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The right to free, prior, and informed consent (FPIC): reflections on experiences of two Indigenous communities in northern regions of Canada and Chile

Terry Mitchell, Courtney Arseneau, Jose Aylwin, and Darren Thomas

We wish to acknowledge the leadership role played in the development of this chapter by the chiefs of the Matawa First Nations with the support of their tribal council support staff. We also wish to thank Dr. Peggy Smith, Professor Emerita of Lakehead University, for her community engagement and intellectual leadership, and the Diaguita leaders from Chile who engaged in the research partnership in Chile and the FPIC workshop in Matawa. The authors have sole responsibility for the final content. We also wish to thank the Social Sciences and Humanities Research Council for their generous support.

The emergence of an international Indigenous rights regime, most strongly signaled by the United Nations Declaration on the Rights of Indigenous Peoples,[1] is slowly changing the playing field for resource development around the globe.[2] Advancing Indigenous rights, particularly the right to free, prior, and informed consent (FPIC) regarding development on Indigenous territories, will be essential for reconciling economic development agendas with the inequalities and injustices endured by Indigenous Peoples. This is especially true for Canada, given the country’s economic dependence on resource extraction both domestically and internationally. In this chapter, we focus on the ongoing pressures faced by Indigenous communities in responding to growing global investments in extractive activities such as mining. In highlighting the obligations of states and businesses to adhere to consultation processes and practices of the right to FPIC, we will provide a comparative analysis of the barriers faced by Indigenous Peoples in mining-affected communities in northern Ontario (Canada) and in northern Chile. We also call attention to the extraterritorial responsibilities of Canada’s mining investments in Chile presenting the situation of global extractive practices as a new wave of colonialism known as extractive imperialism.

As members of the Pan-American Indigenous Rights and Resource Governance Network and a team of Indigenous and non-Indigenous scholars and community leaders from across the Americas, we have worked together over several years with the aim of advancing the understanding of Indigenous Peoples’ right to FPIC from an interdisciplinary and intercultural perspective. This research was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC) Grn-435-2015-1302-Mitchcll. The research program received ethics review and approval from Laurier University’s Research Ethics Board. Three of the authors are community psychologists who have been working in partnership with the Matawa tribal council and their nine-member First Nations communities in the context of the “Ring of Fire” in northern Ontario. The fourth author is a human rights lawyer who has been w'orking with the Observatorio Ciudadano (Citizen’s Watch) in conducting a human rights impact assessment of Canadian mining activities in the Atacama Desert of northern Chile with the Diaguita people of Huasco Alto.[3] Together, we adopt a critical lens to analyze the impact of the ongoing colonial forces involved in extractive industries across our case study sites. We draw from our comparative analysis to report on the challenges of asserting Indigenous rights to self-determined development and exercising the right to FPIC. We will discuss the key Pan-American findings of (1) a lack of consultation and information; (2) inducement and division; and (3) environmental impacts, as parallel experiences across both regions. We conclude with reflections on decolonial approaches to consultation and policy recommendations for the implementation of FPIC and the monitoring of Indigenous rights in Canadian mining activities across the Americas.

Background

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), approved in 2007 with Chile’s support and with a delayed signing by Canada in 2010, is an important international consensus document, setting “the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world”.[4] Building on previous international norms, such as those enshrined in the International Labour Organization (ILO) Convention 169 on Indigenous and Tribal Peoples,[5] the Convention on Biological Diversity (1993), and the International Convention on the Elimination of All Forms of Racial Discrimination (1969), the UNDRIP reinforces the global movement toward a human rights framework expressed and defined through international law. Central to UNDRIP is the right to consultation, and in certain circumstances, the right to FPIC as an expression of the right to self-determination.

Canada has a contradictory relationship with Indigenous rights and UNDRIP. Despite Canada’s significant role in advancing the internationalization of Indigenous rights, the government of Canada is not a signatory to ILO Convention 169 and refused to sign UNDRIP at its adoption in 2007. The Canadian government eventually became a signatory to UNDRIP in 2010, with qualifications referring to the Declaration as an “aspirational document”. In 2014, the Canadian government under Prime Minister Harper was the only UN member to refuse to adopt the outcome document of the Indigenous World Conference, citing objections to article 20 of the document due to its explicit commitment to the implementation of FPIC.

