Course:CONS370/Projects/Impact and Implications: A Comparison of the Adoption of UNDRIP in the Democratic Republic of the Congo, Central Africa, and British Columbia, Canada

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Implementing UNDRIP is not the only reconciliatory force at play in Canada, as Aboriginal history celebrations also take place across Canada

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was, by a strong majority, 144 states in favour, 4 against, and 11 abstentions, adopted by the General Assembly of the United Nations (UN) on September 13, 2007[1]. The Declaration was lauded as a major stepping stone in the continued efforts of the international community in furthering the rights of Indigenous Peoples. UNDRIP serves as a universal framework on the minimum standards with respect to the fulfilment of the rights of Indigenous Peoples. UNDRIP has 46 articles in total, each elucidating on the various duties that are expected of each signatory member state. The Declaration serves as a catalyst for Indigenous Peoples and member states of the United Nations to work collaboratively in addressing past and present suffering from the effects of violent colonialism and post-colonialism. UNDRIP is a declaration, not a convention, meaning that UNDRIP is a non-legally-binding commitment[2]. However, declarations are gradually being invoked more by Indigenous Peoples and advocacy groups as the concepts and articles of declarations are becoming international norms or standards that are more readily accepted and expected to be applied in all states[2]. Below, the relationship between UNDRIP and its impacts are examined in the rights of Indigenous communities in British Columbia, Canada, and the Democratic Republic of the Congo in Central Africa.

Description

Democratic Republic of Congo

The Congo Forest of Central Africa is one of the most biodiverse forests in the world with more than 11,000 species of plants and animals[3].This makes it very important to protect. However, after decades of civil war, the Democratic Republic of Congo (DRC) is recovering but with weak state structures[4]. With the forest being as large of a carbon store as it is, it also provides a main employment opportunity through illegal logging[4]. This makes the forest central to everyday life, but also in need of more formal management. Pygmies or Baka, or Congolese Indigenous Peoples, are dependent on the forest, which is being illegally logged through government-issued licenses to private companies[5]. Additionally, the Baka are systematically disadvantaged in the implementation of their rights, and are constantly discriminated against[5]. The DRC signed onto UNDRIP in 2007, yet the rights of the Pygmies have barely advanced due to unenforced legislation and a lack of recognition for their management capabilities[5]. If we are to assume that the DRC is the “worst-case scenario” following implementation of UNDRIP, then it serves as a useful comparison to see whether British Columbia (B.C.) will follow the same path of human rights violations.

British Columbia, Canada

Following a long history of colonialism and genocide[6], in 2019, B.C. became the first province of Canada to incorporate UNDRIP into its provincial mandate and laws to ensure that B.C. would be operating harmoniously with UNDRIP. Bill 41, now Declaration on the Rights of Indigenous Peoples Act (DRIPA), passed unanimously through the legislative assembly in Victoria. It was hailed as a landslide victory for not only the province, but for Indigenous Peoples. However, given the “impractically broad language” of DRIPA,[7] contentious debates have been raised by legal scholars and lawyers alike on the compatibility of DRIPA with Canada. Given that DRIPA is still in its infancy stage, it continues to be uncertain whether or not DRIPA will be the pivotal stepping stone that the province and Indigenous Peoples intended.  

Tenure Arrangements

According to the Food and Agriculture Organization (FAO), land tenure is the relationship among people with respect to land that can be customarily or legally defined[8]. Essentially, land tenure systems are what determines which resources are used, and by whom for a specific period of time under certain conditions.

Types of Tenure

British Columbia, Canada

In British Columbia there are six (6) common ways that Crown land is made available[9]:

  • Community Forest Agreements (25-99 years) - An area-based forest license, where a group or combination of groups manage the forest for the benefit of the entire community.
  • First Nations Woodland Licence - Long term, area based license for asserting and protecting Indigenous interests.
  • Forest Licenses (replaceable and non-replaceable) (=/<20 years) - Gives the right to harvest a set volume of timber within a certain area. Overlapping licenses are common.
  • Free use permit - forestry - Gives the right to harvest small volumes of timber for personal use.
  • License to cut (=/<5 years) - Non-replaceable tenure that gives harvesting rights in a specific area for a short time. Not intended to be ongoing.
  • Special Use Permit - forestry - Non-exclusive authority to occupy and use an area of Crown land. Rent and taxes are paid annually.

A large volume of timber is annually auctioned through BC Timber Sales, a State corporation. In addition large forest companies hold the majority of timber harvesting rights by area under the Crown[10]. and Indigenous companies hold rights to a smaller forest area. ~95% of the province’s forest resources are publicly owned[10].

