Indigenous rights and the legal politics of Canadian coloniality: what is happening to free, prior and informed consent in Canada?

Abstract

ABSTRACTThe Supreme Court of Canada has been reshaping Aboriginal law for decades, but characterisations of these changes as purely beneficial to Indigenous groups overlook the inclination of Canadian courts to eschew categorical frameworks of legal obligation toward Indigenous peoples. Past legal principles for defending Indigenous interests have been dismissed or deemphasised in favour of more flexible doctrines. The SCC has structured a Crown-Indigenous relationship that envisions governments and third party interests operating in a self-interested, but jurisprudentially regulated, fashion. This jurisprudential ethics of interrelation, however, holds in reserve the potential for infringing Indigenous rights and title without Indigenous consent. With this framework established as the standard for reconciliatory legal-politics in Canada, stronger conceptualisations of free, prior and informed consent – particularly the ability to withhold and withdraw consent – are susceptible to being cast as unreasonable and disproportionate, as embodied in the spectre of the ‘Indigenous veto’. The UNDRIP and its controversial, indeterminate principle of consent are thus being moulded to a ‘Canadian definition’ which shows little sign of surpassing those obligations already imposed upon governments by the courts, and which raises larger questions about how the declaration is absorbed into the legal-political contexts of individual states.