Free, Prior, and Informed Consent
Thursday, November 7th, the Tsilhqot'in people had their day in court – the
Supreme Court of Canada. The question to
be decided was – who really has title to Canada’s vast wilderness areas – the
crown? Or the indigenous people who live
there? Twenty years ago the Tsilhquot’in
Nation blockaded and then went to court to save some of its intact, traditional
lands from industrial logging. The claim
area comprises some 438,000 hectares of remote and beautiful territory in the
Chilkotin region of British Columbia, home of the Xeni Gwet’in, one of six
Tsilhqot’in communities.
The BC Supreme Court decided, in 2007, that they hold the
Aboriginal rights to hunt, trap, and trade, including the right to catch and
use wild horses throughout the entire territory. The court went further. It found the Tsilhqot’in Nation had proven
Aboriginal title to approximately 40% of the Claim Area because they controlled
that territory and used it year after year to sustain their communities and
their culture since the Crown had asserted sovereignty in 1846. The Supreme Court of Canada has also
recognized the idea of Aboriginal title in Delgamuukw v. BC (1997). The 2007 decision was overturned in a higher
court that decided that the small spots (i.e.
reserves) where aboriginals had title met the requirements of law and
was enough. The Supreme Court will
either confirm the original decision or the higher court decision.
A busload of Tsilhqot’in people including eleven elders who had
participated in the first court case twenty years ago travelled across the
country to attend. On the way they shared their stories and songs with First
Nations across the country who will all be affected by the outcome of this
case. I give my gratitude to the lawyers
and the people who attended a closing workshop to explain the case before they
all went home. They told us their
feeling that the singing and the prayers all across the country had
strengthened them for the court experience and they were proud to have done
well. Although we won’t hear the results
for likely six months, the people were pleased that the judges had gone after
the government lawyers with a series of straightforward, simple questions, and
that the government case had apparently, in their words, “unraveled”. The Tsilqot’in are very optimistic they will
win. But even if they don’t, they have
stood up and told their stories of who they are and of their relationship to
the land. Even if they lose, they know
who they are. They are there, occupying
and using the land in the traditional ways, and cannot be easily dismissed.
I learned a few interesting things at the workshop:
·
There are three layers of law that intersect with each other for
the court to consider. 1) Tsilhqot’in
law coming out of their traditional culture 2) Canada’s law and 3)
International law. When indigenous
peoples negotiated with colonial governments they did it from the perspective
of their own laws and ways of looking at the world. Canada negotiated from a Western European
cultural and legal perspective. Finally,
there is a growing body of international law including Human Rights law and the
UN Declaration on the Rights of Indigenous peoples through which we are
developing an international understanding of how countries should relate to
their First peoples.
·
International law in the 1700’s was the Doctrine of
Discovery. In this Papal document it was
declared that aboriginal people were not humans with souls. They were savages,
suitable to be slaves, and the land could just be expropriated from them
without payment. This doctrine was the
foundational document for the colonial era and basically gave Kings permission
to take what they wanted – in Africa, and in South, Central and North
America. And they did. This is the foundation on which the
relationship between our First Nations and other Canadians has been built. One has to ask, is an apology enough? If you don’t do something about such a
disrespectful, hurtful, and totally false set of premises, how can an apology
mean anything? Canadians are obliged
now, to acknowledge this false basis for a relationship of respect, and to put
in place a legal framework that will support a new and healthier relationship
with our indigenous brothers and sisters.
·
In the early historical documents we said that Aboriginal people
don’t have a religion. And yet, their
spiritual traditions are so powerful that they can stand up, in their
traditional garb and with their drums, songs, and ceremonies, showing Canadians
what it is to have a relationship with the earth that sustains you. They do not glorify God – rather they humble
themselves before the creator, giver of all life. They are reminded every day that they must
see how to live in harmony with the earth, as brothers and sisters to the
wildlife. We live interdependently with
all life on this planet as well as the water, the earth, the air, and the
fire. Life is sacred. Every word you speak and every action you
take matters. So they find the will, the
money, and the energy to come to court and tell Canadians the truth. Aboriginal people must have a place and a
role in Canadian Society. Their
contribution to our well-being will be to help us think about our relationship
with the earth, and how we do development.
·
In the colonial approach, economic matters always trump
Indigenous rights. Canadians are worried
as to what will happen if aboriginal title is confirmed. Who will win and who will lose? Will aboriginal people allow any
development? Will aboriginal people just
take the money and throw it away and we’ll still have to take care of
them? Will we just be transferring the
wealth and power from one greedy batch of people to another greedy batch of
people? I don’t believe any of those tired stereotypes! It is my hope that we will all learn what
aboriginal people know about using the land without destroying its capacity to
sustain us? I dream of a true
partnership.
·
I learned that there was a fear or maybe even an expectation
that the workshop participants shouldn’t hold their hopes too high. I began to realize that I was meeting in a
room of Chiefs and lawyers who were discussing next steps and strategy. The experience has been that even when a
court case is won, nothing changes.
These laws are not enforced.
Industrialized companies continue to come on to new land and start
exploring, with government permission, without having discussed anything with
the First Nations who live there. The human rights of First Nations both as
individuals and as peoples for justice are ignored. The Doctrine of Discovery continues to reign
supreme.
·
What is the alternative?
Free, prior and informed consent.
The following is taken from a handout at the workshop:
The Supreme Court
has called the protection of Aboriginal and Treaty rights an “underlying constitutional principle”
and a “constitutional value.” The rights in s.35 of the Constitution Act,
1982, are described as “a national
commitment.” Governments cannot simply impose their will on Indigenous peoples. The Court has called for reconciliation of
pre-existing Aboriginal sovereignty and assumed Crown sovereignty. The perspectives of the common law and
Aboriginal peoples must be reconciled, with
equal weight placed on each.
The Supreme Court
has defined a mandatory constitutional obligation that is described as “the duty to consult.” But this duty requires more than just
informing indigenous peoples about a project.
Canadian courts have consistently said that where there are impacts on
Indigenous peoples’ rights, appropriate accommodation
is also required. In the Delgamuukw and
Haida Nation decisions, the Court added that, on “very serious cases,” the full consent of the Aboriginal nation
would be required.
Free, prior, and
informed consent.
As I read further in the handout, I learn that this is a
commitment to a process between equals, not a mandate to give either the Crown
or Indigenous peoples a legal power to veto or to unilaterally decide. People must be fully and adequately informed. They have a right to time to investigate the
circumstances and determine what impact, if any, the project will have. They have a right to accommodation when there
are adverse impacts. And if they deem
that it is a very serious situation, and that the government or the industry
has not fully understood the impact of their intentions, they have the right to
refuse consent. The rights and interests
of each side must be weighed equally. In
this legal context, if both parties come to the table in good will, most
situations should find resolution through negotiation, respect, and
accommodation. But if the project
involves permanent destruction of the land, the First Nations can say
no—accommodation has not been achieved.
I would like to see us try to live with First Nations in this
kind of spirit of mutual respect. Surely
it is in the interest of all Canadians and for the planet as a whole, for us to
do so.
