Consent Part II

The objective of this post is not to demonstrate that free, prior and informed consent is a fixed standard under international law. As I recall, I am attempting to demonstrate that there is a shred of a basis for arguing that consent is a requirement under either international or domestic law.

I believe I was also bothered by a statement that the UN Declaration on the Rights of Indigenous Peoples is merely aspirational, rather than customary law. The importance of this distinction will be reserved for a future post (or two) because demonstrating a norm is customary international law is a bit of an exercise and because whether an international obligation is a rule of customary international law or an international treaty obligation has implications for how such an obligation should be led and argued in a domestic court (in Canada).

This post will start with the concept of consent (or free, prior and informed consent, if you please) under ILO Convention 169 and then under the UN Declaration. I find the concept of consent to be quite weak under C169 and quite strong under the Declaration. Does this mean the Declaration is merely aspirational?

I suggest it isn’t and draw on an extremely limited survey of international developments, almost exclusively in the Inter-American system, to support a broader argument that the international law of consent developed dramatically between the conclusion of negotiations on ILO 169 and the conclusion of negotiations on the Declaration. These developments explain why the Declaration is not aspirational and why it reflects a contemporary understanding of the requirement to secure consent of indigenous pepoles.

ILO 169 – provides protections for a range of indigenous rights

The standard of consent is mentioned three times in this treaty. Article 6 deals with the government requirement, under ILO 169, to consult with indigenous peoples. It requires government recognition of indigenous representative institutions, meaningful involvement in all stages of decision-making and resources for the development of indigenous representative institutions and indigenous initiatives. Article 6(2) requires that the objective of all consultations is the achievement of “consent to the proposed measures.”

The text of Article 6(2) suggests to me that if a government is proposing a course of action that it already knows to be unacceptable to an indigenous nation, or becomes aware that the proposal is obviously unacceptable to a First Nation, then the proposal must be rejected. Else, the government falls out of compliance with Convention 169. There is; however, an alternative interpretation of Article 6(2), one that hinges on the intent of the consultations, rather than their outcome.

Article 16 of Convention 169 deals with forced relocations, or to use the language of the Article, that “peoples concerned shall not be removed from the lands which they occupy.” Article 16(2) states that “relocation shall take place only with their free and informed consent.” Of course the next sentence of the Article states “Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures…” It must have been some experience to have been in the drafting room when the language for this Article was under discussion.

Article 16 both supports and declaims free and informed consent as a standard – a requirement which a state must fulfil before completing some action, in this case, the removal of indigenous peoples from their lands. This alone provides a shred of a basis, although, really, not much more.

This must be balanced against the reluctance of the ILO Supervisory Bodies to require actual consent. For example, with respect to a 2004 representation involving Mexico, the Committee of Experts concluded that the Governing Body of the ILO should “determine a consultation mechanism which is adapted, as far as the method it uses is concerned, to the objective of achieving agreement or consent concerning the means proposed, irrespective of whether this is achieved or not”.

In other words, free, prior and informed consent is not required, rather ‘good faith’ consultations, specifically those aimed at achieving consent is required. This seems remarkably similar to Canadian consultation cases, particularly those that require good faith negotiation on the part of the Crown (and indeed, First Nations). But it de-emphasizes the importance of using free, prior and informed consent as a meaningful standard.

In 2011, the Committee of Experts issued a General Observation on consultation that touches on many of these issues and clarifies that the idea of an indigenous “veto” is not currently supported by Convention 169, at least in most cases. The report is nonetheless worth a read for what it does say about consultation standards. The ILO has grappled with a number of ‘consultation’ issues which share many similarities to issues currently faced by First Nations in Canada. Despite the weakness of the Convention on FPIC, there are several other points upon which the ILO is quite strong. The report can be found here: http://www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=626&chapter=5&query=%28C169%29+%40ref%2Bfree%2C+prior+and+informed+consent&highlight=on&querytype=bool&context=0

ILO 169 is used as the basis for a range of other instruments, including the WB (World Bank) operational policy, the IDB (Inter-American Development Bank) safeguard policy, the IFC (International Finance Corporation) safeguards and various corporate initiatives. If one judges the validity of international law by the degree to which it is actually applied, ILO 169 standards are a wide-ranging standard which applies to indigenous rights. One reason for this is that for several years (decades now?), ILO 169 has been the only game in town – the only (perhaps major) global multi-lateral instrument which deals specifically with indigenous peoples.