Unfortunately, it is evident that the principles set out in the UNDRIP are often neglected in practice. As such, international scrutiny of states that have significant Indigenous populations, such as Canada and Chile, has put increasing pressure on policy makers to reform legal norms and administrative structures at the national level. For instance, in reporting on his visit to Canada in October 2013, James Anaya, former UN Special Rapporteur on the Rights of Indigenous Peoples, articulated that despite a strong legal framework, Indigenous rights in Canada are in crisis. He highlighted the multiple social problems faced by Indigenous peoples across the nation, stating that “it simply cannot be acceptable that these conditions persist in the midst of a country with such great wealth”.[6]

Nowhere is this contradiction between legal order and policy practice more apparent than in the multiple cases of social conflict around resource development on Indigenous traditional territories. In the absence of an intercultural, rights-based framework, Indigenous Peoples have been positioned as “standing in the way of progress”,[7] while being disproportionately and negatively affected by industrial processes.[8] This situation creates economic and cultural contexts for enduring social and economic disparities and escalating social conflict between states and Indigenous populations nationally and globally, increasingly characterized by violence, particularly in Latin America. As Anaya noted in his report, there is an atmosphere of increasing distrust between Indigenous Peoples and Canadian governments, especially in light of the lack of appropriate consultation with Indigenous communities in advance of resource development in their territories. The disjuncture between emerging international rights standards and Canadian policy is of grave concern, especially given the push to amplify Canada’s position as a powerhouse in resource exports by expanding mineral and energy extraction in regions like northern Ontario’s Ring of Fire and northern areas of Chile.

Canada is not alone in such contradictions. Chile has also repeatedly come under international scrutiny for the fraught relationship between the government and Indigenous peoples. The Chilean Constitution does not recognize Indigenous Peoples or their rights. Although ILO Convention 169 on Indigenous and Tribal Peoples of 1989 was ratified by the Chilean state in 2008, Indigenous Peoples’ rights are regulated by Law No. 19,253 of 1993 on the Promotion, Protection and Development of the Indigenous, a law that does not meet the standards of international law on the rights of Indigenous Peoples. This persists particularly in relation to rights to lands, territories, and natural resources traditionally occupied or used, self- determination, autonomy, and the right to FPIC. Public policies implemented by the Chilean state in the last decades have been aimed at promoting foreign investment, largely on natural resource extraction. Indeed, the Chilean government has signed free trade agreements with all large economies, including Canada. Such agreements have had a direct effect on the increase of investment in the extraction of natural resources and in infrastructure - mining in the north of the country; forestry and fish farming in the south; and energy and infrastructure projects throughout the country, in land and territories legally belonging to, or traditionally occupied by Indigenous Peoples.[9] The installation of mines, hydroelectric dams, and other infrastructure projects have generated social conflict as Indigenous communities demand meaningful participation in decisions around resource development.[10] As in Canada, the Chilean government has consistently resisted fulsome interpretation of its duties under the emerging international Indigenous rights regime. If such shortcomings in Chilean policy echo challenges faced in Canada, they also present a direct concern as Canadian companies represent the most significant source of foreign investment in Chile’s mining sector.[11]

Colonialism and extractivist imperialism

Canada, with its resource-based economy, is emerging as a global mining superpower with considerable mining interests within Canada and abroad.[12] Much of Canada’s global dominance in mining is exerted in Latin America, predominantly on Indigenous territories.[13] This new era of resource extraction, funded by global capital and dominated by Canadian mining companies, has been termed extractivist imperialism.[14] Extractive imperialism is defined as a global political economy of natural resource extraction. Extractive industries engage in colonial forms of territorial displacement characterized by environmental degradation, denuding and polluting of Indigenous territories, and dispossessing Indigenous Peoples from their territories and natural resources.[15]

Extractivist imperialism commits the violence of gross interference of Indigenous territories and Indigenous lifeways by viewing water, minerals, land, and trees through the lens of market value rather than through the lens of relationship. As stated by Indigenous scholar and activist Leanne Simpson:

Extraction and assimilation go together. Colonialism and capitalism are based on extracting and assimilating . . . The act of extraction removes all of the relationships that give whatever is being extracted meaning. Extracting is taking. Actually, extracting is stealing - it is taking without consent, without thought, care or even knowledge of the impacts that extraction has on the other living things in that environment. That’s always been a part of colonialism and conquest.[16]

