Five years ago, the Ontario Bar Association’s (the “OBA”) Aboriginal Law Section held a program titled: “Practical Perspectives on Hot Topics, Emerging Issues & Game Changing Cases” and since then, the practice of Aboriginal law has changed dramatically. To bring fellow members, non-members and students up to speed, the OBA Aboriginal Law Section hosted an updated version of this program (the “Program”) during the OBA’s 2020 Institute.
This timely Program, held on February 7, 2020, was chaired by William Taggart from Fogler, Rubinoff LLP and was intended to be be a practical primer on a variety of topics in the Aboriginal law space. Those who attended had the pleasure of learning from experienced practitioners and scholars who provided a practical guide to incorporating the principles of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and Free Prior and Informed Consent (“FPIC”) into practice, who reviewed and analyzed the big Aboriginal law cases from the last few years, and who engaged in a cutting-edge discussion of First Nation law and by-law making powers.
UNDRIP AND FPIC – PRACTICAL APPLICATIONS
Panel: Michael Fortier (Torys LLP), Shin Imai (Professor Emeritus, Osgoode Hall Law School, York University), and Jesse McCormick (Director of Rights Implementation, Office of the Minister of Justice and Attorney General of Canada)
As background, UNDRIP (including the right of Indigenous peoples to FPIC) was adopted by the United Nations in 2007. It was intended to enshrine the basic human rights of Indigenous peoples around the world. Initially, Canada voted against its adoption but endorsed it in 2010. The Supreme Court of Canada (the “Court”) has stated on numerous occasions that both federal and provincial governments have a duty to consult Indigenous peoples when they consider conduct that might adversely affect potential or established Indigenous rights. However, the duty to consult continues to fall short of FPIC. Earlier this year, British Columbia became the first province in Canada to implement UNDRIP into domestic law. The rest of Canada has yet to follow suit – but we learned during this panel that Ontario is slated to have UNDRIP legislation by the end of 2020.
The panel discussed practical considerations for lawyers and corporations interested in using the principals of UNDRIP in their work with Indigenous communities. Two major considerations were discussed. This first consideration is understanding which persons should be consulted. The panel agreed that this should be considered in accordance with the customs and traditions of the specific community. However, it was pointed out that this could also pose a challenge because customs and traditions are dynamic and change over time. To remedy this, it was suggested that it would be best to consult with all members of the community. The second consideration is knowing when to consult. The panel agreed that consultation will likely be more productive for all parties if communities are consulted at the very beginning of a project.