Tanizul Timber Ltd

In the Stuart Nechako Natural Resource District, Tanizul Timber Ltd is one of two major licensees[11]. They operate under a Community Forest Agreement (K4B), and are a holder of a First Nations Woodland License as well (N2O)[12]. Tanizul Timber Ltd is owned and controlled by the Tl’azt’en people, who manage the ongoing licenses[12]. Of all the First Nations Woodland Licenses, Tanizul Timber Ltd has the highest AAC (annual allowable cut) at 80,000 m3, and the second largest area at 33,297 Ha[13].

Both main tenures that they operate under are area based and replaceable. The Community Forest Agreement operates with stumpage being 15% of average stumpage rates[12], but gives them exclusive rights to harvest for 25-99 years, and allows them to renew every 10 years. The responsibilities of Tanizul Timber Ltd under their Community Forest Agreement includes submitting and implementing management plans meeting the requirements of the agreement, and carrying out audits and reports about their performance under the agreement[14].

Under their First Nations Woodland License, while full stumpage must be paid, 85% of it can be returned if a Forest Consultation and Revenue Sharing Agreement (FCRSA) is in place[12]. Similar to a Community Forest Agreement, the responsibilities include the submission and implementation of management plans to the minister responsible for forests. however the annual rent is very low[15].

Democratic Republic of Congo

In the DRC, there are two (2) types of forest harvesting concessions[16]:

  • Simple felling permits
  • Large-scale industrial logging permits

These permits are constrained by allowable annual cut limits, and are required for every product in the forest, including non-timber or minor forest products. Permits can be issued to the extent that the forest can handle, as decided by the state[16].

There are three major use categories in classifying forests[3]:

  • Classified Forests- Integral nature reserves and protected areas, with user and exploitation rights.
  • Protected Forests- Less restrictive legal control, seen in farming reserves, forests under concession contract and community forests.
  • Permanent Production Forests- It is required to have a commitment to sustainable management plans in these for allocated concessions and unallocated concessions. This is the most common type.
Tenure Arrangements in Practice

Despite what seems to be reasonable legislation, the reality of tenure in practice is not free from corruption. There exists many loopholes, and while policy is drafted, it is not always implemented or enforced[3]. In fact, the corruption reached a point where the citizens called for a review of every concession[17]. This independent review led to a cancellation of 91 concessions [17], showing just how many concessions were unscrupulous and illegal. However, worldwide pressure has set a new precedent, leading to government enforcement of policy as well as policy reform[3]. This is useful, as while the 2002 Forest Code recognizes use rights, it does not explicitly acknowledge use rights for managing community forests[17]. In fact, it has recently signed onto REDD+ activities[3], with a focus on forest-dependent local communities participating in the development and implementation of REDD+ projects. REDD+ is understood as "countries' efforts to reduce emissions from deforestation and forest degradation, and foster conservation, sustainable management of forests, and enhancement of forest carbon stocks'[18]. REDD+ activities show the DRC's changing commitment to sustainable use.

Relevant Legislation

British Columbia

Forest Act [19]

This act provides organization for the systems of tenure in BC. It sets out the regulations for selling Crown timber, the rights and obligations of each tenure agreement, and rules about administration of tenures.

Forest and Range Practices Act (FRPA - 2004)[19]

This act sets the requirements for “planning, road building, logging, reforestation, and grazing activities”.

Other Acts [19]

Other acts which affect timber harvesting are the Fisheries Act, the Water Act, the Water Sustainability Act, the Wildlife Act, Wildfire Act, and the Species at Risk Act.

Democratic Republic of Congo

Bakajika Law of 1967 [4]

This law provides ‘full ownership rights of the State over its domain and full sovereignty in conceding rights to land up to 20 square kilometres, forests and mines through the extent of its territory’[4].

1973 Land Tenure Law [4] (not fully adopted)

Allowed for customary ownership in non-allocated rural forest and relaxed the previous law by making room for some types of permanent private concession.

Forest Code No 011/2002 [3]

This legislation aimed to restore State control over the sector of forestry. It was meant to further the rights of local peoples as well as mandate better forest control.

Administrative Arrangements

British Columbia, Canada

Forest Management Practices

In order to create sustainable management and use of Crown forest land, many policies are put into place by the BC government in order to ensure that “public lands provide a mix of benefits such as timber, recreational opportunities, water quality, wildlife habitat, and countless other values”[20]. The legislation that is most prominent includes the Forest and Range Practices Act (FRPA) and the Forest Planning and Practices Regulation (FPPR)[21]. These acts outline the following:

  • The Forest and Range Practices Act (FRPA) - This regulates all resource-based practices and forest and range activities that are conducted on Crown Forest land (FSP), while also guaranteeing a degree of protection for plants, animals, and ecosystems on the land[22].
  • The Forest Planning and Practices Regulation (FPPR) - This describes the content necessary to create a forest stewardship plan, and regulates requirements for forest practices such as use of livestock, seed, or modification of insect behaviour[23].