Due to the high demand of resources on Indigenous territories and a conflict in worldviews, Indigenous Peoples in Canada and elsewhere have been positioned as standing in the way of progress.[17] Increasing conflict has, therefore, arisen between the rights of Indigenous Peoples and the far reach of global capital in the form of extractivist imperialism both in Canada and Chile. Canadian mining investments in Canada and Chile have not only failed to provide social and economic benefits to Indigenous communities, but they have had major negative socioeconomic and environmental costs causing cultural disruption and political conflict.[18]

Extractivist imperialism undermines the very existence and reality of Indigenous law through the dominating forces of colonial state law and business practices. Indigenous self-determination is further undermined as national governments sign new global economic treaties such as the Trans-Pacific Partnership (TPP), signed by Canada, Chile, and nine other countries in March 2018[19] central to an international expression of extractivist imperialism.

Description of case study sites

Within the context of this new wave of colonialism, we will report on Canadian mining activities in two case study sites: in northern Ontario and in northern Chile. We will begin by providing a description of both cases and will subsequently discuss the key themes that have emerged as common experiences faced by Indigenous Peoples across these two regions. We compare these case sites for two key reasons. First, colonialism has seriously impacted Indigenous Peoples globally. Despite differences in political and economic contexts, and diverse histories and cultures, Indigenous Peoples in both North and South America are impacted by extractive imperialism. Canada, one of the biggest mining stakeholders in the world, has led extractive projects that grossly impact Indigenous Peoples’ social, cultural, environmental, and political livelihoods across the Americas. Second, the emerging international Indigenous rights standards should hold the same weight and substantive nature in both North and South America, given that all Indigenous Peoples should be able to enjoy the rights set out by the UNDRIP. Our goal as a research team is to invite the voices and to understand the experiences of Indigenous Peoples in the North and South to engage in the interpretation and meaning of FPIC. In doing so, we offer a comparative perspective on the similarities and differences in the Pan-American implementation and uptake of FPIC.

Case study site 1: the “Ring of Fire” and the Mataxva First Nations communities, Canada

Nine Ojibway and Cree communities in northern Ontario, Canada, form the Matawa First Nations tribal council (pop. 10,000). Following the discovery of a large chromite deposit in 2008, with an estimated value of over S60 billion,[20] the Matawa First Nations communities have been actively involved in deliberations, negotiations, and capacity building in response to the proposed mine and associated development coined the “Ring of Fire”. The mining and processing of chromite, used primarily in stainless steel processing, is of notable environmental concern given the vast muskeg, intricate watersheds, and pristine boreal forests of the north. The mineral-rich Matawa region also holds deposits of nickel, copper, zinc, and other metals and has since attracted hundreds of mining claims by numerous proponents, with Noront Resources acquiring the majority of active claims in the immediate Ring of Fire area (ROF).

The ROF is located approximately 540 kilometers northeast of Thunder Bay, Ontario.[21] This area is within the Treaty 9 (1905-1906, adhesions 1929-1930) area and is the ancestral home of Anishinaabe (Ojibway), Mushkegowuk (Cree), and Oji-Cree Nations. Matawa First Nations Management is a tribal council formed in 1988 to support nine First Nation member communities in the region: Aroland, Constance Lake, Eabantetoong, Ginoogaming, Long Lake #58, Nibinamik, Marten Falls, Neskantaga, and Webequie. With a total membership population of 9,500, the Matawa First Nations have unique sets of needs and priorities, with some communities accessible by road (Aroland, Constance Lake, Ginoogaming, and Long Lake #58) and others accessible by air or winter roads (Eabantetoong, Nibinamik, Marten Falls, Neskantaga, and Webequie).

Several Matawa First Nations are familiar with forestry and some may have benefited from employment opportunities in the forest sector. With the modernization of the Mining Act (1990) in 2009 and the introduction of the Far North Act (2010),[22] the Province of Ontario is developing protocols for actively engaging Indigenous communities to consider resource extraction, with a focus on mining, as an economic strategy to enhance their infrastructure development. The Matawa First Nations are engaged in a process of discussing scientific reports, hill of complex technical language, in their efforts to develop a common understanding and collective decision-making process on whether or not to proceed with the proposed development in their territories.

