Indigenous Rights, Consultation and Consent

Traditional Land Uses & Culture

Support the preservation and development of First Nations’ cultures

[Tags: Cultural Protection; Indigenous Rights]

Several jurisdictions have adopted legal provisions that support the preservation and development of Indigenous peoples’ cultures. For example, under the Norwegian Constitution, it is the responsibility of State authorities to “create conditions enabling the Sami people to preserve and develop its language, culture and way of life”.36 In the Philippines, the Indigenous Peoples Rights Act requires the state to protect, develop and provide restitution for expropriated indigenous culture and traditions.37 The Philippine Constitution also requires the government to consider Indigenous culture and traditions in formulating national plans and policies.38

Recognize and protect First Nations rights to traditional use of land

[Tags: Cultural Protection; Indigenous Rights; Traditional Use]

In Sweden, the Indigenous Sami people have the right to use land and water for reindeer grazing, hunting and fishing. This right is in perpetuity and is based on custom immemorial.39 In New Zealand, the natural resource legislation mandates that all persons exercising functions and powers in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the protection of recognised customary activities.40 These provisions thereby recognize and protect Indigenous peoples’ right to traditional uses of land.

Traditional Knowledge

If we don’t say it, who will? As keepers of the knowledge, it is our responsibility to share what has been passed on to us. Lessons learned are gifts and we have the responsibility to share these in order to teach about living in harmony, balance and respect with each other and with nature and its biodiversity.

– Pauline Waterfall (2009)41

The use of Indigenous knowledge is an important method of promoting meaningful participation of Indigenous peoples in decision-making.42 In BC, the provincial government has made a commitment to develop tools and incorporate traditional ecological knowledge into information and decision making by 2015.43 However, to date the government has only pursued this goal through policy decisions – not through enforceable law. Conversely, as the following sections describe, stronger commitments to protecting and promoting Indigenous knowledge have been carried out in other jurisdictions.

Grant equal legal weight to scientific and Indigenous knowledge

[Tags: Traditional Knowledge; Indigenous Rights]

A common request by Indigenous peoples is that Indigenous knowledge be granted similar weight as western knowledge in resource decision-making processes. The need to legalize this balancing of Indigenous and scientific knowledge is recognized in the Yukon, where legal provisions provide that Indigenous knowledge is to be recognized as being equally important as scientific information.44

Require protection of Indigenous knowledge

[Tags: Cultural Protection; Traditional Knowledge; Indigenous Rights]

Under UNDRIP, Indigenous peoples are granted broad rights to “maintain, control, protect and develop” several forms of Indigenous knowledge including:45

  • cultural heritage;
  • traditional knowledge;
  • traditional cultural expressions; and
  • manifestations of their sciences, technologies and cultures, including: human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.

Some jurisdictions, such as the Philippines, have incorporated virtually all of UNDRIP’s protections into their legislation.46 The Philippines’ legislation also affords Indigenous peoples ownership rights over Indigenous knowledge. Specifically, Indigenous peoples in the Philippines are “entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights”.47 The legislation also provides that mandatory free, prior and informed consent, in accordance with customary laws, must be sought and obtained from Indigenous peoples prior to accessing Indigenous knowledge related to the conservation, utilization and enhancement of biological and genetic resources.48

Other jurisdictions have incorporated these principles into their Constitutions. Under the Bolivian Constitution, Indigenous peoples’ rights to traditional knowledge, traditional medicine, language, clothes, symbols and rituals, must be valued, respected and promoted.49 The Ecuadorian Constitution also explicitly prohibits all forms of appropriation of Indigenous peoples’ knowledge, innovations, and practices.50

In relation to cultural heritage more broadly, Queensland (Australia) law requires mining and exploration companies (among others) to “take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage” (known as a “cultural heritage duty of care”).51 Aboriginal cultural heritage includes significant Aboriginal objects (such as artefact scatters) or areas (such as sacred ceremonial sites) that are part of Aboriginal tradition and/or “the history, including contemporary history, of any Aboriginal party for an area”.52 The cultural heritage duty of care exists whether or not native title has been extinguished and can be satisfied by a miner in a number of ways, including by entering into an ‘approved’ cultural heritage management plan (CHMP) or other cultural heritage agreement with the relevant Aboriginal party for the area and then acting in accordance with that agreement.53 Notably, CHMPs are mandatory where an environmental impact statement is required for a mining lease application.54  CHMPs generally include requirements for Aboriginal parties to conduct cultural heritage surveys prior to the miner undertaking ground disturbing exploration or mining activities along with provisions for mitigation strategies to be agreed between the parties so that harm to cultural heritage can be avoided or minimised while ground disturbing activities take place.55

