Thank you.
I'd like to begin by acknowledging the Algonquin people on whose territory we have the privilege of meeting today.
I would like to thank the members of the committee for this opportunity to come to speak to you. I would also like to express my appreciation for the opportunity to share the table with Chief Laboucan-Avirom.
The subject of this study is one of great interest to Amnesty International, and to me personally. There are a lot of things I could talk about, but what I'd like to do is focus on one specific example of international guidelines for engagement with indigenous peoples, which is the International Finance Corporation's performance standards on indigenous peoples.
Members of the committee will know that the International Finance Corporation, IFC, is the institution within the World Bank group that focuses exclusively on support to the private sector in development activities.
After the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples in 2007, the IFC undertook a review of its social and environmental performance standards. In 2012 it adopted a dramatically revised requirement for projects potentially affecting indigenous peoples.
These performance standards take a precautionary approach, setting out measures needed to reduce the risk of significant harm to indigenous peoples, regardless of the recognition or lack of recognition of indigenous people's rights in national law. The performance standards do not directly address indigenous people's right to self-determination, nor do the standards address indigenous people's continued right to exercise jurisdiction over their traditional lands. These are matters at the very heart of the UN declaration, but the performance standards leave them to national governments to resolve.
Strikingly, however, even in the absence of explicit requirements to respect and uphold traditional land title and to engage with indigenous peoples as an order of government exercising jurisdiction within their territories, the standards that were adopted by the IFC are still, in many ways, considerably more stringent than Canada's current domestic laws and regulations around resource extraction.
In particular, I would like to draw the committee's attention to the IFC's provisions on free, prior and informed consent, FPIC. The IFC states that FPIC is both a process and an outcome. In other words, it doesn't just call on the private sector to seek consent; it makes consent a formal requirement for its support.
The performance standard specifically requires FPIC in four broad areas: where there is potential for significant impacts on indigenous peoples's identities or the cultural, ceremonial or spiritual aspects of their lives; where there are impacts on lands and natural resources subject to traditional ownership or under customary use; where a project might lead to displacement from lands and resources; or where a project proposes to exploit indigenous people's cultural heritage.
The IFC explicitly states that the process by which indigenous peoples grant or withhold their consent must be a process that is acceptable to them. The performance standard further states that the process must be culturally appropriate and it must engage with the existing customary institutions and decision-making processes of the affected peoples.
This process must begin at the earliest stages of project design and continue through the development and implementation of the project. The performance standard requires that the process and any agreements that are reached be documented. Furthermore, the performance standard requires that a mutually acceptable grievance process be established to address any disputes that could arise over the agreements.
I've mentioned that one of the IFC's tests for whether FPIC is required is the potential for significant impacts. In determining whether impacts are significant, the performance standard calls for consideration of the strength of available legal protections for indigenous rights, indigenous people's past and current relationship to the state and to other groups in society, their current economic situation, and the importance of land and resources to their lives, economy and society.
Significantly, this determination of whether or not the potential harm is significant, and therefore requiring consent, is to be undertaken in direct collaboration with the affected peoples themselves, as opposed to arbitrarily or unilaterally determined by the state or by the IFC.
I also wanted to note, in the context of the current debates around the federal government's proposed new impact assessment regime, that the IFC's performance standard on indigenous peoples and other performance standards adopted by this institution explicitly require the involvement of women in the determination of impacts as well as specific consideration of how the impacts can be different for men than for women.
Canada is one of the founding members of the IFC. Like other member countries, Canada appoints a representative to the board of governors. Additionally, Canada holds one of 24 seats on the board of executive directors, and Canada's Minister of Finance reports regularly to Parliament on the operations of the IFC and other World Bank institutions.
In responding to this committee's 2017 report on the future of Canada's mining sector and your recommendation that Canada promote and improve responsible mining practices in Canada and abroad, Natural Resources Canada responded that it does in fact encourage companies to “adopt best practices domestically and internationally by implementing principles and guidelines into their day-to-day operations” from sources such as the IFC's performance standards.
All of this underlines the main point I want to make, namely, that an institution that Canada helps to govern, and which Canada refers to as a source of best practices, actually sets out a significantly higher standard for engagement with indigenous peoples than the federal government generally requires of itself or of corporations operating in Canada.
Numerous critiques have been made about the insufficiency of the IFC's own enforcement of its standards. This doesn't change the fact that the standards that it adopted and instituted more than five years ago are in many ways more stringent than those in effect in Canada, and that there is a gap in the requirements of corporate engagement with indigenous peoples between what is required of corporations acting in Canada versus those acting abroad. In this case, it is Canada, Canada's laws and Canada's regulations and practices that are falling short of this international standard.
I would be happy to talk about this with you further. Thank you.