Although the nine communities have a shared Unity Declaration (Mamow- Wecheekapawetahteewiin), the communities have distinct histories, experiences, and priorities. Overall, the communities report that they are supportive of development but only if the benefits of the proposed development are maximized and environmental damage is limited. Matawa First Nations are considering the options and opportunities of industrial development in large part because many communities lack basic infrastructure such as adequate housing. Several communities have been on a water boil advisory for over 25 years. In some of these communities, people continue to live off of the land as part of the ecosystem. In facing this proposed mining activity and associated development (e.g. road development/infrastructure), member communities in the Matawa region have reported experiences of coercion and lack of adequate consultation. Despite ongoing pressures from both industry and the provincial government, community leadership within the nine communities and representatives of their various local and regional working groups continue to assert that development will not proceed without their FPIC.

The case study research in the Matawa region officially began in 2015 with the establishment of a research protocol in partnership with the Matawa First Nations Management and with the support of the Matawa Chiefs Council. Over the past three years, we have been visiting with leadership, management, and members from the Matawa First Nations communities to learn about their experiences of consultation and consent and their efforts at asserting their rights to self-determined development. In addition to individual interviews, focus groups, and community visits, we also organized a workshop on FPIC with Matawa, where members discussed and defined the principles of FPIC in the context of proposed development on their lands and territories. Notably, Matawa hosted two leaders at this workshop from the Indigenous Diaguita community from the northern Atacama Desert in Chile. This coming together of Indigenous communities facilitated the sharing of experiences, strategies of resistance, and Indigenous perspectives of consultation and FPIC from across the Americas. In the spring of 2018, there was a change in the political leadership of the province of Ontario, and the Matawa chiefs received no communications from the new premier’s office and no responses to their inquiries for a year. It was unclear if, in the absence of any formal provincial consultation processes, whether the province was no longer pursuing access to the ROF or if the premier did not see tlie necessity of maintaining relationships to advance meaningful consultation. In the meantime, Matawa First Nations, with the support of the federal government, continued to meet to discuss their regional priorities with a renewed focus on their unity agreement.

Case study site 2: Canadian mining on the territories of the Diaguita people, Chile

Our research in Latin America has centered around two large mining projects in Chile, Pascua Lama and El Morro, owned by Canadian transnational corporations. Both projects are located in the traditional territory of the Diaguita people, with a population of 50,000, in northern Chile along the border of Argentina, in the dry desert of Atacama. Pascua Lama is a mining project of the Nevada Mining Company (Compania Minera Nevada SpA), a subsidiary of Barrick Gold in Chile, incorporated in Canada. Pascua Lama is an open-pit gold and silver mine, located at more than 4,000 meters of elevation on the border of Chile and Argentina. In Chile, Pascua is in Huasco Province, in the Atacama region; Lama is situated in Argentina’s San Juan Province.

The project in Chile is located at the headwaters of the El Estrecho and El Toro Rivers, and it involves the exploitation of a mineral deposit existing under the glaciers that sustain the Huasco Valley hydrological system. These glaciers irrigate ancestral territory of the Diaguita people (Diaguitas Huasco Altinos Agricultural Community), a territory usurped through legal loopholes in the early 20th century and purchased by the Compania Minera Nevada for the implementation of the Pascua Lama project. Despite this fact, the community was not consulted before operations began. This led the Diaguita people to file a complaint to the Inter-American Commission on Human Rights that was declared admissible in 2009. In addition to the Pascua Lama mining project’s violation of the fundamental right of consultation and the other human rights violations noted and FPIC, it has tailed to fulfill the environmental requirements of Chile’s Environmental Qualification Resolution. As a result of this non fulfillment, the project was halted on the basis of lack of compliance to the environmental impact assessment. Moreover, in 2018, the Chilean environmental authority fined the company for its harms to the environment; however, it is currently in the process of being re-evaluated with Chinese investors with the intention to re-establish the project as an underground mine.