Along with these acts, the government of BC also requires a forest stewardship plan which has a renewable term of 5 years[21]. These plans describe potential development activities on the forest and must be approved before forest usage can begin[21]. Any affected First Nations group in the area must also be consulted, and the plan must be made publicly available for review so that all stakeholders may comment on it[21].

Treaties

In 1871, when British Columbia joined Canada, Indigenous Title was not recognized - leading to an absence of treaty negotiation. The only recognized rights were those written into the Canadian Constitution in 1982. However, in 1850 and 1854, James Douglas made 14 purchases of Indigenous land, now known as the Douglas Treaties. Going forward, the government of BC signed Treaty 8 in 1899, releasing Indigenous Title in exchange for territory. After a century of ignoring Aboriginal territorial rights, the first modern day treaty - the Nisga’a treaty - was implemented in 2000. Following this, a framework as well as precedent was set, leading to the creation of the modern six-stage BC treaty process, and the BC Treaty Commission that oversees the process of treaty-making today[24].

The value of treaties lies in overcoming the Indian Act imposed disadvantages. For instance, eligibility criteria will be expanded to include more Indigenous Peoples, and all Indigenous peoples of a nation may vote on a treaty, giving them choice instead of simply imposing rules on them. Treaties are meant to balance the interests of Indigenous and non-Indigenous residents of Canada[25]. Many BC First Nations reject the modern-day treaty process.

Democratic Republic of Congo

Forest Management Practices

There are two important forest management policies: The Priority Agenda for Relaunching the Forest Sector (2002), and the Forest Code (2002). The policies are meant to:

Priority Agenda for Relaunching the Forest Sector (2002) - As mentioned earlier, this was related to the legal independent review of logging allocations, and was meant as a corrective framework and enforcement of existing measures[4].

Forest Code (2002) - This is the most prominent legislation for forest regulation in the DRC. It calls to improve “competitiveness within forest industries, increase forest revenues, and improve the forest sector’s contribution to DRC’s socioeconomic development”[3]. In this way companies were meant to use profits to support local development, with national and provincial councils being instated to prevent secrecy and exploitation[3]. Unfortunately, the 2002 Forest Code has loopholes, such as using an artisanal permit to clear-cut the forest[3]. It was meant to give the ability to acquire customary rights through concessions for community-based management as well as give use rights stemming from local customs and traditions so long as they do not conflict with other legislation[4]. However, a major flaw lies in that it does not provide any sort of consequences for violating it, and only 11/40 decrees have been actually adopted[4].

Overlapping Interests

Despite regulation in the forestry sector, there are several non-forest actors in overlapping areas with different intentions[26]. For instance, the tourism industry may cause higher traffic and litter, or the mining industry may determine the land to have significant mineral deposits. With diverse activities and permits, overlapping claims have the potential to occur and lead to great confusion, where the rights of locals may get lost in the face of conflict among industry players. In the DRC, this may be closely linked to the non-enforcement of laws that would put a stop to legal, but economically beneficial activities[17].

