own priorities for development and control their lands and resources.
Indigenous peoples have a right to freely determine whether to say ‘yes’ or ‘no’ or ‘yes with conditions,’ whenever governments or corporations propose actions that could impact their lives, lands, jurisdictions and futures. The former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, emphasized in his July 2013 report, as “a general rule that extractive activities should not take place within the territories of indigenous peoples without their free, prior and informed consent.”
The way FPIC is applied will vary, depending on the facts and law of each situation. The laws, customs and traditions of the Indigenous peoples affected must be respected. FPIC is not a veto. The term “veto” implies an absolute power, i.e. an Indigenous people could block a proposed development regardless of the facts and the law. FPIC must be applied based on consideration of all rights at stake and the importance of their protection. Governments and corporations cannot pick and choose if and when to respect human rights, including FPIC.
The UN Declaration includes some of the most comprehensive balancing provisions in any international human rights instrument. Impact on the legitimate rights of others, including other Indigenous peoples, must always be considered. States have an obligation to ensure a fair and transparent process to resolve disputes.
In addition, proposed development projects must be sustainable. In 2015, the General Assembly adopted by consensus The 2030 Agenda for Sustainable Development, whereby states resolved, between now and 2030, “to end poverty … protect human rights” and ensure environmental protection. Sustainable and equitable development is also highlighted in the UN Declaration.
We appreciate that implementation of the Declaration requires long-term commitment and collaboration. As the Truth and Reconciliation Commission reminded us, “reconciliation is going to take hard work.”
Legislative implementation of the UN Declaration will help ensure that progress made will not be easily reversed. Currently Bill C-262, a private members bill introduced by MP Romeo Saganash, is before the Canadian Senate. It is critically important that the Senate finish its examination of the Bill this spring, to ensure Royal Assent before the next federal election. Having such legislation will contribute to achieving reconciliation, justice, healing and peace. It is time to flatly reject colonialism in favour of a contemporary human rights framework.
–Jennifer Preston is the Indigenous Rights coordinator for the Canadian Friends Service Committee. Paul Joffe is a member of the Québec and Ontario bars, specializing in Indigenous peoples’ rights in constitutional and international human rights law. They were involved in the creation, adoption and, now, implementation of the UN Declaration.