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Between Law and Action: Assessing the State of Knowledge on Indigenous Law, UNDRIP and Free, Prior and Informed Consent with Reference to Fresh Water Resources

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Between Law and Action: Assessing the State of Knowledge on Indigenous Law, UNDRIP and Free, Prior and Informed Consent with Reference to Fresh Water Resources Between Law and Action: Assessing the State of Knowledge on Indigenous Law, UNDRIP and Free, Prior and Informed Consent with reference to Fresh Water Resources HANNAH ASKEW COREY SNELGROVE KELSEY R WRIGHTSON DON COURTURIER ALISA KOEBEL LINDA NOWLAN KAREN BAKKER This research was supported by the Social Sciences and Humanities Research Council of Canada Contents KEY MESSAGES ............................................................................................................................... 3 EXECUTIVE SUMMARY........................................................................................................................4 CONTEXT....................................................................................................................................... 7 History of the United Nations Declaration on the Rights of Indigenous Peoples...................................................................7 Principles of The United Nations Declaration on the Rights of Indigenous Peoples..............................................................9 UNDRIP and Water..................................................................................................................................................................9 IMPLICATIONS................................................................................................................................11 1) Implementation of UNDRIP in Canada............................................................................................................................. 11 2) Indigenous Law and UNDRIP............................................................................................................................................ 11 3) The Duty to Consult and Free, Prior and Informed Consent (FPIC)................................................................................. 12 APPROACH................................................................................................................................... 13 RESULTS.......................................................................................................................................14 Result 1: Water Insecurity Is High and Growing for Indigenous Peoples in Canada.............................................................14 Result 2: Canada’s Approach to Water Rights Conflicts with Indigenous Water Rights as set out in UNDRIP......................14 Result 3: UNDRIP Accelerates the Resurgence of Indigenous Water Rights and Law..........................................................16 Result 4: There Is a Lack of Consensus on How to Interpret Free, Prior and Informed Consent..........................................17 Result 5: FPIC and Consent Must Be an Ongoing Relationship.......................................................................................... .19 Result 6: There Are Debates Over the Legal and Normative Implications...........................................................................20 Result 7: UNDRIP Intersects with the Calls to Action of the TRC..........................................................................................20 STATE OF KNOWLEDGE.....................................................................................................................21 FURTHER RESEARCH........................................................................................................................ 23 ADDITIONAL RESOURCES & KNOWLEDGE MOBILIZATION.......................................................................... 24 CONCLUSION................................................................................................................................ 25 END NOTES.................................................................................................................................. 26 REFERENCES................................................................................................................................. 33 APPENDIX 1: ANNOTATED BIBLIOGRAPHY..............................................................................................43 Between Law and Action | 2 Key Messages 1. UNDRIP has both legal implications and normative power. It has existing normative weight and can be mobilized to set a minimum standard for Indigenous rights. UNDRIP can The UN Declaration on the Rights also be incorporated into domestic of Indigenous Peoples (UNDRIP) was legal frameworks in Canada and adopted in 2007. The Government applied by the courts. of Canada endorsed UNDRIP in 2016. This report assesses the 2. Water is only specifically mentioned implications of UNDRIP for fresh in UNDRIP twice, but references to water governance in Canada. Indigenous “lands, territories and resources” throughout the UNDRIP are interpreted to include water. 3. UNDRIP articulates powerful substantive and procedural norms with respect to the rights of Indigenous peoples that go beyond existing Canadian court decisions and state policy interpreting section 35(1) of the Canadian Constitution. 4. One of the major barriers to implementation of UNDRIP has been concern over the extent to which Free Prior and Informed Consent may be interpreted as a potential “veto” to resource development. Watershed co-governance may address this issue. 3 Executive Summary At the 15th Session of the United Nations Permanent peoples”. UNDRIP sets out minimum standards for the Forum on Indigenous Issues held in New York City in “survival, dignity and well-being” of Indigenous peoples May 2016, Indigenous and Northern Affairs Minister, by applying existing human rights standards to their Carolyn Bennett, officially endorsed the United Nations specific situation.4 Declaration on the Rights of Indigenous Peoples (UNDRIP)1. More recently, the federal government At the UN Assembly vote on UNDRIP, 144 states voted released its Principles respecting the Government of in favour, 11 abstained, and 4 (including Canada), voted Canada’s relationship with Indigenous Peoples, marking against. The Canadian government stated concerns a move to align federal policy with the provisions of about the incompatibility of certain aspects of UNDRIP UNDRIP. These announcements express the political with Canada’s legal and constitutional frameworks. will to begin implementation of UNDRIP, in light of In 2010, the federal government of Canada officially which many questions have been raised. As expressed endorsed UNDRIP, but emphasized its “aspirational” in the title of this report, “Between Law and Action: nature.5 In May 2016, the Federal Government removed Assessing the state of knowledge on the United Nations its objections and upgraded its level of commitment. Declaration on the Rights of Indigenous Peoples with Speaking at the UN Permanent Forum on Indigenous reference to fresh water resources”, the goal of this Issues, the then federal minister of Indigenous and report is to support debate on the implementation of Northern Affairs, the Honorable Carolyn Bennett, stated, UNDRIP with respect to fresh water issues, through “we are now a full supporter of the declaration, without providing a synthesis of existing research knowledge qualification. We intend nothing less than to adopt and identifying knowledge gaps. Our report accepts and implement the declaration in accordance with the premise that implementing UNDRIP provides the Canadian Constitution.”6 UNDRIP is not a legally an opportunity to explore and reconceptualize the binding instrument under international law, but it is relationship between international law, Canadian now established Canadian government policy and, if constitutional law and Indigenous legal orders.2 implemented through relevant legislative frameworks, will carry the weight of domestic law. This is particularly relevant to water issues, which are the focus of this report. Much of the literature has focused FREE, PRIOR AND INFORMED CONSENT on ongoing drinking water challenges in Indigenous The debate over UNDRIP in Canada has focused on the communities. Water insecurity—with associated topic of Free and Prior and Informed Consent (FPIC) and effects on health and wellbeing—affects hundreds of particularly its implications for resource development. Indigenous communities across Canada. There is also FPIC and related concepts appear in several UNDRIP growing recognition of the need to comprehensively articles7, which include: examine Indigenous relationships to water at a broader scale, and to address Indigenous water governance. Article 19. States shall consult and cooperate in good Simultaneously, UNDRIP implies substantial changes faith with the indigenous peoples concerned through in water-related decision-making, particularly, but not their own representative institutions in order to obtain limited to, natural resource development. This report their free and informed consent prior to the approval contributes to this debate through exploring the of any project affecting their lands or territories and implications of UNDRIP for fresh water governance in other resources, particularly in connection with the Canada. development, utilization or exploitation of mineral, water or other resources. CONTEXT Article 23: Indigenous peoples have the right to HISTORY OF UNDRIP determine and develop priorities and strategies for The United Nations General Assembly adopted the exercising their right to development. In particular, United Nations Declaration on the Rights of Indigenous indigenous peoples have the right to be actively Peoples (UNDRIP) on September 13th,
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