The second project under study is the El Morro mining project, originally owned by Goldcorp Inc., also headquartered in Canada. The project involves the exploitation of an open-pit gold and silver mine. El Morro’s worksites, located in Huasco and Copiapo Provinces, cover an area of approximately 2,460 hectares, out of which 1,420 hectares correspond to legally registered territory of the Diaguita people. In 2008, the Sociedad Contractual Minera El Morro submitted an environmental impact assessment (EIA) to the Regional Environmental Committee of the Atacama region, thereby presenting the El Morro project to the

Environmental Impact Assessment System. After a series of addenda, the project was approved by the environmental authority. Soon thereafter, judicial actions were filed against the El Morro project for violation of constitutional guarantees, in particular because the Indigenous consultation was not performed as established in the ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries.[23] These actions found acceptance in the courts, which ordered the annulment of the authorization issued by the Chilean government. Owing to this judicial decision, the company decided to temporarily withdraw the project from the Environmental Impact Assessment System and to indefinitely suspend its execution. Nevertheless, in 2015 Goldcorp, with Teck Resources, a company also based in Canada, announced their intention to amend the original project to give rise to the Corredor project that combines the El Morro mining project with another adjacent project called Relincho. The combined project was later named New Union, or Nueva Union, in reference to this merger. As in the case of Pascua Lama, the Nueva Union project has not publicly stated whether this modification substantially affects the impacts of the project and/or allows compliance with the requirements imposed by the Diaguita people and citizens. In addition, the Indigenous consultation is still pending. In response to the threats posed by mining, the Diaguita peoples are seeking to protect their land as an Indigenous Conservation Territory under guidelines set out by the International Union for Conservation of Nature.

The human rights impacts of these two large mining projects were recently assessed by the Observatorio Ciudadano.[24] Among other rights that according to this assessment have been violated are the right to equality and non-discrimination; the right to self-determination, autonomy, and self-government; the right to maintain and strengthen their own political, legal, economic, social, and cultural institutions; the right to decide their own priorities for the process of development; the Indigenous Peoples’ right to ownership of their lands, territories, and natural resources, including the right to own, use, develop, and control the lands and territories they possess by reason of traditional ownership or other traditional occupation or use; and the right to consultation and to FPIC. The assessment also found that those responsible for these human rights violations included both Chile, for the authorization of these projects without consultation and FPIC of the Diaguita people, and Canada, as a result of the refusal of its government to accept the recommendations of international human rights organizations. Said organizations have urged it to adopt legislative and policy measures to meet its extraterritorial obligations for the violation of human rights by companies domiciled in Canada acting outside the country to prevent, remedy, and sanction such violations. We also found that the companies behind the project described here were also responsible for the collective rights violations of the Diaguita people, in particular due to the lack of due diligence in securing these rights.

Evidence of common experiences, when Indigenous Peoples are engaged with proposed development and resource extraction on their traditional territories, were identified. In the following section, we will highlight key themes that we have observed across the Canadian and Chilean cases study sites in order to compare the experiences of the Diaguita people in the Atacama region of Chile (as reflected in the human rights impact assessment) with the experiences ofMatawa First Nations in northern Ontario, Canada. In order to understand the experiences of the latter, we conducted interviews, focus groups, and workshops about FPIC in a research partnership with the Matawa First Nations communities.

Comparative analysis: common experiences of Indigenous peoples in asserting FPIC

While the history and stages of development are different across the two cases, and each case exists within a distinct political and cultural context with different legal frameworks, nevertheless very similar strategies were reported being used by governments and mining corporations in both cases. Communities across both regions shared similar experiences of inadequate consultation and information sharing, experiences of inducement and community division, as well as reports of significant environmental impacts.

Lack of consultation and information

Across both cases, Indigenous communities have reported that they were not meaningfully consulted prior to the beginning of proposed development activities, such as before exploration permits have been issued. In Chile, in the Atacama region, one community member said that “we found out about the mining project when they began working and four-wheel drive vehicles and helicopters came”.[25] Similar experiences were reported in northern Ontario, where companies have illegitimately viewed hosting a meeting in the community as fulfilling their consultation obligations. Indigenous communities in both the Canadian and Chilean cases were clear that this is not acceptable:

A company can come in and engage community Elders. That’s not a consultation, that’s just an open house or a meeting . . . but then they use that later, they check it off as we consulted with the Elders . . . but it wasn’t. No. Nobody conceded to it.

(Matawa region)

Communities need to be adequately informed about the economic, environmental, social, financial, and legal aspects of proposed development. It takes time to do that. However, it has been reported and confirmed that First Nations in

Ontario arc expected to respond and provide input on proposed plans and government permits without having adequate resources, staff, and time to do so under very tight timelines (e.g. 30 days for reviewing and responding to proposed plans).[26] In Matawa, community members reported that they always feel like they have to catch up to the timelines and regulations set by others, the government, and the industry’s agenda. Adding to this pressure is the need for communities to quickly learn specialized technical knowledge about development and the mining cycle:

[The mining companies] use technical words; we are farmers and don’t understand.

