Free, prior & informed consent and the future of Inuit self-determination

Natan Obed

Natan Obed

Natan Obed

 

This article describes how the right of free, prior and informed consent (FPIC) relates to the work Inuit Tapiriit Kanatami (ITK) carries out as the national representative organization for Inuit in Canada. I outline how the right of Inuit to FPIC applies to the Canadian Inuit political context and discuss the ways this policy approach influences our Inuit-to-Crown relationship. I argue that the application of FPIC through implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration or Declaration) is necessary to create a more collaborative, consent-based relationship between Inuit and governments. I explain how FPIC is an important safeguard and tool for Inuit because it obligates governments to engage us on issues that affect our communities and homelands, and affirms our inherent right to self-determination.

Inuit communities face a range of social and economic challenges, including high suicide rates, little access to justice, and gaps in health outcomes. The right to FPIC aligns with what Inuit have been telling governments for decades: To seriously address the inequity at the root of these and other issues requires early engagement and collaboration between Inuit and government representatives on the policies, programs and projects that affect us and our lands, territories, and resources.

Policy-Making and Inuit Self-Determination

The majority of the 60,000 Inuit in Canada live in 53 communities spread across Inuit Nunangat, the Inuit homeland that includes Nunatsiavut (Labrador), Nunavik (Northern Quebec), Nunavut, and the Inuvialuit Settlement Region (NWT). Inuit Nunangat constitutes 35 percent of Canada’s landmass and 50 percent of its coastline. Each of these regions has negotiated comprehensive land claims agreements that have the status of protected treaties under section 35 of the Constitution. Our treaties create the governance space and framework for all of our ongoing interactions with the federal, provincial, and territorial governments.

ITK was founded in 1971 to act as the national political voice of Inuit in Canada. At that time, natural resource extraction projects such as the proposed Mackenzie Valley pipeline in the NWT and the James Bay Project in Nunavik were proceeding with little consideration for Inuit who lived on lands and territories that we have used and occupied since time immemorial. Land claims were a turning point for Inuit in our struggle for cultural and political self-determination. Today ITK works to improve the health and wellbeing of Inuit through research, advocacy, and public outreach and education on the common issues affecting us.

The Government of Canada’s unilateral approach to decision making about the exploitation of Inuit Nunangat’s economic resources was the impetus for Inuit land claims. This unilateral approach characterized all past policy decisions affecting our homelands and people, perhaps the most infamous examples being the imposition of residential schooling, the numerous, forced relocations of Inuit, and the government coercion of Inuit families to settle in permanent communities. These policy decisions were racially motivated; Inuit were presumed to be racially inferior and thus incapable of making decisions about our lives and those of our children.

Unfortunately, policymaking in Canada has routinely been afflicted by a policy approach and attitude toward Inuit that ignores our inherent human right to self-determination. The persistence of this approach has created setbacks in our ability as Inuit to tackle complex social and economic challenges that require community-level input and solutions. There is a practical, mutual benefit to Inuit and governments when we directly engage and collaborate with each other to ensure that our experience and perspective are reflected in policies, programs and interventions targeting our communities and territories.

From Consultation to Consent

Inuit and other Indigenous Peoples insist on playing a more participatory role in the design of policies, programs and projects that have the potential to impact our families, communities and homelands. We recognize the right of FPIC as a necessary facet of effective policymaking because it replaces the unilateral approach to decision making with a more inclusive process that begins and ends with consent. It also moves us away from a consultations-based approach to policymaking, which rests on an inherently asymmetrical and uneven power dynamic.

FPIC is most commonly evoked in the context of resource development and environmental protection. However, ITK interprets FPIC more broadly to include all policies, programs and projects that have the potential to affect our communities. The right to FPIC refers to the right of Indigenous Peoples to give or withhold our free, prior and informed consent to proposed measures that will affect us. The UN Declaration1 affirms Indigenous Peoples’ right to FPIC in a wide range of situations. States’ obligations to obtain FPIC are described most broadly in Article 19 of the Declaration, which states the following:

States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.2

At the national level, Canada has a constitutional duty to consult Indigenous Canadians and, where appropriate, accommodate Indigenous Peoples when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.3 However Canada’s constitutional duty to consult has its limits and does not get us to where we need to be. In the following paragraphs, I will highlight policy examples that illustrate FPIC’s function in our unique political environment.

Nutrition North Canada

Nutrition North Canada (NNC) is an example of a recent federal program targeting Inuit that was developed and implemented unilaterally by government. It reflects the pressing need for governments to respect our right to self-determination by obtaining our consent prior to proceeding with policies, programs and projects that affect our communities, and underscores how a collaborative policymaking process could benefit Inuit and government.

