UNDRIP and FPIC: Is Canada Fakin? A Whole Lotta Legislation Goin On!

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On Valentines Day 2018, the Government of Canada said it is launching a national engagement process to develop – “in full partnership with First Nations, Inuit, and Métis Peoples” - a Recognition and Implementation of Rights Framework. 

 

Thirty-eight years after Pierre Elliott Trudeau saw Indigenous rights recognized and affirmed in section 35 of the Constitution Act, 1982, his son, Prime Minister Justin Trudeau, says his government is now “working with First Nation, Inuit and Métis peoples to create the federal laws and policies needed to fully and clearly” to put section 35 of the Constitution Act, 1982 into practice.

 

This national engagement strategy comes as Indigenous rights-holders are busy considering new draft legislation on environmental, fisheries, energy and navigable waters announced the week of February 5th, 2018. At last count, we numbered SEVEN new pieces of legislation with imacts on Indigenous rights and interests announced in February, 2018 alone! 

 

We’re optimistic, but there can be no "fakin" FPIC.  There’s a whole lotta legislation goin on, and we’ve got some questions...

 

5 Questions
  1. Will this national Indigenous legislation engagement for a Recognition and Implementation of Rights Framework deflect from the work Indigenous rights-holders are already engaged in to critically review new draft legislation on environmental, fisheries, energy and navigable waters?
  2. Will this be another time, resources and money drain on Indigenous rights-holders who just went through the 2016/17 engagement process (that Matt McPherson of OKT Law called an “underfunded and time-crunched process”), to provide in-depth input on environmental, fisheries, energy and navigable waters legislation, while being denied the opportunity to sit down with Canada to co-develop that legislation?
  3. Will Canada continue to hold “engagement” processes, but write the actual Indigenous rights legislation in secrecy and without true collaboration with Indigenous rights-holders, as happened with environmental, fisheries, energy and navigable waters legislation?
  4. Do Canada’s national engagement processes meet the test of Free, Prior, and Informed Consent (FPIC) under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)?
  5. Can Canada do the UNDRIP and FPIC math to put these processes on the right track and support Indigenous prosperity, stewardship and jurisdiiction?

 

Is Canada Fakin? A Whole Lotta Legislation Goin On

Canada says its Indigenous Rights Framework will support Indigenous peoples’ treaty rights and their inherent rights, as recognized in section 35 of the Constitution Act, 1982 while also meeting the objectives outlined in the United Nations Declaration on the Rights of Indigenous Peoples, which includes Free, Prior and Informed Consent (FPIC) requirements. Canada also says its Indigenous Rights Framework will be introduced in 2018 and will form the basis for all relations between Indigenous Peoples and the Government of Canada moving forward.

 

Is Canada faking FPIC? Let’s start by seeing if the SEVEN new pieces of new legislation currently in process meet the test of Free, Prior and Informed Consent based on the final study on Indigenous peoples and the right to participate in decision-making - Report of the Expert Mechanism on the Rights of Indigenous Peoples, May, 2011:

  • Free: “The element of ‘free’ implies no coercion, intimidation or manipulation”
  • Prior: “‘Prior’ implies that consent is obtained in advance of the activity associated with the decision being made, and includes the time necessary to allow Indigenous Peoples to undertake their own decision-making processes”
  • Informed: “‘Informed’ implies that Indigenous Peoples have been provided all information relating to the activity and that that information is objective, accurate and presented in a manner and form understandable to Indigenous Peoples”
  • Consent: ”‘Consent’ implies that Indigenous Peoples have agreed to the activity that is the subject of the relevant decision, which may also be subject to conditions.”

Unfortunately, given Canada's vague announcement and equally vague "public engagement guide" that comes with it, it’s too early to tell what exactly Canada is putting on the table for Indigenous rights legislation, how it will meaningfully apply FPIC and engage Indigenous rights-holders, and whether this will indeed be an underfunded and time-crunched process.  

 

And, given the fact that Canada’s new draft legislation on environmental, fisheries, energy and navigable waters legislation was announced the week of February 5th, 2018 with an initial 10 week review and comment deadline of April 15th, 2018, and no funding program yet in place for community discussion or technical/legal assistance and there is not sufficient time for Indigenous communities to undertake their own decision-making processes… well, it’s not hard to start do the UNDRIP and FPIC math.

 

FPIC: "We are going to try really hard"

And, with respect to Free, Prior and Informed Consent, under the UN Declaration on the Rights of Indigenous Peoples, Canada must ensure that Indigenous communities are consulted before any development affecting their lands and resources takes place. More broadly speaking, any decisions directly affecting Indigenous Peoples and their self-determination require their consultation and consent. Indigenous rights legislation WILL impact Indigenous prosperity, stewardship and jurisdiction. If this legislation does not require FPIC, what does?