(Atacama region)

You’re looking for community input but it seems to be unfair to the community members because if they don’t know anything about the mining perspectives, the business side, or how they will be socially impacted, then they don’t completely understand.

(Matawa region)

Across both regions, there is a need to make all of this highly technical information more accessible, not just in plain language but also in the preferred language of the communities.

Inducement and division

The processes for consultation, the consideration of proposed development, and decision- making should be determined by Indigenous communities. Instead, we consistently hear community members expressing a feeling of having to work on other people’s terms and that Indigenous communities continually have to “prove” their inherent rights. As one Matawa member said, “we’re always proving to the government that we have a footprint on the land. It should be changed around. It should be the government proving it”.[27]

Community members across both cases have also reflected on some of the industry and government strategies used. For example, some people discussed the fear of indirect forms of intimidation, such as their communities feeling pressured to make a decision. They also discuss the community division that can occur when communities are not given adequate time to reach consensus using their own traditional decision-making processes:

The miners came to change our lives; they came to impose another way of life on us, so there is a lot of division.

(Atacama region)

Divide and conquer tactics ... so they are trying to diffuse our unity and strength, but I think that we maintain the original principles . . . but that is why the laws are different. Their ideology is different, our ideology is sharing.

(Matawa region)

Environmental impacts

Indigenous Peoples have an inherent right and responsibility to make decisions about their lands and to make decisions that will protect their territories to sustain them for future generations. Communities have an intimate knowledge of their territories and despite companies coming in and saying that “environmental impacts will be mitigated”, community members have already observed the harmful impacts of development, even at early stages of exploration. In both regions, communities have observed changes to the water and fish as a result of past development:

[The mining company] tell us a beautiful story; they tell us that the water will not be dirty, but the valley is already dry. The little water that exists is for the vineyards and for the miners. The vineyards poison the water.

(Atacama region)

It’s all going to change from the way we live now. You won’t be able to eat the fish in about five, six years. Right now, it’s starting. They don’t even have sturgeon running in the rivers anymore because of the dams that are blocking the rivers.

(Matawa region)

The economic model of development that is framed by Western governments and industries does not adequately consider the inherent relationship and duty to protect the environment that is so fundamental to the social, cultural, physical, and spiritual wellbeing of Indigenous communities:

To be Huasco Altino means to defend the earth.

(Atacama region)

We told the industry and the government that they have to come to the table because our land, resources, water and trees are sacred and clean. It seems like they never wanted to learn to understand that. . . that is our livelihood, where we came from.

(Matawa region)

The cultural responsibility to take care of the territory and to honour the sacredness of the living world is a critical point central to Indigenous law. This is not an echoing of a simple cultural anecdote; this philosophy is part of Indigenous Peoples’ way of being. These ways of knowing and understanding the world and Indigenous Peoples’ relationship to their environment is how Indigenous Peoples have lived since time immemorial. Indigenous laws are what have guided and constructed Indigenous societies, ceremonies, and civilizations and which are related to specific roles, duties, and obligations for members of an Indigenous society. Honouring, respecting, and protecting the land for future generations to enjoy is one of those laws. Indigenous people will never look at their resource- rich lands and think about its economic value alone.

Responsibilities of states and industries

The analysis of community data was based on the United Nations Guiding Principles on Business and Human Rights,[28] which acknowledges that both states and businesses have a responsibility regarding human rights. We reflect on the interpretation of UN treaty bodies that say states have human rights obligations to pursue not only within their borders but also outside their borders (i.e. extraterritorial obligations of the state). Both the Chilean and the Canadian states have fostered investment in mining through trade agreements. This emerging issue is a new expression of colonialism. Chile was the first country in Latin America to sign a free trade agreement with Canada after the North American Free Trade Agreement (NAFTA, originally signed in 1996 and recently renewed in 2017). Now, they are both signatories of the new TPP-11. Both states are responsible for the huge influx of investment in Chile of Canadian mining corporations. These trade agreements were never assessed from a human rights perspective, despite the United Nations recommendation that states implement human rights assessments of the implications of trade agreements. Although Chile ratified Convention 169, the country has been reluctant to comply to this international standard, particularly the principles of FPIC. The state of Chile never demarcated and has not respected rights of property based on registered lands or on rights of traditional occupancy of the lands (which in the Canadian context is known as Aboriginal title). The Canadian government has said it is responsible for fostering these investments; however, Canada has been reluctant to follow reparations as outlined by the UN treaty bodies to make Canadian businesses operating abroad responsible for human rights grievances and violations. Businesses are responsible when they have not done their due diligence to operate on Indigenous lands. Industrial proponents are responsible for not acknowledging and for not respecting the representative Indigenous organizations - by manipulating and generating new municipalities in order to bypass the Indigenous groups that have opposed them or seeking contracts with individual communities that are otherwise part of a regional group with a unity agreement.

