The worldwide drive to extract and develop minerals and fossil fuels (oil, gas and coal), coupled with the fact that much of what remains of these natural resources is situated on the lands of indigenous peoples, results in increasing and ever more widespread effects on indigenous peoples’ lives… indigenous peoples around the world have suffered negative, even devastating, consequences from extractive industries…
–James Anaya, former UN Special rapporteur on the rights of Indigenous peoples
At RAVEN, we support Indigenous Nations’ access to the courts to assert their rights by fundraising to support their legal defense. After ten years of supporting different communities’ assertion of their Indigenous rights, we have found that a deeper understanding of the UN’s Declaration on the Rights of Indigenous Peoples along with an understanding of Free, Prior and Informed Consent (FPIC) is crucial to make sense of legal challenges to resource extraction projects. The general rule: consent is required for extractive projects within indigenous territories. Below are some helpful excerpts from some of our favorite resources on the topic.
James Anaya, (former UN Special rapporteur on the rights of Indigenous peoples) (2013) Extractive industries and indigenous peoples clarifies the context of resource extraction and its implications upon Indigenous sovereignty, along with recommendations for UNDRIP and FPIC implementation:
“It must not be assumed that the interests of extractive industries and indigenous peoples are entirely or always at odds with each other. In the course of his examination of situations across the globe, the Special Rapporteur has found that in many cases indigenous peoples are open to discussions about extraction of natural resources from their territories in ways beneficial to them and respectful of their rights. On the other hand, there are certainly cases in which resource extraction is simply incompatible with indigenous peoples’ own aspirations and priorities for development, or may impede their access to lands and natural resources critical to their physical well-being and the integrity of their cultures and livelihoods.
Increasing resource extraction and its mounting effects on indigenous peoples make it all the more imperative to reverse historical trends and secure indigenous peoples’ rights in this context. As a starting point there should be broad understanding among all relevant actors about the content of the internationally recognized rights of indigenous peoples
As part of their right to self-determination, “indigenous peoples have the right to determine priorities and strategies for the development or use of their lands and territories”.
In affirming the general rule of consent for extractive activities within indigenous territories, the United Nations Declaration on the Rights of Indigenous Peoples emphasizes that, in order to obtain consent, “States shall consult and cooperate in good faith with theindigenous peoples concerned through their own representatives” (art. 32, para. 2). The Declaration thus emphasizes that good faith consultations and cooperation are a precondition for agreements with indigenous peoples concerning extractive activities. As stated above (para. 25), indigenous peoples may decline to enter consultations about extractive industries, just as they may choose to withhold consent to them. But if consent or agreement on extractive activities is to happen, it must be on the basis of adequate, good faith consultations or negotiations.
Timing: In accordance with the principle of free, prior and informed consent, consultations and agreement with indigenous peoples over an extractive project should happen before the State authorizes or a company undertakes, or commits to undertake, any activity related to the project within an indigenous territory, including within areas of both exclusive and non- exclusive indigenous use. As a practical matter, consultation and consent may have to occur at the various stages of an extractive project, from exploration to production to project closure.”
Roshan Danesh, in their op-ed for the Times Columnist asks, “As federal and provincial governments contemplate decisions regarding major pipeline projects, the public debate is increasingly around one issue: Is First Nations consent required?”
Danesh argues that we need to understand three basic concepts in light of this pertinent public question.
- “First, consent is already an established standard of Canadian law. The declaration is not the only, or main, reason we must address it.The Supreme Court has confirmed consent is part of the framework of aboriginal title and rights protected in Section 35 of the constitution. In Tsilhqot’in Nation vs. B.C., the court affirms consent multiple times as the standard for use of lands and resources subject to aboriginal title.”
- Second, our economy cannot afford delay in sorting out what consent means and how to implement.
- Third, in Canada we have extensive experience of distinct governments — with distinct authorities, jurisdictions, responsibilities and laws — having to structure how to align and harmonize their respective decisions for matters to move forward… What is different now is that it is First Nations governments with which alignment and harmony need to be achieved. Our struggle with this says more about our society’s need to come to terms with Canada’s colonial past, lingering racism and need to achieve recognition and reconciliation, than the idea that consent is something unfamiliar to be feared.
You can learn more on the topic with this wonderful book: Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action (2010) Edited by Jackie Hartley, Paul Joffe, Jennifer Preston; and read more here: Paul Joffee (2016). Indigenous Peoples’ Human Rights, Sustainable Development, and Climate Change Some International Dimensions