In 2007, the United Nations Committee on the Elimination of Racial Discrimination reviewed Canada’s progress on removing all forms of racial discrimination1. The committee recommended:
- Canada consult Indigenous Peoples on a legislative solution to the discriminatory effects of the Indian Act against Indigenous women and children;
- Wherever possible, Canada engage in good faith negotiations based on recognition and reconciliation to settle Indigenous land claims; and,
- Canada engage in effective consultations with Indigenous communities to develop mechanisms to ensure application of the Canadian Human Rights Act.
The United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people released recommendations on the duty to consult in July 20092. Recommendations include:
- States have a duty to consult with Indigenous Peoples through special, differentiated procedures in matters affecting them, with the objective of obtaining their free, prior and informed consent;
- The duty to consult applies whenever a legislative or administrative decision may affect Indigenous Peoples in ways not felt by the State’s general population, and in such cases the duty applies in regard to those indigenous groups that are particularly affected and in regard to their particular interests;
- States should develop mechanisms for determining and analysing if, and the extent to which, proposed legislative or administrative measures, including those for natural resource extraction or other development activities, affect Indigenous Peoples’ particular interests, in order to determine the need for special consultation procedures well before the measures are taken;
- The specific characteristics of the required consultation procedures will vary depending on the nature of the proposed measure, the scope of its impact on Indigenous Peoples, and the nature of the indigenous interests or rights at stake;
- The objective of the consultation should be to obtain the consent or agreement of the Indigenous Peoples concerned;
- Consultations should occur early in the stages of the development or planning of the proposed measure, so that Indigenous Peoples may genuinely participate in and influence the decision-making;
- The principle that indigenous consent should be the objective of consultation does not mean that obtaining consent is an absolute requirement for all situations;
- States should define into law consultation procedures for particular categories of activities, such as natural resource extraction activities in, or affecting, indigenous territories;
- Consultation procedures that are included into laws or regulations, as well as ad hoc mechanisms of consultation, should themselves be developed in consultation with Indigenous Peoples;
- States should make every effort to allow Indigenous Peoples to organize themselves and freely determine their representatives for consultation proceedings, and should provide a climate of respect and support for the authority of those representatives;
- Indigenous peoples should work, when needed, to clarify and consolidate their representative organizations and structures in order that they may function effectively in relation to consultation procedures;
- States should develop adequate analyses and impact assessments of proposed legislative or administrative measures, and make them available to the Indigenous Peoples concerned along with all relevant information well in advance of negotiations;
- States should endeavour to ensure that Indigenous Peoples have adequate technical capacity and financial resources in order to effectively participate in consultations, without using such assistance to leverage or influence indigenous positions in the consultations;
- Relevant agencies and programmes within the United Nations system, as well as concerned NGOs, should develop ways to provide Indigenous Peoples with access to the technical capacity and financial resources they need to effectively participate in consultations and related negotiations;
- Even when private companies, as a practical matter, are the ones promoting or carrying out activities, such as natural resource extraction, that affect Indigenous Peoples, States maintain the responsibility to carry out or ensure adequate consultations;
- Private companies should conform their behaviour at all times to relevant international norms concerning the rights of Indigenous Peoples, including those norms related to consultation;
- Private companies that operate or seek to operate on or in proximity to indigenous lands should adopt codes of conduct that bind them to respect Indigenous Peoples’ rights in accordance with relevant international instruments, in particular the United Nations Declaration on the Rights of Indigenous Peoples;
- States should develop specific mechanisms to closely monitor company behaviour to ensure full respect for Indigenous Peoples’ rights, and to ensure that required consultations are fully and adequately employed;
- States should take measures to improve the mediation capacity of government agencies, in partnership with companies if applicable, to deal with potentially conflicting interests in relation to indigenous land and resources; and,
- States should work with all stakeholders to implement mechanisms of company monitoring and ensure protection from discrimination and equal opportunities to Indigenous Peoples.
Canada Failure to Meet UN Standards of Consultation:
The Canadian federal government’s guidelines for Indigenous consultation3,4 do not meet the standards set out in the United Nations recommendations on the duty to consult.
1. (2007) United Nations International Convention on the Elimination of all Forms of Discrimination. Committee on the Elimination of Racial Discrimination. Consideration of Reports Submitted by States Parties Under Article 9 of the Convention. Concluding Observations of the Committee on the Elimination of Racial Discrimination; Canada. CERD/C/CAN/CO/18 https://caid.ca/UNRacDisCan2007.pdf
2. (2009) United Nations Human Rights Council. Promotion and Protection of all Human Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People James Anaya. A/HRC/12/34 https://caid.ca/UNHRC2009.pdf
3. (2008) Canada Aboriginal Consultation and Accommodation: Interim Guideline for Federal Officials to Fulfil the Legal Duty to Consult. https://caid.ca/CanConPol021508.pdf
4. (2011) Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult. https://caid.ca/AboConAccGui2011.pdf
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