 

When Minister of the Environment and Climate Change, Catherine McKenna announced Ottawa's proposed omnibus Bill C-69 to replace the Canadian Environmental Assessment Act 2012 with the Impact Assessment Act, replace the National Energy Board Act with the Canada Energy Regulatory Act, amend sections of the Fisheries Act and replace the Navigation Protection Act with the Canadian Navigable Waters Act, she said of FPIC:

 

"That is what you strive for. It is not always going to be possible. You will not always be able to get every Indigenous community coming together, but you have to try really hard, that is the expectation under Canadian law. We are going to try really hard."

 

Canada says its “goal is to chart a new way forward for the Government of Canada to work with First Nations, Inuit and Métis peoples, and to end decades of mistrust, poverty, broken promises and injustices.” We’re optimistic, but there can be no "fakin" FPIC - Canada must firm up the elements of Free, Prior and Informed Consent as part of this process, and soon.  

 

Larry Sault provides this advice: 

 

"We are Stewardship Warriors. Our battles are not always easy. When we have to, we will arm ourselves with lawyers and take the fight to the courts. And we will win."

 

The Engagement Process – Not Much of Anything Goin On... So Far

Canada plans to formalize the recognition and implementation of Indigenous rights through new legislation and policies, including:

  • New legislation to formalize the standard of recognition of Indigenous rights as the basis for all government relations with Indigenous Peoples
  • New legislation establishing the two new departments that will replace Indigenous and Northern Affairs Canada with a mandate that better serves the distinct needs of First Nations, Inuit and Métis peoples
  • A new policy that reflects the unique needs of First Nations, Inuit and Métis peoples to replace the current Comprehensive Land Claims Policy and the Inherent Right to Self-Government Policy
  • Reforming government policies and practices to support the implementation of treaties and self-government agreements
  • Mechanisms to support the rebuilding of Indigenous nations and governments, and advance Indigenous self-determination and the inherent right of self-government
  • A new dispute resolution approaches to address rights related issues, including overlapping territories and treaty implementation

And Canada is seeking participation from Indigenous rights-holders in the Recognition and Implementation of Rights Framework, but has so far made no public announcements of capacity or participant funding for this engagement. 

 

There's a whole lotta legislation goin on, but not a lot of information.  You can look for a copy of ENGAGEMENT TOWARDS A RECOGNITION AND IMPLEMENTATION OF RIGHTS FRAMEWORK Public Engagement Guide which includes a series of fill in the blank questions - but copies are very are hard to find on the web, which is why we've included a PDF download here so you don't have to spend hours searching the web for it.

 

 

You can also email droitsautochtones-indigenousrights@canada.ca and receive a not very helpful robo-email reply: "On behalf of the Government of Canada, we would like to thank you for providing us with your comments and suggestions regarding the development of a federal Recognition and Implementation of Rights Framework. Your feedback is important to us and will help us as we work together towards building a stronger Canada. Please visit the official webpage at www.canada.ca/indigenous-rights for updates on the national engagement process and to discover other ways to contribute to these important discussions."

 

You can also hope that you are lucky enough to receive an invitation only request to participate in an "in-person engagement session", or you can follow the Minister's engagement and interact on Twitter - @Min_CIRNA; @Min_RCAAN.

 

Better yet, sign up for our Eagle Eye newsletter and we'll send you occasional updates!

 

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About this blog title: We pay homage to "Whole Lotta Shakin' Goin' On", a song written by Dave "Curlee" Williams and usually credited to him and James Faye "Roy" Hall. The best-known version is the 1957 rock and roll/rockabilly version by Jerry Lee Lewis. Lewis recorded it at his second recording session for Sun Records in February 1957. Released as Sun 267, the record reached No. 3 on the Billboard pop chart and No. 1 on the Billboard R&B chart.  Scholar Charles L. Ponce de Leon said it was "perhaps the quintessential rockabilly anthem".

 

About Us - Shared Value Solutions

We are an Ontario B Corp, and we assist Indigenous communities with support throughout regulatory processes surrounding major development projects like mines, hydroelectric facilities, transmission lines, highway expansions, oil and gas pipelines, natural resource transport applications and nuclear power. 

 

We have deep context and experience behind the recommendations we provide, having worked for our clients on almost every major project in Canada over the last 10 years. For us, it’s all about building long-term relationships with our clients. We want to get to know you and what you want to do so we can help you move your plans forward. 

 

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