For all the discussion and controversy surrounding the nature and scope of consultation with Aboriginal rights-holders over natural resource projects, far less attention is paid to the fact that a robust, distinct regime of international human rights law (IHRL) — which speaks to many of the same questions — exists. This law emerges primarily from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the case law of the Inter-American Court of Human Rights (IACtHR), which has developed a framework for considering the consultation (and consent) rights of Indigenous peoples — as in Saramaka v. Suriname and other cases — that is increasingly cited by national courts.
Should these international law-based frameworks have an increased role in the discussion? Skeptics can be forgiven. Among their arguments are some valid points:
- the international law in question is non-binding;
- substantial Canadian law exists to address the same questions, so our courts need not look afar for law as a “gap-filler”; and
- while courts should consider more than Canadian provincial and federal law, their primary focus should be on the laws of Aboriginal peoples in Canada, not legal frameworks developed by diplomats in Geneva or judges in Costa Rica.
While these skepticisms should be taken into account, they are not the end of the discussion. First, as described below, the noted international human rights law sources have a way of becoming more mandatory than enforceability critics suggest, at least in some circumstances. Second, in a comparative law vein, the substance of the noted law aligns and diverges with Canadian law in interesting ways that offer significant opportunities for insight, especially on the meaning and importance of “prior” consultation and on the importance of including Indigenous peoples’ spiritual relationship with their territories in the legal analysis. The law also offers a different way of looking at the consultation and consent divide that animates a difficult debate in the Canadian context. Finally, combining the comparative law approach with the mandate to include Indigenous law in the analysis points to an even greater opportunity to develop a hemispheric comparative Indigenous law. This is an ambitious project that reflects the essential role that international solidarity has played in strengthening Indigenous rights in the hemisphere and across the globe in the last several decades.
The Influence of IHRL
It is true that the key IHRL sources noted above are not binding on Canada as a matter of international law. The precatory nature of UNDRIP was central to its near-unanimous adoption in 2006, and while Canada joined the Organization of American States in 1990, and in so doing undertook to respect the rights set out in the 1948 American Declaration of the Rights and Duties of Man (also considered a legally non-binding instrument), it has neither signed nor ratified the legally binding American Convention on Human Rights nor acceded to the “contentious jurisdiction” of the IACtHR.
Yet the lived experience of international law is complicated and not adequately represented by neat divisions between binding and non-binding sources. It is worth recalling that many realist scholars levy the “non-binding” charge at international law as a whole; “a tenuous net of breakable obligations” is one famous description. But the “reality” of international law is best described by models of influence such as the “transnational legal process” model advanced by Yale University scholar Harold Koh, which describes how international law, binding or not, influences and indeed “binds” state conduct through a process of diverse actors “provoking interactions” with institutions and promoting the “stickiness” of the underlying norms. International human rights law may also become part of customary international law (CIL), which evolves over time from consensus practice of states and can result in legally binding obligations.
International law is complicated and not adequately represented by neat divisions between binding and non-binding sources.
Both UNDRIP and Canada’s relationship to IACtHR jurisprudence illustrate this complexity. Indeed, UNDRIP is increasingly considered as a marquee example of the process of CIL. This is because CIL has two elements: uniformity of state practice (what states actually say and do) and “opinion juris,” a more subtle requirement that considers whether state conduct consistent with the law is due to self-interest or arises from a sense of obligation. UNDRIP was adopted by the UN General Assembly in 2007 with 144 “yes” votes and only four “no” votes — but the “no” votes were from key states in the global Indigenous rights dialogue: Australia, Canada, New Zealand and the United States. Since then, however, each of the four dissenters has reversed its position. Canada declared its support for UNDRIP in 2006 and is on its way to full implementation. The sense of obligation in the circumstances — that the dissenters were compelled to reverse course by the normative force of the law — is strong. For this and many other reasons, it can be said that while UNDRIP may not yet be a part of binding CIL, progress is certainly being made.
Canada participates in hearings and litigates cases on the merits and on jurisdiction before the Inter-American Commission, which considers human rights claims under the American Declaration (non-binding but applicable to Canada). In these cases, which include Indigenous rights cases, the commission will also consider the substance of the American Convention (binding, but not applicable to Canada), and the related jurisprudence of the IACtHR, as “an authoritative expression of the fundamental principles set forth in the American Declaration.” The IACtHR’s Indigenous rights jurisprudence in particular, like the Saramaka framework, has become powerfully influential in the hemisphere, guiding the decision making of several national high courts, including those of Colombia, Peru, Argentina and Belize. As such, it is becoming lex specialis — invoking a heightened persuasive influence because of its specificity — on the issues involved, and to the specific community of states and peoples represented by the American Declaration and the Organization of American States.
UNDRIP and IACtHR jurisprudence have other ways of “showing up” and providing influence in the Canadian context. A key example arises from the growing IHRL obligations being accepted by third parties such as corporations and international institutions. Many multinational corporations have made express commitments to “respect” IHRL under the UN Guiding Principles on Business and Human Rights, a soft law instrument that is skyrocketing in terms of expressed support and influence in recent years. To date, these companies have mostly been consumer-facing retail brands, but it is likely that natural resources companies, which increasingly recognize the importance of maintaining positive, direct and long-term relationships with Indigenous and other impacted communities, will soon follow suit. The big international conservation and environmental protection non-governmental organizations, which also have “operations” around the globe that present profound potential impacts to Indigenous peoples, are also trying to figure out how to comply with IHRL obligations to Indigenous peoples independent of whatever the state they are operating in may be doing.
