Things You Probably Don't Know About UNDRIP, and Why They Matter - Part II
How UNDRIP Says Different Things on Consent/FPIC Than You Normally Hear
Amid the busy period in the academic calendar last month, I started a three-part series on how the contents of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) differ from what you often hear, with Part I focused on UNDRIP’s provisions on land rights. I am finally positioned now to finish up that series.
Today, I want to talk about what UNDRIP actually says on free, prior, and informed consent (FPIC) and, as importantly, what it doesn’t.
As with land rights, there are tendencies for much public discussion to be dominated by a larger reading of UNDRIP’s FPIC elements that is quite different from mainstream understandings amongst those more engaged with international law.
Those advocating for Indigenous rights sometimes speak as if UNDRIP imposes widespread requirements of obtaining the consent of Indigenous peoples in all kinds of contexts. Those discussing the risks of Indigenous rights instruments for economic development, or critical of their adoption for some other reason, may reflect that same understanding in order to highlight the risks and potentially challenging consequences of UNDRIP.
The result is that many discussions are dominated by a picture of UNDRIP as imposing FPIC requirements across many possible government actions, even though that probably is not what we should understand from UNDRIP itself.
Let’s be clear that UNDRIP contains articles that have two very different kinds of wording on FPIC.
Consider articles 19 and 32(2):
[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 be fore adopting and implementing legislative or ad ministrative measures that may affect them.
[32(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.
What these articles reference is an obligation to consult and cooperate with Indigenous peoples “in order to obtain” their consent.
This requirement is different than that in articles 10 and 29(2):
[10] Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
[29(2)] States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
These articles suggest that certain state activities cannot proceed without consent of Indigenous peoples being obtained (although 29(2) actually reads a little differently and concerns state measures to ensure consent is obtained, thus also seeking to shape actions by private industry).
The requirement of consulting “in order to obtain” consent and the requirement of actually obtaining consent are two different requirements.
That said, the first is ambiguous. It could suggest actually obtaining consent, or it could suggest undertaking a good faith effort to obtain consent but with the possibility that consent is not actually obtained in a particular instance.
International law scholars engaged with UNDRIP have focused on these sorts of distinctions and have ended up suggesting that to what degree there is a requirement to obtain consent may fall along a sort of spectrum reminiscent of Canada’s duty to consult spectrum.
Leading work by Mauro Barelli is a good example, as was an early report by the UN Special Rapporteur on Indigenous Rights on consultation-related obligations in UNDRIP.
While later reports by the UN Special Rapporteur have tried to develop further obligations, including by suggesting presumptive requirements of consent in the context of certain kinds of developments, those reports do not really modify the mainstream view that there is a sort of spectrum of requirements.
Now, to be fair, that sort of spectrum is much less predictable, more complex, and difficult to discuss in public engagement with the topic.
It also is not the only interpretation possible of these provisions. I have written on the challenging interpretive questions associated with interpreting FPIC in UNDRIP, as well as interpreting UNDRIP more generally, and have shown that different approaches to interpretation can quickly arrive at some very different results as between the sort of possibilities at issue.
While I argued in that article for a particular methodology, one analogously applying principles for the interpretation of international conventions / multilateral treaties, even the adoption of that methodology would not fully answer the question, so it would remain open to some degree.
One of the challenges here is that UNDRIP is not a treaty. You continue to see people who use terminology about it that treats it like a treaty, including statements referring to states like Canada “ratifying” it. Those words unfortunately sometimes come from the mouths of lawyers who purport to be talking about its legal implications but who are actually demonstrating that they are not even engaged properly with the kind of instrument that it is.
UNDRIP is a declaration adopted via a UN General Assembly resolution. It is an important one that reflected decades of drafting by Indigenous peoples and a number of years of negotiation with states, although ultimately with some shortcuts in the latter phases of trying to get to a text.
I see UNDRIP as an important statement of the international community on how human rights are to be understood in the specific circumstances of Indigenous peoples. But UNDRIP’s nature is such that it does not arrive with clear interpretive principles, and its drafters probably did not envision it being incorporated directly into legislation so did not draft it in a way that lent itself to the kind of interpretation necessary on commitments enshrined in statutes.
However, Canada did choose to do just that, first in British Columbia (in the BC DRIPA), then at the federal level (in the federal UNDRIPA), and more recently in a somewhat different form in the Northwest Territories (the NWTDRIPA) that warrants more study than it has received so far (though I hope to work on that some this summer!).
The result is that Canadian courts will need to interpret what UNDRIP means on issues like FPIC, and they will need to do so more specifically than almost anyone else in the world actually needs to do. The legislation in place requires it. But the legislation does not equip the courts for all of the interpretive challenges that they will face.
If governments had been adopting UNDRIP legislation in well-considered ways, it might have been prudent for them to release more commentary on what they foresaw with the legislation. This might have been in the form of commentary documents on UNDRIP at the time that they adopted UNDRIP legislation that could have said something on their own legal interpretations. They did not do that.
In the absence of that, and with very few judges in Canada having deep preparation in international law and correct international law methodologies, there are reasons to foresee potentially very unpredictable outcomes - an issue I have raised before for Law for Breakfast readers.
The FPIC-related requirements in UNDRIP are considered by the mainstream international law community to have quite different meanings than are typically suggested in Canadian discussions of them. But UNDRIP’s interpretation is not easily pinned down, and there are possibilities of highly variable interpretations in Canadian courts that are ill-equipped to consider these questions.
Challenging days ahead.
In Part III, I will turn to discuss the frequently overlooked limitations clause in UNDRIP’s article 46, which says some things both about interpreting the rights in UNDRIP, how to understand limits on them, and how governments may further limit them. Stay tuned…