Free, Prior, and Informed Consent

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.