Free, Prior And Informed Consent In Canada: Towards A New Relationship With Indigenous Peoples, Part I - Introduction

  1. We have been asked to prepare a discussion paper analyzing the application in Canada of the principles of free, prior and informed consent for Indigenous peoples in respect of government measures that may affect them, and how this may comport with the similar domestic duty to consult, and if appropriate, accommodate Aboriginal peoples' interests.1 This paper first reviews the principles of free, prior and informed consent under the 2007 United Nations Declaration on the Rights of Indigenous Peoples as well as Canada's evolving position on those principles and what weight they may carry. Second, we review Canadian law on the duty to consult and, if appropriate, accommodate Indigenous rights and interests. Third, from this review of the applicable domestic and international law, we suggest an approach to meeting the letter and spirit of these standards in practice. This approach is grounded in the need to facilitate reconciliation among Canada's governments, Indigenous peoples and the rest of Canadian society. We suggest:

    building a relationship with Indigenous peoples founded on mutual respect and trust, focused on furthering each other's long-term interests, and not simply concluding a transaction for short-term gain; approaching the relationship through a model of partnership;2 providing Indigenous peoples with a meaningful opportunity to participate in both procedural and substantive dimensions; and involving governments to help align parties incentives, and otherwise facilitate appropriate consultation processes. 2. The Declaration sets out a statement from the international community on the manner in which international human rights law should apply to Indigenous people. Among other things, the Declaration addresses circumstances in which states must consult Indigenous3 peoples when their rights or interests are potentially affected by a proposed measure, with the aim of obtaining their free, prior and informed consent, and circumstances in which states must refrain from action if that consent cannot be obtained. As part of Canada's constitutional protection of Aboriginal and treaty rights, Canadian courts have enunciated a duty to consult and, if appropriate, accommodate Aboriginal peoples when their rights, claimed or established, are potentially affected by a government action. Courts have adjudicated a significant volume of cases alleging deficiencies in consultation.

  2. These international and domestic legal principles share a common purpose: to protect Indigenous peoples' underlying rights, to remedy the significant historical disadvantage and disenfranchisement Indigenous peoples have faced, and to provide...

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