Affected Stakeholders and Assessment

Affected Stakeholders British Columbia Power Congo Power
Indigenous Peoples
  • Indigenous Peoples may face protracted, costly, and even endless litigation to seek clarity on DRIPA[27].
  • While Indigenous groups have come a long way since residential schools, uncertainties (eg. FPIC) and events unfolding (eg. continued expansion of the Trans Mountain pipeline) could result in the creation of new modes of operation or precedent(s) that does not fall in favour of Indigenous Peoples[28].
  • With legal scholars claiming incompatibility of DRIPA with Canadian jurisprudence, we could potentially see precedents from the courts that negatively impacts Indigenous communities
  • Although, even if DRIPA were to take a negative turn, Indigenous Peoples have a safety net where they have constitutionally entrenched protection that they can fall back on
Weak
  • In Congo, violence against Indigenous women are frequent as well as violence against Indigenous Peoples in general[5]
  • Traditional knowledge of Indigenous Peoples are frequently taken advantage of
    • Via torture, burning down of villages, or persecutions[5]
  • UNDRIP has not provided much additional safeguard or protection to Indigenous Peoples of Congo
    • Congolese government frequently violates the terms[5]
    • No real protection for Indigenous Peoples in terms of their rights
Very Weak
Government
  • The government may be faced with protracted litigation with Indigenous and advocacy groups seeking clarity from the courts on the language of DRIPA.
  • In s. 3 of DRIPA, the B.C. government pledged that it would "take all measures necessary to ensure the laws of B.C. are consistent with the Declaration"[29].
    • With so much uncertainty, it appears that the B.C. government, by using the language in s. 3, may have set itself up for "failure and legal challenges"[30] as it seems unlikely that the government will be able to achieve its intentions of meaningful reconciliation
  • The government does not act unilaterally. There is a diffusion of power between the legislature, judiciary, and executive. There are checks-and-balances of power
Strong
  • Despite having ratified UNDRIP, the Congolese government tends to violate terms of the articles
    • Refusal to provide Indigenous Peoples with identity card[5]
      • Makes it difficult for these groups to mount title or legal challenges against the government[5]
      • This is a direct contravention of Articles 5 and 6 of UNDRIP - making it more difficult for Indigenous Peoples to access government services[5]
  • Lack of FPIC, if at all
    • Consultation with the Indigenous Pygmies group is often disregarded
    • Government acts unilaterally[5]
  • We are seeing international norms and precedent taking root
    • This has changed the direction of the Congolese government[5]
    • Government is reforming policies and more readily willing to enforce policies[5]
Very Strong
Businesses
  • At present, it does not appear that businesses who have invested in B.C. will be greatly affected as many companies (eg. forestry) that are operating in the province have already been carrying out their due diligence and working in alignment with UNDRIP[31].
  • Lack of brevity on the future implications of DRIPA could lead to uncertainties in business operations.
  • UN-associated group have advocated that Canada ought to abandon three major resource projects given they are contraventions to the spirit of FPIC[27].
    • Not clear whether this would be the beginning where DRIPA may have negative impacts on business operations
Strong
  • Land concessions have numerous loopholes in them[3]
    • Corporations tend to take advantage of such to engage in corrupt and illegal activities[17]
    • Led to communities in Congo calling for complete review of concessions
      • Resulted in the cancellation of 91 licenses[17]
Weak

Interested Outside Stakeholders

The United Nations

The primary objective of the UN is to ensure that all signatory states are judiciously carrying out the articles of UNDRIP. While UNDRIP is only a declaration, meaning that it has no force in law, declarations are gaining more traction and power[2]. As declarations are gradually evolving into norms and international standards that are expected of the international community, we are seeing Indigenous groups, such as those in Canada, referring to UNDRIP to mount challenges[2].

Advocacy Groups

How UNDRIP is incorporated and whether or not states honour them will dictate the power of advocacy groups. As such, advocacy groups are interested in seeing how these declarations progress and evolve. Indigenous Peoples in Canada, compared to groups in DRC, have more power to a degree as Indigenous Peoples in Canada have constitutionally entrenched protection pursuant to s.35 of the Canadian Constitution. Therefore, s.35 already seems relatively in harmony with UNDRIP, giving advocacy groups more wiggle room. In contrast, in DRC, the Congolese government frequently disregards the articles embedded in UNDRIP despite being a signatory state that ratified UNDRIP[5]. Unlike Indigenous groups in Canada, those in DRC do not have much safeguard against violence and encroachment of their rights. As such, advocacy groups do not have much to appeal to in order to efficaciously defend Indigenous groups in DRC.

Discussion

Incorporation of UNDRIP in the DRC

Meaning of "free", "prior", "informed", and "consent", respectively

While the DRC voted in favour of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 and has ratified the ILO Convention No. 169, these are largely violated, seen in their “initiation of and response to land rights violations, the absence of FPIC, violence against Indigenous women, and in discrimination towards Indigenous Peoples”[5]. There are often violations of Free, Prior, and Informed Consent (FPIC)[32] as consultations with Congolese Indigenous Peoples (Pygmies) are often ignored, and the traditional knowledge of the Pygmies is taken advantage of. This information may be extracted through torture and burning of communities, as well as general persecution thus endangering the forest due to a lack of management and the danger to Pygmy identity[5]. The word Pygmy has derogatory origins, but reclamation is in progress. Yet, the government will often not provide Pygmies with national identity cards and birth registration, making their claims to citizenship weaker[5]. This directly violates UNDRIP articles 5 & 6 and makes it harder to access government services making it harder to find jobs. This ultimately causes financial instability and creates a cycle where the younger generation continues to be discriminated against[5].

By looking at the DRC's failures in implementing UNDRIP, it is possible to see that the rights of Aboriginal Peoples of British Columbia are safeguarded in constitutional and other legal protections and in practice. Therefore, the relatively new implementation of UNDRIP through DRIPA is an important start although still contentious.

