Blog: UNDRIP, and ‘the last word’

It’s all so simple to the person who, discussing LNG development, posted this comment on our Facebook page: “The indigenous have the last word what happens to the land.”

Do we? If so, what does ”last word” mean? Whose last word? And how is that last word determined, decided, expressed, and put into practice?

We take it that the person who posted the comment has their own, simple definition of “free, prior and informed consent” and “free and informed consent”, the concepts and/or principles that appear in the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP.

Somehow, the principles of UNDRIP are going to be integrated into Canadian law. In the words of Indigenous Affairs Minister Carolyn Bennett in 2016: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”

Indigenous MP Romeo Saganash’s Bill C-262 seeks to “ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. “ It has been given second reading in Parliament and referred to the House Standing Committee on Indigenous and Northern Affairs.

We don’t know yet what the outcome of all this will look like in practice and in legislation. And we have more unknowns when it comes to Ottawa’s new promise to recognize Indigenous rights in the Constitution, through federal legislation that is to become law by the end of the year.

These promises have led to endless speculation as to just what Ottawa will do, and how, and to interpretations as far apart as (i) “First Nations will always have a veto over resource development” and (ii) “First Nations have to be consulted and accommodated, but they do not have a veto.”

We’ll leave all that, and ‘the last word’, to the passage of law and time.

What we at the First Nations LNG Alliance see in UNDRIP is not a legalistic, adversarial, winner-take-all, battlefield of rights, but an opportunity to implement in Canada the concept and long-overdue practice of “collaborative consent.”

This is explored in an article that appeared just a few weeks ago on the online magazine Policy Options Politiques. It’s well worth a read, beginning with this introduction:

In recent years, governments at all levels in Canada have stated their commitments to reconciliation and building nation-to-nation approaches with Indigenous peoples. Both the federal government and, more recently, the British Columbia government, have committed to implementing UNDRIP and the Truth and Reconciliation Commission of Canada’s Calls to Action, which reiterate the need to secure consent and ensure Indigenous peoples are full partners in Confederation.

Turning this commitment into reality is perhaps the greatest challenge of the coming decade. It may well define Canada in a global context, and will certainly have significant implications for governance and land and resource development decision-making across the country.

Policy Options goes on to say this:

Researchers who have studied the declaration at length have remarked that implementing UNDRIP implies building consent through long-term, ongoing collaborative governance relationships. . . . This relational approach to free, prior and informed consent moves beyond the adversarial debates around veto and focuses instead on processes for Indigenous peoples to be full and equal governing partners in decisions affecting their lands.

And that’s what we hope to see: full and equal partnerships based on mutual respect, mutual understanding, and recognition of Indigenous rights and title.

It’s a world in which “the last word” is a fully shared and mutual word.

As Policy Options puts it:

Collaborative consent is like cooperative federalism but it goes further, in that it embraces the critical role of Indigenous nations as full partners in building Canada’s future. It requires all governments (Crown and Indigenous) to continuously build new, shared spaces, structures and institutions as part of an evolving relationship.

That’s a world that may seem strange to those trained to think in precise, categorical, legalistic and adversarial terms.

But as Policy Options writes:

The intention of seeking collaborative consent . . . would be to build real partnerships and new forms of governance, ones that would do away with courts as a way to resolve disputes or mediate a fraying relationship, which is cumbersome and often ineffective.

Let’s go for it.

Chief Councillor Robert J. Dennis Sr., Huu-ay-aht First Nations