Protect Indigenous languages

[Tags: Cultural Protection; Traditional Knowledge; Indigenous Rights; Language]

Indigenous languages are an intimate part of Indigenous knowledge, with ancestral Indigenous teachings often contained within the words and expressions.56 The importance of protecting Indigenous languages is recognized in the Northwest Territories where Chipewyan, Cree, Gwich’in, Inuinnaqtun, Inuktitut, Inuvialuktun, North Slavey, South Slavey and Tåîchô are all recognized as official languages (in addition to English and French).57 This legislation was enacted in to preserve cultures and to ensure equal employment opportunities to all linguistic groups in the Territory, regardless of their first language learned.58

Legal protection of Indigenous languages is also provided in Scandinavian countries. The Finnish Constitution protects the right of the Sami people to maintain and develop their own language and culture.59 In addition, Finland’s Sami Language Act affirms that Indigenous (Sami) peoples have rights to use the Sami language before certain State authorities and in relation to certain administrative and legal procedures.60 In Norway, the right of Sami people to preserve and develop their languages in various contexts is also recognized in the Constitution and in numerous laws, including the Sami Act.61

US legislation explicitly recognizes that “the status of the cultures and languages of Native Americans is unique and the United States has the responsibility to act together with Native Americans to ensure the survival of these unique cultures and languages.”62 The US government policy is to “preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages.” As part of this policy, exceptions to teacher certification requirements to encourage instruction in Native American languages are granted.63 In addition, the law mandates that the right of Indigenous peoples to express themselves through the use of Indigenous languages shall not be restricted in any public proceeding.64

Protect the confidentiality of Indigenous knowledge

[Tags: Cultural Protection; Traditional Knowledge; Indigenous Rights]
Under New Zealand legislation, the regulatory authority is empowered to refuse a disclosure request where it deems “that such refusal is necessary to avoid serious offence to tikanga Maori or to avoid the disclosure of the location of waahi tapu”.65 The protection of Indigenous knowledge is granted greater weight than the public interest in making such information available.66

Traditional Legal & Governance Systems

Tlingit law is our identity

– Teslin Tlingit Nation (2005)67

Western cultures have largely failed to recognize Indigenous peoples’ legal systems. However, some jurisdictions are beginning to adopt laws that correct this historic wrong. The following sections review different legal approaches to granting greater legal weight to Indigenous legal systems, through the recognition of customary laws, participation and shared decision-making rights, and rights to self-government. Incorporating Indigenous legal systems into mining laws may also help to encourage more productive, non-confrontational relationships and dialogue.

Recognize First Nations’ legal traditions in legislation

[Tags: Cultural Protection; Indigenous Rights]
Many jurisdictions have enacted legislation that explicitly recognizes Indigenous peoples’ legal traditions. In South Africa and several Pacific island states (Fiji, Vanuatu, Samoa, the Marshall Islands and the Solomon Islands), the recognition is enshrined in national Constitutions, and in some of these jurisdictions this recognition is expanded upon in specific legislation.68 Other countries, including the Cook Islands, the Republic of Kiribati, Tuvalu, and Papua New Guinea, have enacted legislation recognizing customary laws and practices.69 More locally, in Canada’s Northwest Territories, judicial notice of Indigenous laws has been codified in self-government agreements.70 Even in BC, the Nisga’a Final Agreement recognizes the Ayuuk, the ancient legal code of the Nisga’a, as a source of Nisga’a law.71 However, without more formal legislation, the adoption of this approach in future agreements with First Nations in the province is uncertain.

