Consent by any other name… still means consent

– By: Dr Konstantia Koutouki –

 

In international law, or elsewhere for that matter, an agreed upon definition of FPIC does not seem to exist. This has given rise to a debate as to the interpretation of “consent”. On one hand it is argued that it really means consultation plus. The plus referring to criteria, that once met, make consent obligatory. Another interpretation of consent in this context is, of course, the capacity to withhold consent under any circumstances. This so-called veto power appears to be more and more the norm if we consider national case law such as the Tsicholt’in case in Canada and some regional and international decisions such as Saramaka People v. Suriname. Withholding consent to economic development projects has, generally speaking, not been the goal of most communities. Indigenous people simply want an equal status in the decision-making process to ensure that their economic interests are encompassed as well as their social and cultural needs. Communities have been fighting to have decisions regarding these economic and cultural community preoccupations come from within and not according to standards of mainstream society or commercial ventures.

The explanation of FPIC provided by Antoanella-Iulia Motoc is one of the most often cited.  She suggests that: “Free” means that Indigenous peoples should not have been coerced, intimidated, or manipulated into consenting. Prior refers to obtaining consent before initiating an activity and allowing sufficient time for Indigenous peoples to debate the issue within their own decision-making processes. Informed implies that all relevant information relating to the proposed activity have been provided to the Indigenous peoples. Consent requires that Indigenous peoples agree to the proposed activity, and does not preclude the issuance of additional conditions by Indigenous peoples and the right to withhold consent at a future point in the development. The UN REDD+ 2011 guide on this subject reinforces the need to view FPIC as a communicative and consultative process: “FPIC needs to be understood as a right that requires the project developer to undertake an ongoing process of communication, with consent sought at key stages in the process.” In addition, the 2011 Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples report maintains that the information given to obtain consent needs to be “objective, accurate and presented in a manner and form understandable to indigenous peoples.”

In 2007 the General Assembly of the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This declaration, although non-binding is incredibly influential in the realization of Indigenous rights. According to OHCHR, UNDRIP:

…is the most comprehensive international instrument on the rights of Indigenous peoples. It gives prominence to collective rights to a degree unprecedented in international human rights law; it establishes a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world; and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of Indigenous peoples.

UNDRIP only uses the term “free, prior informed consent” throughout the document. Therefore, irrespective of the issue addressed, the declaration makes it clear that there are no different levels of consent, FPIC is the default standard. In fact, where consent was a possible by-product of consolation in ILO169, in UNDRIP article 19 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.”

A practical and obvious interpretation of this is that consultation is needed to reach FPIC before act affecting Indigenous communities are to be carried out. FPIC then is a prerequisite rather than a desirable outcome. Although this view may seem optimistic there is mounting evidence that is in fact the way of the future for negotiations involving Indigenous communities.

The Tsilhqot’in Nation v British Columbia case from the Supreme Court of Canada in 2014 is a perfect example. The impact of a case such as Tsilhqot’in is far greater than one would think given the tremendous influence Canadian mining companies have on the global mining industry. According to the 2014 Facts and Figures of the Canadian Mining Industry report, as of December 2013 the geographic reach of TSX-listed companies included 3,959 projects or 48% of the total, outside of Canada.

The Tsilhqot’in Nation, is a semi-nomadic grouping of six bands, tracing their roots in central British Columbia for centuries. In 1983, British Columbia granted a commercial logging licence on land the Tsilhqot’in people deemed to be part of their traditional territory. The band sought a declaration prohibiting commercial logging on the land. The claim for Aboriginal title over 4,380 square kilometres included not only village sites but also territories that the Tsilhqot’in’s ancestors used for hunting, fishing and other events but did not include all of the Tsilhqot’in traditional territory. The federal and provincial governments opposed the title claim. In 1998, Chief Roger William of one of the six bands brought an action on behalf of the Tsilhqot’in against British Columbia and Canada.

In rendering the decision, the Chief Justice wrote:

The practical result may be a spectrum of duties applicable over time in a particular case. At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.

Hence according to the Court there is a sliding scale of increased duties depending on how close the territory in which permission for development is sought and the requisite level of consent. Once title is recognised then only FPIC will do. The Court goes on to specify that if without FPIC economic development activities were commenced before title was established and now with title secured, would impede on the rights acquired with title then the project may be stopped in order for consent to be sought and bring the activity in line with Indigenous priorities. This also applies to legislation, in the sense that a piece of legislation may be deemed inapplicable “inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.”

In fact, the Court goes as far as saying that “governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”  The Court in clear and unambiguous way warns governments and individuals seeking establish development project on titled or not yet titled Indigenous land to seek FPIC as any other option is anything by certain as to its legal enforcement.

Given this case it is not surprising that Canada has announced recently (2016) that will accept the UNDRIP without reservations. The importance of the Tsilhqot’in case cannot be overstated. This case unequivocally sends a message that Indigenous communities should be given control over their economic future and FPIC is a critical part. Echoing to a certain degree UNDRIP the Supreme Court did not only make FPIC a prerequisite in economic development occurring on territory where title has been legally recognised as belonging to an Indigenous nation but also to a large extend for communities without any title and those in the process of obtaining title. As the Court put it, if you want to avoid legal issues with your economic development project in the future, seek FPIC from the community now.

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