Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Master of Laws

Program

Law

Supervisor

Coyle, Michael

Abstract

This thesis addresses an interpretive question at the heart of the discourse surrounding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the meaning of the principle of Free, Prior, and Informed Consent (FPIC). It argues that interpreting and implementing UNDRIP and specifically the articles requiring FPIC needs to be done in a way that meaningfully engages with and incorporates the laws of Indigenous peoples (Indigenous Legal Traditions or ILTs). This thesis explores why it is essential to discuss UNDRIP through the lens of ILTs, explores the scholarship and major interpretive schools of thought regarding FPIC, and concludes that at least within the Canadian context, they have not meaningfully engaged with ILTs. This thesis also addresses the ways in which Canada’s current approach to consultation (the duty to consult) engages with ILTs. It concludes with an examination of the impact that Anishinaabe law can have on the interpretation of FPIC.

Summary for Lay Audience

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) is an international human rights declaration. UNDRIP addresses a variety of subject matters including the health, traditional knowledge, economic development, and children’s rights of Indigenous peoples around the world. It also requires states to secure the free, prior, and informed consent (“FPIC”) of Indigenous peoples in a number of different circumstances, including: (i) when a state wishes to remove Indigenous peoples from their lands; (ii) when adopting laws that may affect Indigenous peoples; (iii) when states plan to store or dispose hazardous materials on Indigenous territories; and (iv) when planning things like resource development projects that affect the territories of Indigenous peoples.

There are debates amongst politicians, academics, Indigenous leaders, and others about how to define FPIC and precisely when it is required. Some in Canada suggest that since Canadian law already includes a duty to consult Indigenous peoples that Canada is in compliance with the UNDRIP articles referencing FPIC. This thesis takes the position that any interpretation of FPIC should be informed by a consideration of the laws of Indigenous peoples. It examines the debate over how to interpret FPIC for the purposes of UNDRIP through a detailed examination of the scholarship to try and determine if the scholarly writing about FPIC is engaging with the laws of Indigenous peoples. This thesis also explores whether Canada’s duty to consult makes room for ILTs, before providing the reader with an example of how the laws of Indigenous peoples can impact the interpretation of FPIC.

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