Incorporation of UNDRIP in British Columbia

Concerns

Bitter debates have been raised on compatibility of UNDRIP’s FPIC. Robin Junger, Co-Chair of McMillan LLP’s Aboriginal and Environmental Law Group operating in McMillan’s Vancouver office argues that “if I were a First Nation negotiating anything related to this [FPIC], I would believe consent means consent and no means no”.[7] Kevin O’Callaghan, partner and leader of Fasken’s Indigenous Law Group, states that there continues to be uncertainties that have led to worries from stakeholders.[7] It continues to be unknown whether or not the incorporation of UNDRIP into B.C’s mandate and laws would require greater stringency and standards when fulfilling the duties of FPIC beyond what has been proposed by the Supreme Court of Canada (SCC) and section 35 of the Canadian Constitution. While some, including the B.C. government, appear to perceive that the mere combination of duty to consult along with requirements that consent be present shall suffice, others, such as some Indigenous Peoples, expect that consent will be a "requirement on all projects"[7] occurring on the traditional lands of Indigenous Peoples per DRIPA’s language[7]. DRIPA, as argued by some groups, was a landslide victory for Indigenous Peoples and serves as a pivotal step towards greater recognition and respect for Indigenous Peoples’ rights. However, the perceived gaps between expectation and actual reality on the intentions of the government could potentially result in costly and protracted legal conflicts and greater uncertainties[31].

Similar concerns on uncertainties have been echoed in the debate period between various MLAs in B.C’s legislature. Liberal MLA and former Chief of the Haisla Nation of B.C., Ellis Ross, despite voting in favour of passing of Bill 41, is still confused due to the brevity of DRIPA[7]. During the questioning period of Bill 41, Ross raised questions on impasses and veto[28]. Different First Nations have varying perspectives and world views. Therefore, we must not conflate them as one. With that being noted, what occurs when there is an impasse or gridlock between different nations who have divergent and even heated debates on issues and projects? In this particular scenario, would the Crown “withhold its judgement if it is unable to secure full consent from all nations at the negotiation table”[28] or will this be a majority vote? Furthermore, Ross believes the principles of FPIC “sounds a lot like a veto”[28]. Currently, the language of UNDRIP and DRIPA appears to allude that there shall be "no implementation of projects or judgements by the Crown unless the Crown has secured consent from Indigenous groups affected"[28]. Despite asking the questions during debate, Ross received no satisfactory reply from the government[7].

The biggest concern of Ross was that Indigenous Peoples have come a long way since colonization and residential schools[28]. Judiciaries and legislation have provided great benefits that have expanded the rights and authority of Indigenous Peoples throughout the history of Canada. However, on the flip side of benefits reaped, precedents and legislation have also been erected that are contrary to the interests of Indigenous Peoples. With such vague language and uncertainties of DRIPA, Ross is afraid that, down the line, courts would be required to provide clarity through legal interpretations of DRIPA that may lead to new case law that pushes Indigenous Peoples back decades in progress[28]. Unfortunately, we may already be seeing this dilemma on its way as the SCC stated that it will “not hear anymore challenges from B.C. groups on the Trans Mountain pipeline expansion”[33], leaving advocacy groups and Indigenous Peoples disheartened at the court's decision on the pipeline expansion and fearing the implications of the precedent on future legal challenges. Ross, in consensus with former Minister of Justice and Attorney General of Canada, Jody Wilson-Raybould[28], believes that approaches such as the incorporation of UNDRIP are welcomed, but with so much uncertainties, these approaches are also “simplistic approaches that are unworkable in Canadian law and, respectfully, a political distraction to undertaking the hard work required to actually implement it”[34]. Notwithstanding, none of the lawyers or scholars above are against DRIPA. In fact, they see DRIPA as a landslide victory for Indigenous Peoples[7]. Instead, the issue resides with the “impractically broad language”[7] of DRIPA that have bred much unresolved uncertainty.

Clarifications

Other scholars have taken to clarify the meaning of FPIC to draw dichotomies between FPIC and what some see as veto. While scholars have advised that governments, in order to negotiate in good faith and duly execute the principle of FPIC, should not undertake activities and projects that affect Indigenous Peoples without securing consent[35], nowhere in international law, UNDRIP, DRIPA, or Canadian jurisprudence has there been parallels drawn between FPIC and veto[36]. Therefore, FPIC should not be regarded as a veto.

Veto as a term implies “arbitrary or uniform decisions and inhibits meaningful consultation”[35] whereas FPIC is and should be regarded as advancing “meaningful and informed dialogue and accommodation”[35]. In fact, we have seen UNDRIP drawing distinctions between consent and veto and precedents coming from the highest court of Canada making explicit the differentiation between consent and veto.

First, article 46(2) establishes that UNDRIP’s articles are by no means absolute and are “subject only to such limitations as are determined by law and in accordance with international human rights obligations on the condition that they are non-discriminatory, necessary solely for the purpose of securing due recognition, respect for the rights and freedoms of others, and for meeting the just and most compelling requirements of a democratic society”[35]. As such, UNDRIP has made it explicit that the UN has no intentions, nor should it be interpreted, that FPIC is synonymous to a veto.