The World Bank, for its part, does not adopt free, prior and informed consent, but rather the more accurate term “free, prior and informed consultation”, in its Operational Policy 4.10 “Indigenous Peoples” (which I understand is currently under some sort of review, and may be ‘streamlined’). This is the same term applied by the International Finance Corporation in its indigenous peoples safeguard policy (Performance Standard 7).

I anticipate the World Bank, IFC and other safeguard policies will be updated in the upcoming years to better reflect the language of the UN Declaration on the Rights of Indigenous Peoples. This instrument enjoys broader support than C169 (22 ratifications for 169 versus near unanimous support for the Declaration, with no opposition).

UN Declaration on the Rights of Indigenous Peoples

A quick note on the Declaration, particularly relative to C169. Convention 169 was negotiated in the 1980s – a very, very different era in terms of an established connection between indigenous rights and human rights. There was very little to work with, in terms of established standards or even state practice.

The UN Declaration was negotiated over a span of about 30 years. It was very carefully negotiated. I write this because I believe some commentators believe the text of the Declaration is radical, aspirational, or well beyond the capacity of governments to implement. I believe Canada has even suggested the Declaration may be inconsistent with Canadian constitutional provisions protecting indigenous rights!

Every article in the Declaration was carefully crafted and drafted by negotiators from both states and indigenous peoples. This means that countries like Canada probably negotiated the Declaration to ensure its provisions are consistent with both state practice and the state of both domestic and international law. One can easily suggest that the Declaration provides a statement of the standards of international law and state practice at the time of its endorsement (2007). This is important because it makes the difference between the Declaration being a random political statement and an international instrument which carries substantial legal force. There are about six references to consent in the UNDRIP.

Contrasted to ILO 169, which I suggest both supports and declaims consent as a standard, the UNDRIP makes clear that the free, prior and informed consent of indigenous peoples is required before a removal from their lands (Article 10). This, in my mind, reflects the growth of international human rights law in the period between the negotiation of C169 and the conclusion of negotiations on the UNDRIP.

Article 11 requires the development of redress mechanisms for cultural, intellectual, religious and spiritual property taken without the free, prior and informed consent of indigenous peoples.

Article 19 reminds me of Article 6 of ILO 169. It requires states to consult, in good faith, through the representative institutions of indigenous peoples “to obtain their free, prior and informed consent” on any matter which may affect indigenous peoples.

Article 28 is similar to Article 11 in that it requires redress for takings of “lands, territories and resources…traditionally owned, occupied or used and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”.

Article 29 (one of my favorites) requires states to take “effective measures” to prevent the storage and disposal of hazardous materials in indigenous territories without the free, prior and informed consent of indigenous peoples.

Finally, the humdinger of the Declaration, at least for my purposes today, is Article 32. Article 32(2) requires an indigenous representative institution to provide FPIC prior to the approval of any project which might impact indigenous lands, territories or resources. As I wrote above, the Declaration is an international instrument, which was carefully negotiated by Canada and several other states. The fact that the language of Article 32(2) is in the Declaration is itself a shred of a basis that FPIC is a requirement of international law. To know whether it is more than a shred, one must delve a little deeper, something I’m not inclined to get into today.

Inter-American Human Rights System

We’ll start with a very minor sampling of a couple of Petitions before the Inter-American Commission before moving on to one case before the Court. At the outset, one could probably write a full length academic piece about consent in the Inter-American system (in fact, I wouldn’t be surprised if some enterprising academic already has!!). My point, once again, is not to prove that consent is a fixed legal requirement, but only to demonstrate that there is enough here to suggest there is more than a ‘shred’ of a basis to suggest consent is required by international law. More accurately, I’d hoping to bridge the gap between the seeming lip-service paid to consent by ILO C169 and the apparent strong language of the Declaration.