NNC was launched by Aboriginal Affairs and Northern Development Canada (AANDC) in April 2011 in order to improve access to healthy, nutritious foods. In a shift from the preceding Food Mail program which subsidized transportation costs directly, NNC directs its subsidy to retailers who are expected to pass this subsidy on to consumers.The program’s budget in 2015-2016 was $68.5 million, the majority of which is allocated in Inuit Nunangat, making it the second largest social program overseen by the federal government in the North after housing.4 NNC, in its subsidization of certain “healthy” foods, exerts significant influence over Inuit lives, especially in the context of limited shopping options, widespread poverty, and in some regions, up to 70 percent food insecurity.5

NNC has been criticized by Inuit organizations and others who do not perceive that the program meaningfully improves access to healthy, nutritious foods. In 2014 the Auditor General of Canada carried out a performance audit of NNC and determined that AANDC had not required retailers to provide data on profit margins, meaning that AANDC could not verify whether the program’s annual $53.9 million subsidy had been fully passed on to consumers by northern retailers.6 The Auditor General concluded in his report that “Aboriginal Affairs and Northern Development Canada has not managed the Program to meet its objectives of making healthy foods more accessible to residents of isolated northern communities.”7 The Department agreed with the Auditor General’s finding and sought to carry out his recommendations.

The NNC program was designed by AANDC without participation from ITK or regional Inuit organizations, despite Inuit making up the majority of the consumers using the program. Nor were Inuit organizations invited to help make determinations about which food items would be subsidized by the program. Far from seeking the free, prior and informed consent of Inuit, NNC was unilaterally imposed on northern communities by AANDC. In doing so, AANDC marginalized Inuit, exacerbated public distrust of government, and missed an opportunity to craft an effective policy solution to a serious and ongoing challenge. The current government’s efforts to salvage the program delay the implementation of solutions that make healthy, nutritious foods more accessible to Inuit.

If the right of Inuit to FPIC had been recognized and respected from the outset, these issues could likely have been avoided. AANDC could have partnered with ITK and regional Inuit organizations in crafting a policy solution informed by the needs, experiences, and preferences of Inuit. Doing so would have helped facilitate public support for the program and helped ensure that it achieved its intended purpose. Just as importantly, the program would have been developed with the free, prior and informed consent of Inuit through a process that affirms our right to self-determination. Again, both Inuit and government benefit when we work together in equal partnership.

First Nations and Inuit Health Branch

Health Canada’s First Nations and Inuit Health Branch (FNIHB) has collaborated with ITK in ways that reflect the type of collaborative, consent-based partnerships that FPIC is intended to forge between governments and Indigenous communities. FNIHB is the federal department responsible for the delivery of public health and health promotion services on-reserve and in Inuit communities.

In 2015, FNIHB collaborated with ITK to develop the 2015-2017 Inuit Health Approach. The Inuit Health Approach scaffolds the working relationship between FNIHB and ITK onto the Inuit health priorities identified by the National Inuit Committee on Health. It is implemented through a work plan that FNIHB developed in cooperation with ITK. Inuit Health Approach priorities include mental wellness, Inuit health research, Inuit engagement in community-based programs, and the development of an Inuit Champion role within FNIHB that serves as an internal advocate for Inuit within the department. FNIHB and ITK set up an Inuit Sub-Committee that helps ensure progress on the work plan by creating a forum for Inuit and FNIHB senior executives to share information, provide policy guidance, and advance the Inuit health policy agenda.

Implementing FPIC was not an explicit priority for government or ITK in crafting the Inuit Health Approach. However, the manner in which FNIHB engages with Inuit reflects the type of early, collaborative, consent-based policy approach that FPIC is intended to facilitate between Indigenous Peoples and governments. In contrast to the unilateral policy approach characterizing NNC, Inuit play a central role in setting FNIHB’s policy agenda.

In addition to the Inuit Health Approach, Inuit have shaped the policy agenda by participating in FNIHB’s 2012 First Nations and Inuit Health Strategic Plan. FNIHB requested ITK’s input into its Strategic Plan in order to ensure that Inuit-specific language and priorities are reflected in the document. As a result, FNIHB is in a better position to serve the needs of Inuit and to be impactful in the work it carries out.

ITK’s involvement in the hiring process that identified FNIHB’s Inuit Champion further reflects the ways FNIHB has forged collaborative, consent-based partnerships with Inuit. ITK, along with the chair of the National Inuit Committee on Health, formed part of the hiring committee that was responsible for drafting the Inuit Champion job description, took part in reviewing applications, and interviewed and ultimately identified the strongest applicant for the assignment. FNIHB’s Inuit Champion assignment is responsible for improving awareness and consideration across FNIHB of the Inuit Health Approach, and its foundational documents. The Inuit Champion also advocates within government to ensure that Inuit health priorities are kept distinct from First Nations health priorities. This is an important role given our work to ensure that health policies, programs, and interventions reflect our distinct culture and population.

Looking Forward

In 2010 the Harper government endorsed the UN Declaration but voiced concerns about FPIC “when used as a veto.” It cited the same concerns in 2014 following the UN General Assembly’s adoption of the World Conference on Indigenous Peoples Outcome Document, stating: “Free, prior and informed consent…could be interpreted as providing a veto to Aboriginal groups and in that regard, cannot be reconciled with Canadian law, as it exists.”8 However, the term “veto” is not mentioned in the Declaration. The Harper government refused to discuss this issue with Indigenous Peoples in Canada and failed to substantiate its position. The government only supported free, prior and informed “consultation.” This was concerning because our experience has shown us that consultations tend to have predetermined outcomes, are rarely collaborative in nature, and by their very orientation situate final decision-making power with non-Indigenous governments. This is not self-determination.

