Respecting Indigenous land rights: Too good to be Trudeau?

Squamish Nation on their Tribal Canoe Journey. Photo: Kris Krug, flickr creative commons.

Squamish Nation on their Tribal Canoe Journey. Photo: Kris Krug, flickr creative commons.

This piece has been authored by Ben Donato-Woodger, member of the Canadian Youth Delegation and organizer with Toronto 350.

When the federal government promised to implement the UN Declaration on the Rights of Indigenous People (UNDRIP, ratified by the UN in 2007), I was skeptical. It’s positive. It’s symbolic. It’s not a victory yet.

I wrote my undergraduate thesis in rural Indonesia on the implementation of a REDD+ (Reducing Emissions from Deforestation and Forest Degradation), a UN programme that seeks to stop deforestation. In Indonesia, this means protecting forests on indigenous lands from the explosive growth of oil palm. Government officials said they had received the Free, Prior, and Informed Consent (FPIC) of Indigenous landholders. And yet, most people I interviewed seriously doubted the programme’s motives, did not understand what REDD+ was, and the government officers I interviewed who managed the programme viewed masyarakat (Indonesian for ‘society’ or ‘the people living there’) as a rambunctious rabble in need of guidance.

FPIC was part of the checklist of processes officials were obligated to undertake rather than an imperative to build meaningful relationships and accountability.

FPIC would be transformative. If enshrined in law, it would be non-negotiable and backed by courts. If fully realized, it would put indigenous sovereignty above corporations’ want for land. 

What is FPIC and why does it matter

UNDRIP is a historical, unprecedented document identifying the human right of indigenous peoples across the world. In particular, the Free, Prior, and Informed Consent clause in UNDRIP was a huge victory for the global indigenous rights movement. The UN’s Permanent Forum on Indigenous Issues gave this definition:

  • Free: people are ‘not coerced, pressured or intimidated
  • Prior: their consent is sought and freely given before governments authorize development
  • Informed: they have full information about what the development will be, and how it will impact their lands, resources and well-being
  • Consent: they can give or withhold consent at any time, and their decision will be respected and upheld

More than the Duty to Consult

In Canada, FPIC would replace the duty to consult and accommodate indigenous people, which has, in practice, been a longstanding practice of tokenistically asking Indigenous peoples for their permission on land use decisions -- and then ultimately ignoring it. In its place, FPIC would be a process that limits the government’s power over indigenous lands and safeguards indigenous communities’ right to say ‘no’ to projects they do not want. It asserts that indigenous peoples control the land they live on and near to, and that they must be informed before development happens.

No Reconciliation without FPIC

FPIC is so important that the Truth and Reconciliation Commission (TRC) singled it out in the final TRC calls to action as something Canada must do to make serious progress in repairing our relationship with indigenous peoples. Prime Minister Trudeau has framed reconciling a nation-to-nation relationship with indigenous peoples as a top priority. To do this, FPIC is non-negotiable. How can you trust a government whose only track record is stealing your land? While Trudeau's administration has started essential steps such as preparing to launch an inquiry into missing and murdered indigenous women and girls, the TRC has 93 other recommendations. Indeed, indigenous thought leaders like Lee Maracle argue that violence against the land creates and maintains violence against women, and that means these crises must be addressed together.

Did Trudeau just freeze tar sands expansion?

In theory, implementing FPIC would throw the future of tar sands expansion and oil pipelines into serious doubt. There is huge opposition to oil sands expansion in Treaty 6 and 8 territories and in the way of Energy East and Kinder Morgan. First Nations on the land of Treaty 3 have signed a declaration opposing the existing process TransCanada is using to ram through the assessment process for the Energy East pipeline, and has engaged in powerful actions such as their Water Walk to show their unity in protecting water. FPIC would make multi billion dollar projects incredibly risky investments. Those projects would be at the mercy of indigenous communities who have no reason to trust them given their track records.The National Energy Board, the body responsible for assessing the impacts of national energy projects, has ignored indigenous communities opposition to its past reviews. With FPIC, this should stop.

But the headlines, after the Trudeau government’s commitment to ratify UNDRIP were not about freezing tar sands expansion because the devil is in the implementation.

So why hasn’t FPIC stopped the global land grab?

Indonesia is a relevant case in point to the mere promises of FPIC being half the battle. Indonesia recognizes FPIC, but the Government has de facto claims over all of Indonesia’s forests and oil palm production is projected to double over 2010 levels by 2020. Industry in Indonesia either buys off specific people in communities, ignores consultation entirely, leaves communities to fight between local, regional, and national bureaucracies, or outmaneuvers communities in court. 

International examples show how FPIC can be thwarted in Canada. We need to learn from where FPIC is recognized but not practiced.

FPIC has implications that go deeper than fossil fuel extraction and include forest management. The UN’s REDD+ programme has huge problems with indigenous communities not being consulted.

How to implement FPIC while violating the spirit of FPIC

Controversies about REDD+ implementation and oil palm expansion show how companies and governments have made FPIC as inauthentic as corporate social responsibility. They do it by:

  • Forcing indigenous people to pay for expensive legal proceedings to prove FPIC violations -- For example, governments giving leases to corporations on indigenous lands without FPIC that force indigenous communities to challenge state leases in court
  • Giving communities false information -- promising jobs that do not appear, or downplaying environmental risks.
  • Recognizing specific leaders but not entire communities -- Where I did research, REDD+ received FPIC at a meeting only of people interested in REDD+. Had it gone to a community level vote, the decision to accept REDD+ would have been extremely contentious.
  • Exhausting communities by making them say ‘no’ many times after their first rejection -- In Indonesia, oil palm companies would make village leaders reject many similar but slightly modified proposals seemingly waiting for a community to tire enough that they would no longer resist development.

How do we avoid mistakes elsewhere?

Meaningfully implementing Free Prior and Informed Consent in Canada means learning from these failed implementations and ensuring they don’t get repeated. There need to be financial resources available for  indigenous peoples to challenge resource development that has occurred without FPIC so that these communities do not lose their lands because they lack the funds to resist development. There must be controls on how much money oil companies can use to sway communities. Communities should not be put under the strain of having to reject the same project many times over. FPIC should give communities the power to reject existing developments they never consented to. Fundamentally, the system must honour and not muffle refusal. 

Justin Trudeau has made huge promises by saying he will implement UNDRIP and the accompanying right to Free, Prior, and Informed Consent. But similar promises have empowered but not secured indigenous land title abroad. Canada will likely have an improved consultation process that will give indigenous communities and the climate movement more opportunities to challenge the fossil fuel industry. The fossil fuel industry has enough power and plans to manipulate the process. Promising FPIC is a good start. But reconciliation is going to be hard because it can only happen if the state and corporations are forced to limit their power.

We aren’t out of the woods yet. But if we actually implement FPIC, we might just find a path.