Consider the 2001 Dann Petition (Mary and Carrie Dann v. United States), found here: http://www1.umn.edu/humanrts/cases/113-01.html Like Canada, the United States never ratified the American Convention on Human Rights and is only a declarant to the American Declaration on the Rights and Duties of Man. In the Dann case, the Commission articulated three “general international legal principles applicable in the context of indigenous human rights”. One of these principles is “ where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost.” (footnotes omitted)

Dann recognized consent as a general principle of international human rights law. This means that where the Commission, or for that matter, any other international body, is considering issues of indigenous title, human rights obligations should be interpreted in such a manner to recognize the importance of ‘mutual consent’. If I was arguing the point in a Canadian court, my discussion of the international obligation related to consent would open with this statement.

This concept was applied in the Maya Belize Petition, (found here: http://cidh.org/annualrep/2004eng/Belize.12053eng.htm) where the Commission held that any process to determine the extent of indigenous land rights over traditionally occupied lands require the consent of the “indigenous community as a whole.” (at para 142) Even more interesting, consent is also required prior to the granting of any concessions (and presumably any natural resources extraction permits).

In the 2007 case of the Saramaka People v. Suriname, the Inter-American court articulated a “right to consultation, and where applicable, a duty to obtain consent” (http://www.forestpeoples.org/sites/fpp/files/publication/2010/09/surinameiachrsaramakajudgmentnov07eng.pdf)

One of the reasons I like Saramaka is I’m a bit lazy, and the Court has already done much of my work for me. It states, “[o]ther international bodies and organizations have similarly considered that, in

certain circumstances, and in addition to other consultation mechanisms, States must

obtain the consent of indigenous and tribal peoples” (para 136). That right there is enough to suggest that consent is now a broadly understood requirement under international law. All one needs to do is ‘fill in the blanks’ in terms of which other international bodies and organizations have made statements about consent.

I’d also point out, for those that think this is some sort of major departure from Canadian aboriginal law, that para. 137 of Saramaka closely tracks my own understanding of consultation/consent under Canadian law. Specifically, the court recognizes that effective participation is always required, but in those cases where development will have a “profound impact on the property rights” to a substantial part of the territory of the indigenous nation, free, prior and informed consent is required.

CERD

This post is getting lengthy, but I would be remiss not to mention that consent is referenced in CERD General Recommendation 23, issued in 1997 (http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c). General Recommendations are issued to assist in the interpretation of obligations arising under the Convention. General Recommendation 23 makes two references to “consent”. The first in Article 4(d), strikes me as similar to Article 19 of the UNDRIP. It calls on state parties to “Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent”.

Article 5 call upon state parties to return lands, territories and resources which have been taken without the free and informed consent of indigenous peoples. I believe CERD, in particular, is fertile ground for finding support for an international obligation to obtain FPIC from indigenous nations, in particular circumstances.

A cursory review of country reports suggests that in the views of the CERD committee, consultation simply isn’t enough, sometimes consent is required (for example – and believe me, this is just the tip of the iceberg – in a 1999 decision on Australia, a 2000 report on Australia, a 2002 reviews of Botswana and Costa Rica, 2003 review of Ecuador). A similar review of reporting in other human rights bodies (Human Rights Committee or treaty bodies) would reveal a similarly high number of references to the standard of consent, specifically with respect to indigenous rights.

By the way, Canada has ratified CERD and regularly reports on the situation of indigenous peoples in Canada. Such references would be handy, in fact they’d be necessary, if I were attempting to demonstrate a robust right to consent under international law which should influence the judicial interpretation of s. 35.

Conclusion

Keep in mind, the weakest incarnations of consent exist under ILO 169 and the safeguard policies of international financial institutions (like the World Bank). The strongest interpretations exist under the UNDRIP, the Inter-American system and CERD. The irony for Canada is that Canada has endorsed the UNDRIP and the American Declaration on the Rights and Duties of Man, has ratified the CERD and participates in the Inter-American human rights system (although Canada has not yet ratified the American Convention on Human Rights). Canada did not ratify ILO 169. Evidently, Canada prefers a strong and robust view of free, prior and informed consent.

Is the UN Declaration merely aspirational? Well, if someone asked me (which noone has, incidentally), I’d hesitate before answering yes so quickly. This is especially true if the question is asked in the context of whether there is a shred of a basis for consent under Canadian or under international law.