Secondly, numerous precedents have been made by the Supreme Court on the principles of FPIC. People have commonly misconstrued the intentions of UNDRIP on the principles of FPIC by equating consent as the absolute right of Indigenous Peoples to fully block any projects which they do not agree with[36]. That is an incorrect and flawed application of FPIC. Referring back to the case of Tsilhqot’in Nation v. British Columbia., while the SCC highlighted that governments and businesses must seek the consent of Indigenous groups affected by the activities of the government, the SCC also noted that should stringent infringement tests be met by the government, the principle of FPIC could be overridden[36]. Moving on to the case of Haida Nation v. British Columbia (Minister of Forests), in paragraph 48 of the judgement by the SCC, the Supreme Court contends that “this process [of accommodation and full consent] does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal consent [full] spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take”[36].  When interpreting past precedent, we ought to see the difference between consent and veto and view FPIC as requiring full consent, as dictated in Delgamuukw, as veto only in cases where there are "very serious issues"[36] impacting Indigenous Peoples. What constitutes very serious issues may vary by circumstances, but the Supreme Court's ruling on the case of the Haida Nation have provided brief overview stipulating that deep consultation [full consent] may be required in situations where the curtailing of FPIC or Indigenous rights is “of high significance to the Aboriginal peoples, and the risk of non-compensable damages is high”[36]. Notwithstanding, no international declaration nor Canadian legislation or jurisprudence has referenced consent as veto. Therefore, by no means does FPIC amount to a veto, nor does FPIC serve as an argument for “free-standing rights of Indigenous Peoples in every circumstance”[35].

Benefits

Though there are many concerns with the Declaration, Indigenous Peoples still see some good that will come of this. Judith Sayers, a woman of the Indigenous Community who had in the early years worked on the Declaration, states some important benefits that will come of this Declaration. Sayers explained that after Bill 41 became a law the B.C laws will have to be revised to be consistent with UNDRIP. With this revision of the all laws, Indigenous Peoples will then be supported in their cultural, economic and social development[37]. Further meaning that Indigenous Peoples will be able to freely develop in their own way without being impeded by any laws that do not support this Development. The Declaration asserts that all Indigenous rights should be recognized, which in turn would allow for Indigenous communities to own, development and control their lands in the way that they would like. With this control it would allow Indigenous communities to fully manage their own territories while having full access to their resources[37]. The Declaration while recognizing the diversity of Indigenous Peoples would then allow for Indigenous communities to implement and control their own educational systems, allowing for the language, culture, history, and the different ways of the Indigenous Peoples to be taught and learnt in their own ways. One very important benefit that Sayers had mentioned was the control of sacred lands. With the Declaration being implemented, Indigenous Peoples will finally have a say in what happens to their sacred sites, who will have access to these sites and how the sites will be maintained and protected[37].  

The process of making these benefits possible, revising all B.C laws to become consistent with UNDRIP, with Bill 41 will have to be done over the course of years. It is the Government's duty to make sure that Indigenous Peoples are consulted and incorporated in this process to ensure the rights of Indigenous Peoples are fully recognized[38].

Forest Stewardship

Indigenous forest stewardship has been consistently absent over the years. however in the last few years Indigenous Peoples have become increasing involved in the forest sector[39]. This increase in due to the recognition of Indigenous rights and Indigenous communities obtaining their rightfully owned land and territories. Though Indigenous Peoples are becoming more involved in the forest sectors there are still challenges over Indigenous forest stewardship. These challenges are from the lack of engagement that Indigenous Peoples have had in the forest stewardship discussion and decision makings. This lack of engagement is due to the resource and legal constraints. In order to overcome these challenges and to advance the inclusivity of Indigenous Peoples in the development-related policies and practices regarding Indigenous forest stewardship the government has implemented a system of meaningful engagement[39].  

Meaningful Engagement  

This was implemented as a way to ensure that Indigenous Peoples will be involved in any and all decision making concerning projects. It is the responsibility of the Crown to fully consult and, if possible, accommodate Indigenous Peoples in natural resource extraction while working to involve free, prior, and informed consent before taking action on any projects that may affect Indigenous rights or title[39]. To ensure that meaningful engagement is being implemented, the 4 R’s were put into place, respect, relevance, reciprocity, responsibility.

Respect

Indigenous Peoples have a unique and effective way of life. With acknowledging Indigenous culture, traditions, values, and rights, this is respecting the Indigenous Peoples. As respect is giving to the way of life of Indigenous Peoples, this allows for communities to utilize their lands, territories, and resources in the ways that they prefer and not to be discriminated against for doing so[39]. Respect should also be given when any agreement is being implemented or signed, to ensure that the rights of title of Indigenous Peoples are being recognized and utilized.

