Consultation and Free, Prior, and Informed Consent

The McLachlin Court's position on the right of Aboriginal peoples to participate in the Canadian state's decision making processes where those decisions may adversely affect their rights is a step back from the position staked out by the preceding Lamer Court.  In his reasons for decision in Delgamuukw (1997), then Chief Justice Antonio Lamer, speaking of what might be required to constitutionally justify state infringement of Aboriginal title, wrote:

... aboriginal title encompasses within it a right to choose to what ends a piece of land can be put.  ...  This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law....  The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (para. 168; italics mine)

There are three things I want to note about this passage here. First, Aboriginal title encompasses the right to exclusive use and occupation of the land (para. 166).  It also encompasses the right to choose to what to uses the land can be put (para. 166).  The latter encompassed right flows from the first.  Thus, Aboriginal title encompasses the right to exclusively choose whether and how to use the land.    Second, the right to consultation in the face of state infringement of title, and along with it the principle that in certain circumstances the state may not proceed without indigenous consent, are aimed at avoiding encroaching unnecessarily not only on land subject to Aboriginal title but also on the right to exclusively decide whether and how the land is to be used.  Third, Justice McLachlin (as she then was), who had been on the Supreme Court of Canada for a decade when the reasons for decision in Delgamuukw were released, there stated - without elaborating on - her concurrence with Chief Justice Lamer.

On 7 January 2000, she was sworn in as Chief Justice of the Supreme Court of Canada.

Nearly seven years after Delgamuukw, after quoting from the aforementioned passage three times in her reasons for judgment in Haida Nation (2004), Chief Justice Beverley McLachlin wrote:

This process [of accommodation through consultation] does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. (para. 48)

Absent the addition of other factors making a difference, the same logic that supported the Chief Justice's confirmation of the Crown's duty to consult Aboriginal peoples in regard to their Aboriginal titles and rights even where they have yet to establish their title or rights in courts of law should also have supported the principle that their consent is sometimes prerequisite to a project going ahead even where their title or rights have yet to be established.  What the additional factor or factors might be for denying that indigenous consent is ever a prerequisite to Crown or Crown-sanctioned activity on indigenous land pending final proof of title, she left unsaid.  Instead of revealing her mind, she simply pronounced that it is "appropriate only in cases of established rights".

The Chief Justice's approach is unfortunate for a couple of reasons. First of all, it tempts the state into assuming that although some modification by way of consultation and accommodation may be required, it may at the end of the day proceed with any project it wishes.  That the assumption is wrong is clear once one understands that a project's - including a modified project's - potentially adverse impacts may be too great for it to be in keeping with the honour of the Crown to proceed.  Secondly, where a project is per se inconsistent with the honour of the Crown, the state may still proceed if it has the consent of the indigenous community in question.  In such cases, Aboriginal consent is clearly, despite the Chief Justice's words to the contrary, prerequisite to the project going ahead.

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The Chief Justice's "no veto" language has drawn criticism internationally, perhaps most notably from James Anaya, the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. The Special Rapporteur devoted the second half of his 2009 annual report to the Human Rights Council to "the duty of States to consult with indigenous peoples in decisions affecting them."  As to his rationale for doing so, he explained:

The Special Rapporteur has sought to identify common patterns of problems facing indigenous peoples throughout the world and to develop measures to target those issues directly. He has noticed, frequently and in a wide variety of situations, a lack of adequate implementation of the duty of States to consult with indigenous peoples in decisions affecting them, and a need on the part of Governments and other stakeholders for orientation about the measures necessary for compliance with this duty. The Special Rapporteur has observed that, without the buy-in of indigenous peoples, through consultation, at the earliest stages of the development of Government initiatives, the effectiveness of Government programmes, even those that are intended to specifically benefit indigenous peoples, can be crippled at the outset. Invariably, it appears that a lack of adequate consultation leads to conflictive situations, with indigenous expressions of anger and mistrust, which, in some cases, have spiralled into violence. (para. 36)