The duty of States to obtain Indigenous Peoples’ FPIC entitles Indigenous Peoples to effectively determine the outcome of decision making that affects us and is not merely a right to be involved in such processes.9 The newly-elected Trudeau government has stated its intent to fully implement the UN Declaration, as a priority. With regards to FPIC, Indigenous and Northern Affairs Minister Carolyn Bennett has stated, “We are committed to sitting down early [with Indigenous Peoples], at the earliest possible moment, on every single thing that will affect Indigenous people in Canada.”10

Furthermore, Trudeau has promised full federal action on implementing the Truth and Reconciliation Commission’s 94 Calls to Action. Significantly, the Calls to Action identify the need for Canada’s corporate sector to adopt the UN Declaration as a reconciliation framework and to commit to obtaining the consent of Indigenous Peoples before proceeding with development projects. The Calls to Action also highlight the need for federal Aboriginal education legislation developed with the full participation and informed consent of Indigenous Peoples. We are hopeful that these encouraging gestures are part of a larger paradigm shift in governance that places early engagement, cooperation and the consent of Indigenous Peoples, at its centre.

For decades, ITK has stressed the practical, mutual benefits of a more collaborative relationship between Inuit and governments. We are cautiously optimistic that this message appears to be sinking in. It is necessary for Canada to implement FPIC in all of its dimensions in order to move us beyond the top-down, consultations-based approach to policymaking that has defined our relationship to governments for so long. We must move toward a more collaborative Inuit-to-Crown relationship that is premised on our right to give or withhold consent on all policies, programs and projects that affect our communities.

Inuit are a founding people of Canada, and as proud Canadians we believe in the democratic principles of this country. It is high time that those principles are reflected in the actions of government. Canada’s implementation of the UN Declaration and FPIC are both a litmus test and starting point for a renewed relationship based on the recognition of, and respect for, all of our human rights.


 

Natan Obed is the President of Inuit Tapiriit Kanatami, the national organization representing Canada’s 60,000 Inuit. He was elected to a three-year term as President in September 2015. Natan is originally from Nain, Nunatsiavut, and currently lives in Ottawa. For 10 years, he served as the Director of Social and Cultural Development for Nunavut Tunngavik Inc., which represents the rights of Nunavut Inuit. Natan has devoted his entire professional career to working with Inuit representational organizations to improve the wellbeing of Inuit in Canada.

Endnotes

  1. United Nations, United Nations Declaration on the Rights of Indigenous Peoples (September 13, 2007), 4, accessed February 29, 2016, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
  2. United Nations, United Nations Declaration on the Rights of Indigenous Peoples (September 13, 2007), 8, accessed February 29, 2016, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
  3. Government of Canada, Aboriginal Consultation and Accomodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (Minister of the Department of Aboriginal Affairs and Northern Development Canada, 2011), 1.
  4. Government of Canada, How Nutrition North Canada works, accessed March 30, 2016, http://www.nutritionnorthcanada.gc.ca/eng/1415538638170/1415538670874.
  5. Grace M. Egeland, Inuit Health Survey 2007–2008: Nunavut (Ste-Anne-de-Bellevue, QC: Centre for Indigenous Peoples’ Nutrition and Environment, May 2010), 11–12.
  6. Office of the Auditor General of Canada, Nutrition North Canada–Aboriginal Affairs and Northern Development Canada (Ottawa, ON: Fall 2014), 5, accessed May 17, 2015, http://www.oag-bvg.gc.ca/internet/docs/parl_oag_201411_06_e.pdf.
  7. Office of the Auditor General of Canada, Nutrition North Canada–Aboriginal Affairs and Northern Development Canada (Ottawa, ON: Fall 2014), 15, accessed May 17, 2015, http://www.oag-bvg.gc.ca/internet/docs/parl_oag_201411_06_e.pdf.
  8. Government of Canada, Canada’s Statement on the World Conference on Indigenous Peoples Outcome Document, September 22, 2014, accessed February 27, 2016, http://www.canadainternational.gc.ca/prmny-mponu/canada_un-canada_onu/statements-declarations/other-autres/2014-09-22_wcipd-padd.aspx?lang=eng.
  9. Office of the High Commission for Human Rights, Final study on Indigenous Peoples and the right to participate in decision-making (July 2011), 20, accessed April 24, 2015, http://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/AEVfinalreportStudyIPRightParticipate.pdf.
  10. Joanna Smith, “Canada will implement UN Declaration on the Rights of Indigenous Peoples, Carolyn Bennett says,” The Star, November 12, 2015, accessed February 27, 2016, http://www.thestar.com/news/canada/2015/11/12/canada-will-implement-un-declaration-on-rights-of-Indigenous-peoples-carolyn-bennett-says.html.

Download this article


Open Access

As part of our commitment to fostering public dialogue, Northern Public Affairs is pleased to make its archive of articles, interviews, and commentary available free to readers. Back issues are available below.