[Witness speaks in Northern Michif :]
Thank you for the invitation to appear today. I'm really excited that this committee is undertaking this important study, so much so that I was willing to take the afternoon away from my three-month-old daughter. My apologies if I'm perhaps not as put together as I might normally be, but I managed to pull together my presentation while she was napping on my lap over the last couple of weeks. I'm really excited to be here, and I look forward to having some time for questions, so I will try to be as succinct as possible.
For your information, I am a professor in the Faculty of Law here at the University of Manitoba. I've been participating in the international indigenous rights movement for the past 15 years. I am also the co-chair of the rights of indigenous peoples interest group for the American Society of International Law, and a member of the International Law Association's implementing the rights of indigenous peoples committee. I've also provided technical assistance to the UN expert mechanism on the rights of indigenous peoples for their study on best practices for implementing the UN declaration.
Today, I want to focus my remarks on the idea of international best practices, but I want to highlight the international legal standards that should guide Canada's engagement with indigenous peoples. I'll make reference to three main rights, which include the right to self-determination, the right to participate in decision-making and the right to free, prior and informed consent.
While many people cite the UN Declaration on the Rights of Indigenous Peoples in relation to these rights, it's important to know that these rights are grounded in broader human rights treaties that Canada is a party to, including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.
My presentation here today is going to draw on four main documents, which I provided to the clerk this morning. There are two studies by the UN expert mechanism on the rights of indigenous peoples: the new World Bank environmental and social standards, as well as the “zero draft” of the convention on business and human rights, which is based on the UN Guiding Principles on Business and Human Rights.
To this end, while I would say that I'm providing a presentation on best practices, I actually think it's much more than simply best practices. I'm trying to provide what, in my expert opinion, are the minimum necessary standards that Canada is required to meet to uphold its international human rights obligations.
What I've done is try to compile some of the key areas that I think Canada must uphold, based on these various documents. As a starting point, I think it's quite clear in international law that indigenous peoples must not just be able to participate in decision-making processes that affect their rights, but must also actually control the outcome of such processes. To this end, the participation must be effective. The processes must uphold indigenous peoples' human rights, including the right to self-determination and the right to use, own, develop and control their lands, territories and resources. This is critical, because, in this regard, FPIC safeguards cultural identity. For indigenous peoples, as we know, cultural identity is inextricably linked to their lands, resources and territories.
When we're speaking about FPIC, we have some guidance on what these different standards are. “Prior” means that the process must occur prior to any other decisions being made that allow the proposal to proceed. The process should begin as early as possible in the formulation of a proposal. The international standard is for indigenous peoples' engagement to begin at the conceptualization and design phases. It must also provide the necessary time for indigenous peoples to absorb, understand and analyze the information provided and to undertake their own decision-making processes.
We speak about “informed” consent. International law requires that independent specialists be engaged to assist in the identification of project risks and impacts. Indigenous people should not have to rely solely on the materials put forward by the proponent.
Finally, there is “consent”. I'm sure I'll field more questions on this, so I didn't put too much into the presentation, but I think importantly consent means that indigenous peoples must not be simply required to say yes to a predetermined decision; there has to be the opportunity to engage in a more robust process.
To this end, the process must occur in a climate free from intimidation, coercion, manipulation and harassment. It must promote trust and good faith and not suspicion, accusations, threats, criminalization, violence toward indigenous peoples or the taking of prejudiced views towards them. The process must ensure that indigenous peoples have the freedom to be represented as traditionally required under their own laws, customs and protocols, with attention to gender and representation of other sectors within the community. Indigenous peoples must also be able to determine how and which of their institutions and leaders represent them.
Under international law, indigenous peoples also have the power to determine the course or the actual consultation process. This includes being consulted when devising the process of consultation and having the opportunity to share or use or develop their own protocols in consultation.
Finally, the process must also allow for indigenous peoples to define the methods, the timelines, the locations and evaluation of the consultation process.
One question often raised is when FPIC is required. Generally, it's when a project is likely to have a significant direct impact on indigenous peoples' lives, lands, territories and resources. It's important to note that it's indigenous peoples' perspective on the potential impact that is the standard here. It's not the state's or the proponent's determination of the impact, but indigenous peoples'. Also, this right of FPIC is not limited to lands that Canada recognizes as aboriginal title lands; it includes lands that indigenous peoples have traditionally owned or otherwise occupied and used, including lands, territories and resources that are governed under indigenous peoples' own laws.
It's important during these processes that states engage broadly with all potentially impacted indigenous peoples through their own representative institutions. They must ensure that they are also engaging indigenous women, children, youth and persons with disabilities, bearing in mind that government structures of some indigenous communities may be male-dominated. To this end, consultation should also provide an understanding of the specific impacts on indigenous people. It's not just about having indigenous women, children and youth present, but also specifically turning your mind to how the project may impact indigenous women differently or specifically.
Another area that I think is particularly important in Canada is the importance of ensuring that FPIC processes support consensus building within indigenous peoples' communities and must avoid any process that may cause further division within the community. In relation to processes that might further divide, we want to be aware of any situations of economic duress, such as when communities may be feeling pressure to engage in the process because of economic duress, and trying to ensure that any process, consultation or otherwise is not further dividing the community.
As was already mentioned, these consultation processes should occur throughout the project, ensuring that there is constant communication between the parties. Under international law, it's important to note that these consultation processes where indigenous peoples are engaged in decision-making and provide their free, prior and informed consent should not be confused with public hearings for the environment and regulatory regimes.
Sorry, I think I am running short of time. I want to make one or two more points.
International law does recognize that indigenous peoples may withhold their consent in several circumstances, which include following an assessment and conclusion that the proposal is not in their best interest, where there are deficiencies in the process, or to communicate a legitimate distrust in the consultation process or the initiative.
Some might say that the UN declaration is unclear because different articles provide different wording. However, I think the UN Expert Mechanism on the Rights of Indigenous Peoples has tried to clarify that the terms “consult” and “co-operate” denote a right of indigenous peoples to influence the outcome of the decision-making process, not just to be involved in it. I think the standards and international law are quite clear, and Canada should be taking steps to uphold these obligations.
Finally, to wrap things up, there are some broader objectives that the right to participate in decision-making seeks to achieve that can help us guide these processes. The first is to correct the de jure and de facto exclusion of indigenous peoples from public life, and the second, to revitalize and restore indigenous people's own decision-making processes.
Finally, free, prior and informed consent also has some underlying rationales that should guide our implementation: To restore indigenous people's control over their lands and resources; to restore indigenous people's cultural integrity, pride and self-esteem; and to redress the power imbalance between indigenous peoples and states, with a view to forging new relationships based on rights and mutual respect between the parties.
[Witness speaks in Northern Michif:]