The Potential Contributions of IHRL
In substance, IHRL offers insight and perspective both in its consistency with and its contrast to Canadian law. For example, the IACtHR has developed a nuanced and counterbalanced framework for considering Indigenous peoples’ rights to their traditionally occupied territories. It rests on the court’s baseline factors for assessing property rights impacts, namely, that government actions must be authorized by previously established law as necessary, proportional and serving a legitimate objective. For impacts to Indigenous territory, the court requires a series of additional safeguards, namely, an express requirement for environmental and social impact assessments, an express requirement of benefit sharing, and a broadly defined requirement of “effective participation” by Indigenous people in the decision-making and implementation process. The IACtHR has found that any meaningful interpretation of effective participation “must be understood to additionally require the free, prior and informed consent” in cases of “major development or investment plans” that threaten to have “a profound impact” on Indigenous lands or cultures.
The framework thus aligns with and expands on the Canadian approach in useful ways. First, characterizing the Indigenous role as one of “participation” rather than “consultation” helps emphasize or “build in” presumption of Indigenous involvement from the very beginning of the process and the substantive incorporation of Indigenous views. The framework also squarely faces the contentious issue of consultation versus consent — an issue that lurks around the consultation discussion in Canada, with critics prone to attack consultation as “effectively conferring a veto power” on Indigenous peoples. Although the IACtHR framework does confer a refusal-of-consent right, it does so in a balanced fashion, limiting it to situations of “profound impact” — which commentators have interpreted to mean the presence of dire, existential circumstances. Canadian law on consultation is careful not to provide an Indigenous “veto,” at least not for not-yet-established claims based on traditional use or occupation. Yet it is unclear whether this jurisprudential reality would be considered legitimate by the public in the face of a threatened “profound,” even existential, impact of the sort the IACtHR refers to.
The right to refuse consent and block government plans is controversial on all sides, and the IACtHR framework cannot pretend to resolve it entirely. But it does seem to narrow the gap between jurisprudential reality and political reality. The framework’s emphasis on genuine and multidimensional consultation has also proven helpful in avoiding the issue entirely. In most cases, such as the IACtHR’s landmark Sarayaku case, courts are able to provide relief by pointing to faults in the consultation process and thereby avoiding (at least temporarily) the issue of refusal of consent.
The IACtHR’s Saramaka framework has grown in influence. It has been relied on by the high courts of Argentina, Belize, Colombia, Ecuador and Peru, and has informed the decision making of the high courts of Bolivia, Brazil, Chile, Guatemala and Mexico. Even though it makes no claim to replace the Canadian approach grounded in section 35 of the Constitution Act, it is an increasingly important reference point for international best practice that stands to assist the development of Canadian law. The more Canadian jurisprudence grows in explicit harmony with international standards, the more it addresses a range of other criticisms, such as claims that Canada’s consultation jurisprudence is politicized, generates instability and uncertainty, and “is, ultimately, whatever the courts say it is.”
IHRL supports existing elements of Canadian consultation law. For example, the consultation process should begin early enough that the Indigenous perspective can shape the process and the project design as opposed to being limited to superficial suggestions or a “take-it-or-leave-it” vote at the end of the process. This is essentially the “prior” element of the IHRL standard of “free, prior, and informed consent” in UNDRIP, IACtHR jurisprudence and other derivative international sources. As the African Commission on Human and Peoples’ Rights stated in the Endorois case (extensively citing Saramaka), late-stage consultation denies the impacted people the “opportunity to shape” the project at a foundational level and to define for themselves “their role in the process.” It is also disrespectful, leaving an impression “of the impending project as a fait accompli.” The perception that the outcome is predetermined lies at the heart of most unsatisfactory consultation processes.
IHRL authorities can also contribute to finding a place for the ancestral and spiritual concerns of Indigenous peoples within the jurisprudence. Article 25 of UNDRIP speaks to the importance of fully protecting the foundations of Indigenous spirituality in land, providing “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands…and to uphold their responsibilities to future generations in this regard.” The IACtHR has embraced a “concept of ‘indigenous territory’…[that] refers not only to material aspects, linked to physical spaces that belonged to their ancestors, and to resources in those areas, but also to non-material — political, symbolic and cultural — components.” Arguably, the IACtHR’s jurisprudence goes further than any non-Indigenous court system in seeking to find a concrete place for the spiritual dimensions of Indigenous claims; Judge Cançado Trindade’s renowned discussion of spiritual damages in the Moiwana case is a strong example.
In addition to IHRL’s influence on Canada’s national legal system, it will be fascinating to see how IHRL may come to influence the Indigenous law of First Nations in Canada. The examination of Indigenous law in IHRL thus far is thin, exoticizing and conflict-oriented — typically looking at whether Indigenous practices or due process concepts “measure up” to IHRL standards. IHRL scholars may be able to look at the far more integrative work being done by those developing harmonies between Indigenous law and Canadian law.
About the artist: Donna Langhorne is a member of Fishing Lake First Nations and a lifelong resident of northern Saskatchewan. She has been painting professionally since 2010. She is a versatile and prolific artist, comfortable in many different forms and genres. In particular, she has become widely recognized for her paintings in the woodlands style on subjects addressing contemporary issues facing Indigenous peoples. Her Seven Visions series, completed in 2017, has been on public display nationally in 2019 through the Artists Against Racism network. This series addresses questions of truth and reconciliation drawn from the Canadian experience with reference to and in the context of the Seven Sacred Teachings. The series includes the painting For Our Cultural Sovereignty, reproduction rights for which have been licensed to the Centre for International Governance Innovation for its series Environmental Challenges on Indigenous Lands. Donna has received grants from the Canada Council for the Arts, the Saskatchewan Arts Board and the Saskatchewan Foundation for the Arts. Her recently completed project, Common Truths, will be available to be toured over the next three years through the Organization of Saskatchewan Arts Councils.