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5/25/2016 JEFFREY SIMPSON

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No one knows what Canada’s ac cep tance of the UN’s in dige nous dec lara tion will mean for us.

The fed eral Lib eral gov ern ment on Mon day ac cepted the United Na tions Dec lara tion of the Rights of In dige nous Peo ples,adopted in 2007 by the Gen eral Assem bly af ter two decades of tor tu ous ne gotiations but never fully ac cepted by the previous Con -ser vative gov ern ment. What Canada’s ac cep tance of this dec lara tion will mean no one knows.

If the dec lara tion re mains a flow ery state ment of lofty prin ciples and goals with out any legal stand ing in Canada, it won’tmean much. That’s the way it is with other UN “dec lara tions,” as op posed to UN treaties.

If, how ever, Cana dian courts ac cord the dec lara tion do mes tic legal sta tus, then the im pact could be huge. If Par liament everat tempted to leg islate what the dec lara tion says, it would face a night mar ishly dif ficult task to turn loose and im pre cise goals intode tailed leg islation.

Canada is al ready do ing in whole or in part most of what is in the dec lara tion. There are two clauses, at least, that should givepause.

The first is Ar ticle 26 (1), which reads, “In dige nous peo ples have the right to the lands, ter ri to ries and re sources which they have tra di tion ally owned, oc cupied or oth er wise used or ac quired.” A later sub sec tion re quires states to give “legal recog ni tion andpro tec tion to these lands, ter ri to ries and re sources.”

Quite apart from sort ing out just which lands par ticular abo rig inal groups might claim – don’t for get our Supreme Court hasust mud died these wa ters con sid er ably in its re cent de cision about Métis hav ing land claims as well as First Na tions – does a sov -

er eign coun try such as Canada re ally want to en shrine Ar ticle 26 into its own law?Canada spent decades wrestling with Quebec se ces sion – not just the pol itics of it, but the legal case for and against it. The

fed eral Clar ity Act – writ ten by Stéphane Dion, who is now Min ister of Global Af fairs – put very strin gent con di tions around pos -si ble se ces sion.

If the “right” out lined in Ar ticle 26 is cou pled with other clauses in the dec lara tion about “self de ter mi na tion” (Ar ticle 3), then

Canada risks en shrin ing in do mes tic law for abo rig inal peo ple what it fought stren uously against in the case of Quebec. No Cana -

JEFFREY SIMPSON

The Globe and Mail (Ottawa/Quebec Edition) · 11 May 2016 · · JEF FREY SIMPSON jsimpson@globe and mail.com

8/16/2019 op ed piece of UNDRIP

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5/25/2016 JEFFREY SIMPSON

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dian gov ern ment could or would do that, although there are al ready abo rig inal groups that do not ac cept the sovereignty of Canada.

An other clause de clares abo rig inal peo ple must give “free, prior and in formed con sent” (FPIC) to any project on their lands,as sum ing that the def ini tion of the lands and the ti tle to them is clear. Even if ti tle is not clear, na tives have claimed that FPICshould ap ply in prac tice, a stronger as ser tion of abo rig inal rights than the Supreme Court’s in junc tion for “con sul ta tion and ac -

com mo da tion.” What does “free, prior and in formed con sent” mean? Cana dian courts have been clear that abo rig inal groups do not have a

veto, but that gov ern ments have a heavy re spon si bil ity to con sult and, where pos si ble, ac com mo date abo rig inal con cerns.Some abo rig inal lead ers and univer sity ac tivists in sist that a veto ex ists in law. They point to the UN dec lara tion to but tress

their case, which is one of the rea sons the previous gov ern ment was so ner vous about en dors ing it. Oth ers have ar gued that FPICim poses an even heav ier bur den on gov ern ments and com pa nies to seek abo rig inal agree ment but stops short of a veto.

In a very help ful pa per for the Macdon ald-Lau rier In sti tute, abo rig inal leader Blaine Favel, chan cellor of the Univer sity of Saskatchewan, and pro fessor Ken Coates from the same univer sity try dis pas sion ately to ex plain what “free, prior and in formedcon sent” might mean. Theirs is not an easy task.

It’s not hard to see why re source com pa nies might be dis mayed at “free, prior and in formed con sent.” If FPIC morphs into a veto, with “con sent” mean ing ap proval, then for get about pipe lines and many other projects where a bunch of dif fer ent abo rig inalgroups are af fected. Get ting unan imous con sent would be next to im pos si ble.

A project such as the En ergy East pipe line wouldn’t have a chance. A veto would mean that the will of the fed eral gov ern ment, which ought to speak for all Cana dians, would have al most no chance to pre vail, no mat ter what the reg ulatory pro cesses. If FPICmeans some thing less, it could lead to more agree ments, en cour aging com pa nies and gov ern ments to ne gotiate deals with will ingabo rig inal groups, of which there are many.

What all par ties to re source devel op ment need is more cer tainty, be cause for now no one can say for sure in many cases whoowns land, whether abo rig inal peo ple (First Na tions and Métis) have ti tle, what is the pre cise duty to ac com mo date and con sult.“Free and in formed con sent” could make this con fusion much worse or, per haps, bring a bit more clar ity.