This is, I believe, my fourth posting on consent. I’m content to leave this issue for now, but want to issue some final thoughts on the matter.
To date, I’ve suggested that there is at least a shred of a basis in Canadian law to support a right of First Nations consent. I have also posted a bit on some international law sources dealing with consent and on ‘domesticating international law’. The purpose of this post is to offer some thoughts on First Nations and consent, as it currently stands under Canadian law. This is not a post about aspiration, or where the law should go, but where it already is.
I want to start by reiterating a point that I have made in the past. Consent is a firm principle and a firm rule already in aboriginal law. For example, in Delgamuukw, the court noted that “[s]ome cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.” (http://canlii.ca/t/1fqz8 at para 168).
Opponents of consent often conflate the term with another term — veto. They find support in one unfortunate paragraph (48) of the Haida case (http://canlii.ca/t/1j4tq), where the Court holds that “[t]his process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case.”
What the Court never did was explain the subtle difference between the terms ‘consent’ and ‘veto’. Confusion over this matter leads many to speculate that there is no way for First Nations to prevent developments which would violate their rights or end their ways of life, but rather only a way for First Nations to slow the approvals process down and compel the payment of money or other inadequate ‘accommodation measures’.
Consent, incidentally, means something like “Permission for something to happen or agreement to do something.” Consent is permissive, one is allowing something to happen. The consequences for failing to secure consent vary based on the circumstances.
One definition of a veto is “[a] constitutional right to reject a decision or proposal made by a law-making body”. That’s a little strict for our purposes because it is very rare for First Nations to be faced with decisions or proposals from Parliament (although, one could argue that the Minister is a law-making body). Incidentally, the Minister of Aboriginal Affairs may reject First Nations by-laws for any or no reason — though I prefer to call that disallowance rather than a ‘veto’ — I concede ‘veto’ may be appropriate.
For my purposes, a veto is when one party, for whatever reason (or no reason at all) can prevent another party from taking action. The key point is a veto connotes a very strong unilateral action. By this I mean that to exercise a veto, for example, one need not go to court to do so. In fact, having to go to court to secure a ‘veto’ is no veto at all.
Why is the term important? It implies that First Nations, for any reason, can block certain developments by simply stating their opposition to those developments. It ignores the fact that First Nations consent in Canada can only be exercised through a court, not unilaterally.
So when people say, First Nations do not have a ‘veto’ under Canadian law, I’m content to let it slide. My understanding of the relationship between First Nations and Canada means I think that true reconciliation implies First Nations ought to have a true veto over a range of issues, but here we’re only discussing where the law is today. But it drives me crazy when people say such things to conflate a ‘veto’ with consent, and particularly with free, prior and informed consent.
To listen or read some opinions on ‘veto’ and ‘consent’, one is left with the impression that First Nations are powerless to stop development. However, let’s be clear, the reason why First Nations access courts is because they claim that certain government actions violate the Constitution. Internationally, the reason FPIC is invoked by indigenous peoples is because they are facing violations of fundamental and recognized human rights, such as the right to life, the right to be free of discrimination, the right to culture or the right to property.
In other words, many proponents of the ‘no vetos for First Nations’ position, would have us believe that there really isn’t anything that First Nations, or for that matter anyone else, can do to stop the Crown from violating the Constitution (or, internationally, any country from violating the human rights of indigenous peoples)! What free, prior and informed consent does is provide permission, or alternatively an excuse, for Crown conduct which would otherwise be unconstitutional.
It is a diminished view of the rule of law to hold a position that violations of fundamental constitutional rights can not be prevented and that victims of such violations can be made whole by payments, either before or after the fact. Fundamental rights such as freedom, life and liberty are not for sale. Nor can society mitigate conditions for people deprived of their freedom or liberty. At one time such thinking would have been used to suggest slavery could be ameliorated through regulation, rather than recognizing the condition of slavery itself needed to be abolished. In a similar vein, Aboriginal rights cannot be bought and sold and the non-recognition of aboriginal rights can not be ameliorated.
In any event, one must remember that it is not First Nations making unilateral decisions about resource projects. Rather, it is courts which must weigh the impacts of contemplated Crown conduct on First Nations treaty and aboriginal rights. In many cases, this implicates the very ability of a First Nation to continue its culture — in essence to continue to survive as a people. In those cases, a project would be disallowed.
For example, consider this statement by a federal Department of Justice lawyer to the Standing Committee on Natural Resources (http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5160386&Language=E&Mode=1&Parl=41&Ses=1 at 16h30 or so), “meaningful consultation doesn’t need to be a process without a time limit or something that provides a veto to an aboriginal party. It is being able to justify to a third party—in this case, the courts—that you have made an honest, reasonable effort in light of the stakes for the aboriginal party and the risk of the adverse impact of your decision to factor that into your decision-making process.” Despite this rather lucid articulation of how the duty to consult works, a glance through the testimony reveals conflation with ‘vetos’ and ’consent’ elsewhere.
The role of free, prior and informed consent in such a process is to vitiate an otherwise unjustifiable derogation or infringement of treaty or aboriginal rights. Again, consent is a permissive concept and neither the duty to consult, nor Aboriginal law more generally impose a requirement for First Nations to agree — here to provide permission. The ‘veto’ spoken of here is not exercised First Nations, but by the courts.
To hold that First Nations rights cannot be used to stop projects is not a slight against First Nations, but rather against the courts, which are tasked with reconciling First Nations rights with Crown interests. To me, that is an attack on the rule of law.