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Nov. 29, 2017

Indigenous communities located away from Canada’s most populous centres are struggling to exercise their rights in relation to proposed developments on their traditional territories, many of which are rich in natural resources.

Wilfrid Laurier University Community Psychology Professor Terry Mitchell is leading a research team exploring what it will mean for Indigenous peoples, the Canadian federal government, provincial and territorial governments, and industry to implement the United Nations Declaration on the Rights of Indigenous Peoples, with a focus on the right to free, prior and informed consent (FPIC).

The research is examining what free, prior and informed consent looks like in practice, focusing especially on mining and resource governance, as well as on what free, prior and informed consent means to Indigenous peoples.

Free, Prior and Informed Consent

In 2007, 144 countries adopted the United Nations Declaration on the Rights of Indigenous Peoples, but Canada was not one of them. Canada’s initial refusal to adopt the declaration was focused on concerns about language around land rights and the declaration's inconsistency with the way such rights have been defined by the Canadian Constitution and Canadian courts. Canada did endorse the declaration in 2010, but maintained objector status until 2016, when the current Liberal government committed to its full implementation.

Mitchell and her team, including several graduate students along with PhD candidates Courtney Arsenault and Darren Thomas, are probing the meaning, understanding and implementation of articles 19 and 32 of United Nations Declaration on the Rights of Indigenous Peoples, focused on the right to “free, prior and informed consent.”

“Implementing (the declaration) has implications for Waterloo Region and Brantford, as it does for all of Canada,” says Alex Latta, an associate professor of global studies, member of the Laurier Institute for Water Science and collaborator on this project. “We’ve seen an increase in the use of a land acknowledgement at Laurier and elsewhere in the region, but it needs to be more than that.”

Website Resource

Mitchell and her research team have created a “one-stop shop” resource for Indigenous communities, leaders and academics to access information about free, prior and informed consent through a curated online library of resources. The website – which includes information graphics, audio files, videos, podcasts, manuals and academic articles – is currently available in English, Spanish and French. It will be curated and maintained by Six Nations Polytechnic, a post-secondary institution located on the Six Nations of the Grand River Territory.

“Generally, Indigenous communities are not provided sufficient time or resources to review mining or logging proposals and many don’t know what their rights are according to (the UN Declaration on the Rights of Indigenous Peoples),” says Mitchell. “This website resource will try to ensure the information gets to the communities as we in turn ask them what free, prior and informed consent means to them."

The Challenge of Exercising Rights

Thus far, Mitchell’s research reveals a very low level of implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Case studies in Ontario and Chile both highlight the challenges Indigenous communities face in exercising their rights to free, prior and informed consent.

Articles 19 and 32

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 32

  1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
  2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
  3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

In northern Ontario, Matawa First Nations communities are struggling with unsafe drinking water, inadequate housing and insufficient access to social and medical services. The historical trauma of the residential school system and colonization still weighs heavily on many Indigenous communities. One symptom of this trauma is the high rate of suicide among Indigenous youth in parts of Canada’s North.

Mining companies interested in accessing Indigenous lands often propose creating infrastructure, access to safe water and food, and education for Indigenous communities. Mitchell says these basic necessities shouldn’t be on a bargaining table.

“Children having access to safe water, food, education and basic safety is a right of all Canadians and not something you have to barter for," says Mitchell. "It’s not the responsibility of business to provide basic human rights.”

A Better Way for the Economy, Environment

Implementing the principle of free, prior and informed consent will have major economic implications. Latta says having meaningful dialogue and collaboration from the beginning may be key to creating a more stable natural resource industry and ensuring Indigenous peoples reap the benefits they deserve.

“Ultimately, an important part of our economy does depend on natural resources," says Latta. "If we want to develop those resources successfully, Indigenous peoples need to be part of the conversation. Historically, significant amounts of money have been invested in projects that are shut down because Indigenous communities weren’t consulted. We could have more economically secure investments and more environmentally sustainable industry if free, prior and informed consent is implemented successfully.”

Mitchell says there’s also a big environmental benefit from empowering Indigenous communities to exercise their rights and responsibilities of land and resource stewardship.

“Indigenous communities take their responsibilities to the Earth very seriously and their identity is related to relationships to animals, plants and to us," says Mitchell. "They’ve occupied and taken care of these lands for centuries, so there’s a great benefit we all experience in working respectfully with Indigenous communities.”

Mitchell and Latta say they hope their research will continue to elevate the voices of Indigenous people and increase awareness of their rights as outlined in the UN Declaration on the Rights of Indigenous Peoples.

Mitchell’s research is funded through a Social Science and Humanities Research Council Insight Grant and includes case studies conducted in partnership with Indigenous communities in the Northwest Territories, Nunavut, Ontario and Chile.

Mitchell also coordinates a research network called the Pan-American Indigenous Rights and Resource Governance Network to foster collaboration in addressing issues concerning free, prior and informed consent regarding Canadian mining activities in Latin America. That work is done in collaboration with internationally recognized Indigenous rights lawyer José Aylwin from Chile.

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