After noting that the duty of states to consult with indigenous people on decisions affecting them is expressly affirmed in the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169, and is grounded in a number of core human rights treaties of the United Nations, the Special Rapporteur explained the duty's connection to a number of universally accepted human rights, including particularly the right of self-determination:

This duty is a corollary of a myriad of universally accepted human rights, including the right to cultural integrity, the right to equality and the right to property, as indicated in the referenced statements and decisions, respectively, of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Inter-American Court of Human Rights. More fundamentally, it derives from the overarching right of indigenous peoples to self-determination and from related principles of democracy and popular sovereignty. The United Nations Declaration on the Rights of Indigenous Peoples affirms in its article 3 that: "Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." This affirmation responds to the aspirations of indigenous peoples worldwide to be in control of their own destinies under conditions of equality, and to participate effectively in decision-making that affects them. The right of self-determination is a foundational right, without which indigenous peoples' human rights, both collective and individual, cannot be fully enjoyed. Related principles of popular sovereignty and democracy join in opposition to government by imposition and uphold the imperative of government by consent. Consistent with these principles, the duty of States to consult with indigenous peoples in decisions affecting them is aimed at reversing the historical pattern of exclusion from decision making, in order to avoid the future imposition of important decisions on indigenous peoples, and to allow them to flourish as distinct communities on lands to which their cultures remain attached. (para. 41)

Distinguishing state recognition of indigenous consent as the objective of consultation from a grant of a general "veto power", the Special Rapporteur described consultation's objective as follows:

The character of the consultation procedure and its object are also shaped by the nature of the right or interest at stake for the indigenous peoples concerned and the anticipated impact of the proposed measure. The Declaration establishes that, in general, consultations with indigenous peoples are to be carried out in "good faith ... in order to obtain their free, prior and informed consent" (art. 19). This provision of the Declaration should not be regarded as according indigenous peoples a general "veto power" over decisions that may affect them, but rather as establishing consent as the objective of consultations with indigenous peoples. In this regard, ILO Convention No. 169 provides that consultations are to take place "with the objective of achieving agreement or consent on the proposed measure" (art. 6, para. 2). The somewhat different language of the Declaration suggests a heightened emphasis on the need for consultations that are in the nature of negotiations toward mutually acceptable arrangements, prior to the decisions on proposed measures, rather than consultations that are more in the nature of mechanisms for providing indigenous peoples with information about decisions already made or in the making, without allowing them genuinely to influence the decision-making process. (para. 46; italics added)

He then explained how the strength or importance of the objective can vary:

Necessarily, the strength or importance of the objective of achieving consent varies according to the circumstances and the indigenous interests involved. A significant, direct impact on indigenous peoples' lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples' consent. In certain contexts, the presumption may harden into a prohibition of the measure or project in the absence of indigenous consent. (para. 47)

With Chief Justice McLachlin's "no veto" remarks among his targets, the Special Rapporteur elaborated on the distinction between recognizing indigenous consent as consultation's objective and the bestowal of a "veto power":

In all cases in which indigenous peoples' particular interests are affected by a proposed measure, obtaining their consent should, in some degree, be an objective of the consultations. As stated, this requirement does not provide indigenous peoples with a "veto power", but rather establishes the need to frame consultation procedures in order to make every effort to build consensus on the part of all concerned. The Special Rapporteur regrets that in many situations the discussion over the duty to consult and the related principle of free, prior and informed consent have been framed in terms of whether or not indigenous peoples hold a veto power that they could wield to halt development projects. The Special Rapporteur considers that focusing the debate in this way is not in line with the spirit or character of the principles of consultation and consent as they have developed in international human rights law and have been incorporated into the Declaration. (para. 48; italics added)

Seen in their proper light, then, the Special Rapporteur continues:

These principles are designed to build dialogue in which both States and indigenous peoples are to work in good faith towards consensus and try in earnest to arrive at a mutually satisfactory agreement. As emphasized earlier, the duty of States to consult with indigenous peoples and related principles have emerged to reverse historical patterns of imposed decisions and conditions of life that have threatened the survival of indigenous peoples. At the same time, principles of consultation and consent do not bestow on indigenous peoples a right to unilaterally impose their will on States when the latter act legitimately and faithfully in the public interest. Rather, the principles of consultation and consent are aimed at avoiding the imposition of the will of one party over the other, and at instead striving for mutual understanding and consensual decision-making. (para. 49)

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An attentive reading of Haida Nation clearly shows that Chief Justice McLachlin assumed that where government's duty to consult gives rise to a duty to accommodate, it can be obliged to seek the agreement of the affected Aboriginal people before deciding to go ahead with a plan or project, even where the right in question has yet to be established.  Clearly, therefore, the Chief Justice presupposed that indigenous consent is at least an objective of consultation-accommodation.  Moreover, as I have already noted, pace her words in Haida Nation, indigenous consent is, as a matter of law, a condition for projects going ahead which are otherwise inconsistent with the honour of the Crown, whether the right in question has been established or not.  

The Chief Justice's incoherent position on indigenous consent is partly due, as the Special Rapporteur's critique suggests, to her incorporation of the notion of a veto into her reasoning.  Veto power implies the right to the final or otherwise ultimate say on whether a project goes forward or not.  It makes some sense, then, to speak of a veto in situations where indigenous peoples have the right to nix projects that might otherwise be consistent with the honour of the Crown.  Perhaps, as the Chief Justice suggests, such a veto power sometimes attaches to proven Aboriginal title, especially given its associated exclusivity.  But the notion is ill-suited to describing the right of Aboriginal peoples to refuse to consent to projects inconsistent with the honour of the Crown - or to helping explain the correlative duty of governments to obtain their consent before going ahead with such projects.  It is not true that the only or even a basic obstacle to these projects going forward is a lack of indigenous consent.  The basic obstacle is the honour of the Crown.  That is to say, in more general terms, it is the law.

Since the seriousness of a proposed project's potentially adverse effects on an Aboriginal people's (claimed as well as proven) Aboriginal title or rights can render the project inconsistent with the honour of the Crown and thus in need of their consent in order to proceed, and since seriousness is a matter of degree, the Chief Justice might have constructed a coherent legal position on consultation and consent had she, like the Special Rapporteur, made explicit her assumption that indigenous consent is an objective in consultation, acknowledged that the strength or importance of the objective falls somewhere on a scale depending on the circumstances, and affirmed that at least at the one extreme the objective is so important that the projects cannot proceed without indigenous consent, even in cases in which the right in question has yet to be established.  Unhappily, what the Chief Justice might have done she did not.

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While we wait for the common law courts through creative interpretation or other means to correct for the Chief Justice's misstep in saying that "[t]he Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights," Aboriginal communities and their lawyers may find it helpful to try to identify some of the sorts of plans or projects that may be described as too serious in their consequences and thus too offensive to the honour of the Crown to go forward absent indigenous consent.  The Special Rapporteur's remarks on situations internationally and/or regionally recognized as requiring indigenous consent provide a useful point of departure for reflection.  Thus, he wrote:

The Declaration recognizes two situations in which the state is under an obligation to obtain the consent of the indigenous peoples concerned, beyond the general obligation to obtain the consent as the objective of consultations. These situations include when the project will result in the relocation of a group from its traditional lands, and in cases involving the storage or disposal of toxic waste within indigenous lands (arts. 10 and 29, para. 2, respectively). In the same vein, in a case involving the Saramaka people of Suriname, the Inter-American Court of Human Rights held that "regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramaka, but also to obtain their free, prior, and informed consent, according to their customs and traditions".

For the aforementioned Saramaka decision, see here.