1. Operationalizing Free, Prior and Informed Consent
Consultation and Unity Conference, March 15, 2017
Gillian Paul, OKT LLP

2. Introduction
On the threshold of some big changes on how Aboriginal people are engaged
Consultation is not working
Moving from an “Aboriginal Consultation” to an “Aboriginal Consent” Framework

3. Haida

4. Haida
The duty to consult can vary from a minimum “duty to discuss” to the requirement for full consent of the Aboriginal nation on serious issues

5. Haida’s Spectrum Analysis
The degree of consultation will depend on:
(1) how strong the Aboriginal right is, which is being claimed, and
(2) how much potential harm could be caused to that Aboriginal right.
Less
Consultation
More Consultation
Weak claim,
no serious impact
Strong claim,
serious impact

6. Strong Claims & Impacts = CONSENT
Less
Consultation
More Consultation
Weak claim,
no serious impact
Strong claim,
serious impact
Consent

7. Concerns re Aboriginal Consultation
Process without substantive justice
Capacity constraints

8. Aboriginal Consultation: … Favours Process Over Substance
The “Aboriginal consultation” framework has resulted in processes that seek to evidence consultation rather than substantively achieve it.

9. … Sets Up the “Blowing Off Steam” Conundrum
The legal remedy for failure to consult is (usually): “Go back and talk some more”

10. … Imposes Capacity Constraints
Imposes consultation processes without corresponding capacity-building commitments

11. The Canadian Legal Landscape on FPIC

12. Free, Prior, and Informed Consent
UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
Art. 19
“free, prior and informed consent” (FPIC)
states must have the objective of obtaining consent before:
The adoption of legislation or administrative policies that affect indigenous peoples (article 19)
The undertaking of projects that affect indigenous peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (article 32).

13. Canada‘s Position on FPIC
Opposed UNDRIP in 2007
Endorsed UNDRIP in 2010 with caveats
In 2016, Canada finally ceded its lonely position on the global stage as the only nation that still refused to adopt UNDRIP and announced its implementation

14. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

15. Consent or Justified Infringement is Required
Para 76: “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the govern-ment’s only recourse is to establish that the proposed incursion on the land is justified under s. 35.”

16. Consent Discussion
The Court explored the concept of “Aboriginal consent” in more detail than previous decisions (and confirms it is a requirement in some cases)

17. Consent Discussion
Focused on the Aboriginal perspective: The compelling and substantial objective of the government “must be considered from the Aboriginal perspective as well as from the perspective of the broader public” (at para 81).

18. Consent Discussion The SCC did not formally endorse “FPIC”
However, the SCC emphasized consent as the starting point:
SCC starts with “consent” discussion (need for consent or justified infringement before Crown approvals) (para. 76)
SCC goes on to emphasize the importance of consent repeatedly (paras 88, 90, 92, 97 and 124)
This emphasis on consent stands in contrast to the approach of earlier SCC decisions (notably Delgamuukw)

19. Veto: the Language of Fear
FEAR: False Evidence Appearing Real
The False Evidence:
That all development proposals
are reasonable
That all Aboriginal groups
are anti-development
That Aboriginal groups are or
will be unreasonable in making decisions
That other Canadians will suffer
a ‘loss’ if Aboriginal groups gain

20. What is FPIC? Free Prior Informed Consent
No coercion, intimidation, or manipulation
Must be able to say no
No divide and conquer tactics
Permission sought well in advance of the activity contemplated with respect for the timelines of the indigenous group
Sufficient time to allow for information to be gathered and shared to the decision making process of the group
Consent reached before the project begins
Information about all aspects of the project is provided
Time to understand, access, and analyze information
Preliminary scientific and other studies on impacts are done
Capacity provided
One of the options is that the Indigenous group may withhold consent
Need to consider the who, what, and how

21. How to Practically Operationalize FPIC
Freedom from force, intimidation, coercion or pressure by the proponent
Mutual agreement on a process for consultation
Robust and satisfactory engagement with Aboriginal group prior to approval
Sufficient and timely information exchange
Proper resourcing, both technical and financial. To allow the Aboriginal group to meaningfully participate
Shared objective of obtaining the reasonable consent of the Aboriginal group

22. SON and Bruce Nuclear: Achieving FPIC Guarantees
OPG Commitment: No Deep Geological
Repository under Lake Huron
unless SON consents

23. “The Special Rapporteur has consistently emphasized the importance of good faith dialogue and meaningful consultation in the aim of achieving consent as the primary objective of the principles of free, prior and informed consent. The purpose is to “reverse historical patterns of imposed decisions and conditions of life that have threatened the survival of indigenous peoples.” In this way, the “principles of consultation and consent” have the objective of “avoiding the imposition of the will of one party over the other,” and “striving for mutual understanding and consensual decision-making.””
Iaccobucci et al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples,” Torys LLP, (2016), at para 22

24. Olthuis Kleer Townshend, LLP
Thank You
Gillian Paul
Olthuis Kleer Townshend, LLP
Thank You
Olthuis Kleer Townshend LLP