Consider First Nations customary law in exercise of legal functions and powers

[Tags: Cultural Protection; Indigenous Rights]
Under New Zealand mining law, all persons managing the use, development, and protection of natural and physical resources, shall have particular regard to kaitiakitanga. Kaitiakitanga is defined as the exercise of guardianship by the tangata whenua (‘Maori’) of an area in accordance with tikanga Maori (‘Maori traditional rules and culture’) in relation to natural and physical resources.72 A similar approach is available under the Bolivian Constitution, which mandates that consultation with Indigenous peoples regarding the exploitation of natural resources must be carried out with respect to Indigenous peoples’ own rules and procedures.73

Recognize the right to self-government

[Tags: Self-Government; Indigenous Rights]

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions

– UN Declaration on the Rights of Indigenous Peoples (2007)74

In BC, some First Nations have secured self-government rights under modern-day treaties. However, only a few such treaties have been signed to date, leaving most First Nations across the province without legal self-government rights.75
In contrast, under Philippine legislation, Indigenous peoples throughout the country are broadly granted the right to “maintain and develop their own indigenous political structures”.76 Philippine legislation also recognizes the inherent right of Indigenous communities to self-governance.77 Under the Colombian Constitution, Indigenous peoples’ authorities may exercise their jurisdictional functions within their territorial jurisdiction in accordance with their own laws and procedures (provided they are not contrary to Colombian Constitution and legislation).78 These authorities are to be formed and regulated according to the Indigenous peoples’ own customs.79 Similarly, Constitutional protection of Indigenous peoples’ self-governments is provided under Ghana law, which recognizes “the institution of chieftaincy, together with its traditional councils as established by customary law and usage”.80 Finally, the United Nations recently recognized Indigenous (Sami) Parliaments in the Scandinavian countries of Norway, Sweden, and Finland as “important model[s] for indigenous self-governance and participation in decision-making that could inspire the development of similar institutions elsewhere in the world.”81

Provide funding to help First Nations develop their own mining regulatory programs

[Tags: Indigenous Rights; Self-Government; Shared Decision-Making; Funding]
Under US federal legislation, grants are to be made to Indigenous peoples (the Navajo, Hopi, Northern Cheyenne, and Crow tribes) to assist them in developing regulations and programs for regulating surface coal mining and reclamation operations on their lands.82

Traditional Territories

Indigenous peoples’ right to enjoy their own cultures is inextricably linked to their rights to use their traditional lands and to participate in decisions relating to natural resources on these lands.83

Recognise First Nation’s right to own and manage their traditional territories

[Tags: Indigenous Rights; Self-Government; Traditional Territories]
Indigenous peoples’ right to own and manage their traditional territories has been provided for in Constitutions and laws around the world. For example, under Ghana’s Constitution, Indigenous peoples’ rights of ownership over ancestral domains include the right to develop land and natural resources.84 There, the lands belonging to traditional chiefs and kings are vested on behalf of and in trust for, the subjects of the chief or king in accordance with customary law and usage.85
Under the Bolivian Constitution, Indigenous peoples are granted the right to autonomous management of Indigenous lands without prejudice to rights legitimately acquired by others.86 The Constitution also explicitly protects Indigenous peoples’ sacred sites.87
Under the Ecuadorian Constitution, Indigenous peoples are granted the right to keep ownership of ancestral lands and territories.88 In Peru, the Amazonian Indians’ inalienable collective ownership over their lands is recognized under its Native Communities Act.89
Under the Colombian Constitution, Indigenous communities are granted the right to form councils, whose functions may include the supervision of the application of legal regulations concerning the uses of land and conservation of natural resources within their territories.90
Under the Brazilian Constitution, Indigenous peoples are granted their original rights to the lands they traditionally occupied. This right is accompanied by a duty on the State to demarcate, protect and ensure respect for all of the Indigenous peoples’ property.91 Lands that Indigenous peoples have traditionally occupied are defined as:

  • those on which they live on a permanent basis;
  • those used for their productive activities; and
  • those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, according to their uses, customs and traditions.92

In the Philippines, the right of Indigenous peoples to regulate in accordance with their customary laws explicitly recognizes the spiritual and cultural bonds to the areas that they possess, occupy, and use, and to which they have claims of ownership.93 Furthermore, the Philippine state must protect Indigenous peoples’ right to “their ancestral domains to ensure their economic, social and cultural well-being and shall recognize the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain”.94

Recognize the right to healthy environment

[Tags: Indigenous Rights; Traditional Territories; Environment]
Under the Bolivian Constitution, Indigenous peoples are granted the right to live in a healthy environment, with proper management and use of ecosystems.95 The South African Constitution, Kenyan Constitution, and Congolese law also recognize Indigenous peoples’ right to a healthy environment.96

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