Relevance

Indigenous Peoples need to be more fully involved in the land and resource decision making. By Indigenous Peoples being fully involved it ensures that their opinions, suggestions, and concerns will be heard and taken into account about potential effects on land and recourse stewardship. Relevance is in the pursuit to be consistent and collaborative in consultations with Indigenous Peoples. There is also the need for free, prior, and informed consent of Indigenous Peoples when the Government is putting action to a project that may affect Indigenous rights, territories and resources[39].

Reciprocity

Reciprocity will implement a strong form of partnership. When agreements between Indigenous and non-Indigenous parties are formed it should be based on the implementation of Indigenous rights and title[39]. Partnerships between Indigenous and non-Indigenous parties have the potential to advance growth for each party, however this growth will only happen if both parties are willing to engage with each other and negotiate terms.

Responsibility

It is the Governments responsibility to amend forest and land use legislation to reflect that of UNDRIP. With the amendment of these legislations there will be a greater recognition for Indigenous self-government. This self-government acknowledges that “(i) Indigenous Peoples are foundational to Canada’s constitutional framework; (ii) involvement in effective decision-making and governance facilitates collaborative consent; (iii) there is a need to transition away from the historically oppressive Indian Act; and (iv) the recognition of the operation of Indigenous jurisdictions and laws is a necessity”[39].

For a long-term relationship, built on mural respect and trust, between government, Indigenous Peoples and project proponents, a focus should come together for mutual benefits and respecting and accommodating one another perspectives and interests[35]. Governments should seek to establish commonalities between project groups and Indigenous Peoples in order for their interests to align. In that case, there is more likely to be consensus/consent with measures being proactively taken to reduce the impacts projects have on Indigenous Peoples.

Recommendations[35]

Looking at the DRC and its long-standing attempts at the incorporation of UNDRIP brings to light recommendations that not only the B.C. province, but Canada as a whole, should engage in in terms of their approaches and commitment to meeting the letter and spirit of domestic and international standards.

Relationship

  • Governments and businesses ought to be willing to put in the effort to construct long-term relationships built on the foundation of trust and mutual respect for Indigenous Peoples.

Model of Partnership

  • There needs to be an emphasis on the importance of unity and coming together for mutual benefits. That can be accomplished through respect and accommodation by Indigenous Peoples, governments, and businesses.

Procedural and Substantive Participation

  • Indigenous Peoples should have the ability to meaningfully participate in all aspects and proponents of projects that could affect them as well as having all the necessary information to make appropriate decisions.
  • Procedural participation:
    • Four core principles:
      • "(a) there must be engagement regarding the procedure to be followed; (b) there must be engagement from an early stage (where possible) and on an ongoing basis; (c) Indigenous peoples must be provided with sufficient information for a meaningful process; and (d) resources (both financial and human) will be required to facilitate the process"[35].

Substantive participation

  • Impact mitigation:
    • Measures should be proactively taken in order to reduce or mitigate impacts projects may have on Indigenous Peoples.
  • Sharing of benefits and consequences.
    • Collaborative relations must go in both ways. In order for there to be equity, both benefits and consequences should be distributed evenly amongst all the affected stakeholders.

Involvement of Government to Align Incentives and Facilitate

  • Governments should seek to establish commonalities between project groups and Indigenous Peoples in order for their interests to align. Therefore, there would more likely be consensus and consent rather than gridlocks and disputes.

