Self-determination & Free, Prior and Informed Consent

Self-determination & Free, Prior and Informed Consent

Understanding the United Nations Declaration on the Rights of Indigenous Peoples

February 1, 2021

“Indigenous peoples must be part of decision making when our rights and well-being are at stake. Working with us to determine what that looks like is the smart thing to do. It will lead to fewer acrimonious decisions, fewer court battles, more timely decisions, and better outcomes for us all.”

–Chief Wilton Littlechild, addressing United Nations Permanent Forum on Indigenous Issues, 2018

Executive Summary

The heart of the matter is the universal right of peoples to self-determination. Indigenous peoples, no less than any other peoples or Nations, have the collective right to make their own decisions through their own institutions and systems of governance and law.

Respect for the right to self-determination is crucial to reconciliation. Self-determination is at the heart of the UN Declaration on the Rights of Indigenous Peoples including its provisions on free, prior and informed consent. The Truth and Reconciliation Commission of Canada stated as its first Principle of Reconciliation that the UN Declaration on the Rights of Indigenous Peoples “is the framework for reconciliation at all levels and across all sectors of society.”

There is no inherent conflict between the human rights framework set out in the UN Declaration and Canadian constitutional law. To the contrary, the Declaration provides a way to achieve the constitutional imperative of reconciling Canadian law with the pre-existing sovereignty of Indigenous peoples. The right of Indigenous peoples to make their own decisions includes the right to say “yes”, the right to say “no”, and the right to “yes with conditions” to proposals brought forward by others. The term “veto” implies an absolute power, regardless of the circumstances in any given case. Characterizing the right to say no as an absolute veto is confusing, potentially misleading, and often deliberately alarmist. Veto implies a decision that is arbitrary, unilateral, without legal foundation, and taken outside of any legitimate process. None of these things are true of decisions taken by Indigenous peoples in the legitimate exercise of their rights.

Misrepresentations of the Declaration must be set aside so that Canada can get on with the necessary and long overdue work of ensuring that the rights of Indigenous peoples are recognized, respected, protected and fulfilled.

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