Why implementing Free, Prior and Informed Consent in Canada is essential – and why the government is refusing to do so, in spite of the UN Declaration on the Rights of Indigenous Peoples.

Why does Canada hate Indigenous rights?

Or, more properly, why has the government campaigned so hard to subdue the right to Free, Prior and Informed Consent (FPIC), even when it’s now enshrined in a UN Declaration on the Rights of Indigenous Peoples (UNDRIP)?

The specific right to FPIC, as it is called by those who regularly deal with it, tells us a lot about where we are as an international community and a country.

Starting in the 1980s, groups of Indigenous Peoples from around the world made petitions to the United Nations that their rights were regularly being violated – the gamut of issues, from genocidal armed incursions in Guatemala, to being forcefully removed from one’s family to learn a colonial language and culture as in Canada, to being kicked off of one’s traditional lands to make way for more profitable enterprises.

After 25 years of Indigenous leaders attending UN sessions around the world, they managed to convince countries to finalize the Declaration and send it to the General Assembly for adoption.

In 2007, the Declaration was passed, with only four countries voting against it – Canada and its colonial cousins, the US, Australia and New Zealand.

At the time, Canada stated, incredibly, that they thought applying the Declaration would conflict with the Canadian Charter of Rights and Freedoms, without explaining how. Prime Minister Harper also mentioned repeatedly that he believed the provisions around FPIC would undermine Canada’s sovereignty and ability to extract natural resources.

Why do they believe that? And why might it be true?

Any human rights frameworks by necessity has to limit states’ rights and sovereignty, while imposing some responsibilities. That is the whole idea.

Any human rights frameworks by necessity has to limit states’ rights and sovereignty, while imposing some responsibilities. That is the whole idea. The Universal Declaration on Human Rights and the UN Convention on Genocide were created in response to the horrors of Nazi Germany. The entire purpose of those articles was to not allow governments the sovereignty to carry out actions that we agreed as a society we didn’t want to see happen any more.

The UNDRIP is no different. Seeking to prevent human rights abuses that have occurred countless times, countries of the world agreed that states should not impose any projects, like dams or mining, or carry out legislation that would have negative impacts on Indigenous Peoples and their cultures, without having the Free, Prior and Informed Consent of those peoples.

In this context, Free means an uncoerced agreement. Prior means that negotiations have to occur before any action. Informed means that Indigenous groups must have a full understanding of the implications of any agreement. Most controversially, consent means these communities have the right to decide whether to allow these projects or not.

It is perhaps easier for many Canadians to accept that these provisions may be necessary when a Canadian oil company goes into the remote depths of the Amazon, without seeing its equal necessity in the remote depths of Northern Alberta. Unfortunately, it’s just as necessary here, for the same reasons.

Before 1951, Native people in Canada weren’t allowed to hire lawyers. Really. That provision was in place to prevent Native groups from seeking redress over lands taken illegally. That combined with other Indian Act provisions, had guaranteed that no Native community was able to actually negotiate their own land surrenders. That was done for them by Indian Affairs.

This was of critical importance to Canada’s natural resource industries. Up until very recently, industry had been able to assume control of supposedly Native-held land without the people living on those lands being able to do or say very much. Mining, forestry, hydroelectric projects, roads, and oil and gas projects were all leased out by the government, on behalf of the Native communities, sometimes on 99-year leases, and often to devastating effects.

These are projects that have often ravaged and poisoned Native communities. The Ontario First Nations community of Grassy Narrows had to be moved because of timber-related water contamination. Years later, they are still trying to prevent clear-cutting in their territory that is destroying the ecosystems they depend on for food and ceremonies.

In Alberta, communities were forced to sign agreements with oil companies starting in the 1960s and still in place. Now, they’re dealing with elevated cancer rates, respiratory diseases, and other impacts of industrial pollution that they never had a say over. Even today, communities don’t have any real power to prevent or change these kinds of projects, besides petitioning their (often Conservative) political representatives.

Without Native people having a say, without even an attempt at consultation, there will be no reconciliation.

That’s why the ideas enshrined in the FPIC provisions are still crucial. And that’s why they’re still being fought by the government.

In May, the NDP introduced a bill to bring Canada’s laws into alignment with the UNDRIP. The Conservative government blasted the idea and shot down the bill, noting they were elected to represent the “public interest of … all Canadians”.

Instead, the current actions and policies of the government, and the corporate sector they enable, lead down a path of increased agitation and confrontation. We already saw the implications in the protests against natural gas fracking in Elsipogtog, New Brunswick, where a militarized police team was sent in to disband a blockade by the local First Nations.

Without Native people having a say, without even an attempt at consultation, there will be no reconciliation. That’s why the recent report of the Truth and Reconciliation Commission urged Canada to adopt the Declaration as a framework to move forward the relationship between Canada, Canadians and Indigenous Peoples here.

Moving forward, we need a government that recognizes the rights of Indigenous communities as being in the public interest of all Canadians. But to ensure that happens, all Canadians need to learn just how necessary these rights are.

Ben Powless

Ben Powless is a First Nations citizen with a degree in Human Rights, Native Studies and Environmental Studies from Carleton University. He works on climate change, Indigenous rights and tar sands issues with the Indigeneous Environmental Network, Defenders of the Land, Idle No More, Canadian Youth Climate Coalition and Ecology Ottawa.