References

  1. "United Nations Declaration on the Rights of Indigenous Peoples". United Nations. Retrieved April 10, 2020.
  2. 2.0 2.1 2.2 2.3 Bulkan, J. (2020, January). Vancouver.
  3. 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 World Resources Institute (2013). "Democratic Republic of the Congo". Forest Legality.
  4. 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Hoare, A., Macqueen, D., Kodi, M., Counsell, S., Long, C., & Hardcastle, P. (2008). "Towards Sustainable Management and Financing of the Democratic Republic of Congo's Forests" (PDF).CS1 maint: multiple names: authors list (link)
  5. 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 Cultural Survival (2018). "Observations on the State of Indigenous Human Rights in Congo: Prepared for the 31st Session of the United Nations Human Rights Council" (PDF). Universal Periodic Review.
  6. Facing History. "Cultural Genocide".
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 Melnitzer, Julis (November 29, 2019). "Why B.C.'s Indigenous rights bill is 'impractically broad' and inconsistent with Canadian law". Business Financial Post. Retrieved March 20, 2020.
  8. Food and Agriculture Organization. "Land Tenure". fao.org.
  9. Government of BC. "Timber Harvesting Rights".
  10. 10.0 10.1 Government of BC. "Forest Tenures".
  11. Government of BC (June 2019). "Community Forest Agreement Map" (PDF).
  12. 12.0 12.1 12.2 12.3 Tanizul Timber Ltd. "Tenures".
  13. Government of BC (2018). "Issued First Nations Woodland Licences" (PDF).
  14. Government of BC (1996). "Forest Act Div 7.1". BC Laws.
  15. Government of BC (1996). "Forest Act Div 7.11". BC Laws.
  16. 16.0 16.1 Landlinks (2010). "Democratic Republic of Congo".
  17. 17.0 17.1 17.2 17.3 17.4 17.5 Land Links (2010). "Democratic Republic of Congo".
  18. Forest Carbon Partnership Facility. "What is REDD+?".
  19. 19.0 19.1 19.2 Government of BC (July 2019). "Managing Your New Timber Tenure in British Columbia" (PDF). Ministry of Forests, Lands, Natural Resources Operations and Rural Development. 2.1: 9–10 – via Province of British Columbia.
  20. Forestry Innovation Investment. "BC Forest Management". Naturally Wood.
  21. 21.0 21.1 21.2 21.3 Government of BC. "Forest Stewardship Plans".
  22. Government of BC (2002). "Forest and Range Practices Act". BC Laws.
  23. Government of BC (2010). "Forest Planning and Practices Act". BC Laws.
  24. Government of BC. "History of Treaties in B.C."
  25. BC Treaty Commission. "Frequently Asked Questions".
  26. Government of BC. "Forests, Lands, Natural Resource Operations and Rural Development".
  27. 27.0 27.1 Baillie, James (January 14, 2020). "Where will new Indigenous rights lead?". Business Financial Post. Retrieved April 12, 2020.
  28. 28.0 28.1 28.2 28.3 28.4 28.5 28.6 28.7 Plecas, D. (2019, Oct. 30). “Official Report of Debates.” Canada. Parliament. Legislative Assembly. Edited Hansard, 286. 41st Parliament, 4th session. Retrieved from https://www.leg.bc.ca/content/hansard/41st4th/20191030pm-Hansard-n286.pdf
  29. "Bill 41 – 2019: Declaration on the Rights of Indigenous Peoples Act". Legislative Assembly of British Columbia. Retrieved April 2, 2020.
  30. Axmann, Stephanie; Lee-Anderson (November 6, 2019). "BC takes a meaningful step forward on its commitment to implement UNDRIP with the introduction of the Declaration Act (Bill 41)". McCarthy Tetrault LLP. Retrieved April 7, 2020.
  31. 31.0 31.1 O'Callaghan, Kevin; Grist (December 16, 2019). "Update on Bill 41: With DRIPA as Law, What Can We Expect Next?". Fasken. Retrieved April 11, 2020.
  32. "Free, Prior and Informed Consent". Food and Agriculture Organization of the United Nations. Retrieved April 11, 2020.
  33. Wright, Teresa (March 5, 2020). "Supreme Court will not hear challenges from B.C. groups on Trans Mountain pipeline expansion". Global News. Retrieved April 11, 2020.
  34. "Justice Minister Jody Wilson-Raybould says adopting UNDRIP into Canadian law 'unworkable'". APTN National News. July 12, 2016. Retrieved April 9, 2020.
  35. 35.0 35.1 35.2 35.3 35.4 35.5 35.6 35.7 Iacobucci, Frank; Terry; Helbronner; Fortier; Lax (July 12, 2016). "Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples". Torys LLP. Retrieved March 20, 2020.
  36. 36.0 36.1 36.2 36.3 36.4 36.5 Joffe, Paul (July 31, 2015). ""Veto" and "Consent" – Significant Differences" (PDF). British Columbia Assembly of First Nations. Retrieved March 20, 2020.
  37. 37.0 37.1 37.2 Sayer, Judith (2020). "A Historic Day for BC First Nations. Now the Work Starts: UNDRIP starts us on a journey, but without work, co-operation and shared vision we will be lost". BC Studies: 11–13.
  38. Singh, Sharon; Bursey, David; Teal, Charlotte; Curpen, Radha (2019). "British Columbia's UNDRIP Legislation - A Framework to Advance Reconciliation".
  39. 39.0 39.1 39.2 39.3 39.4 39.5 39.6 Caverley, Natasha; Lyall, Andrea; Pizzirani, Stefania; Bulkan, Janette (2019). "Articulating Indigenous Rights Within the Inclusive Development Framework: An Assessment of Forest Stewardship Policies and Practices in British Columbia, Canada". Society & Natural Resources. 33: 25–45.


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