Decolonial approaches to consultation and FPIC: an intercultural perspective

Decolonialism is about relationship. For Indigenous Peoples, it has been about remembering and reclaiming Indigeneity while actively resisting colonial relations. We have witnessed this in our work with Indigenous Peoples across our case study sites. Indigenous Peoples are seeking the freedom and support to be Indigenous - to reclaim and celebrate their Indigeneity; to relearn their languages; to engage more in fishing, hunting, sewing traditional garments; to engage in more out-on-the-land programs; and to seek ways to bring youth and Elders together again. Indigenous Peoples are in a time of reclaiming and restoring culture and well-being. Some communities talk about this time of reclaiming and restoration as healing.

Colonial trauma has disrupted Indigenous families for generations.[29] It will take time to restore, rebuild, and strengthen communities. When we speak about decolonizing, it includes Indigenous processes of reclaiming and restoring Indigenous Peoples’ well-being. This involves returning to traditional ways of knowing and recognizing that traditional knowledge and ways of knowing are just as relevant today, if not more, as Indigenous Peoples’ work to strengthen and rebuild the well-being of their communities and families. An Indigenous cosmology' is what many Indigenous Nations refer to as their “original instructions”, part of Indigenous legal traditions.[30]

As elsewhere, however, Indigenous Peoples in Canada have been positioned as “standing in the way of progress”, while being disproportionately and negatively affected by industrial processes.[31] Increasing conflict has arisen due to a second wave of colonialism in the form of cxtractivist imperialism, in which governments and industries seek gold, silver, uranium, iron ore, copper, chromite, and other resources from Indigenous territories domestically and abroad.[32]

Contemporary colonial expressions emerge as extractivist imperialist business ventures which are tremendously persistent, pernicious, and threatening to Indigenous communities globally. Extractivist imperialism is generated and sustained by global capital, where basic rights are now traded for land and resources. The current era of extractive imperialism undermines the very existence and reality of Indigenous law and is currently upheld by Canadian state law and business practices. Canadian industries are affecting Indigenous territories across Canada and around the globe. Indigenous self-determination is further undermined as national governments sign new global economic treaties such as the TPP, which Canada recently signed.

Extractivist imperialism is a contemporary form of settler colonialism that further displaces Indigenous Peoples from their lands and territories and traditional lifeways. Extractive industries engage in colonial forms of dispossession and displacement. For example, significant to this new era of extractive imperialism is the environmental degradation, denuding, and polluting of Indigenous territories. This displacement and dispossession of land and culture is grossly expressed by extractive industries within both Canada and Latin America. Current practices of mineral exploration and extractivism arc premised upon a profound disregard of Indigenous values, views, and laws as confirmed by our community observations and interviews in Chile and Canada. In both cases, we observed that there is persistence of colonialism in the imposition of Western law and Western models of development and, as a result, expectations for consultation and FPIC are not being realized from either the perspective of Indigenous communities or the standard of the Canadian Supreme Court.

In our work, we have observed that many Indigenous leadership and community members are often unaware of international and domestic rights standards that could be applied in asserting their existing inherent and treaty rights and those rights protected under domestic and international rights frameworks. For many Indigenous People, a significant amount of their time, energy, and resources is spent responding to immediate issues and community concerns such as attending to housing crises, substandard healthcare, and education. The privilege of examining, learning, and exploring how to use domestic and international law in asserting their Indigenous rights is not always feasible.

The Diaguita peoples have, however, engaged in various strategies of resistance. They have reported that they need to challenge global investments and that it is difficult to do this at a local level. They took their case, therefore, to the Inter- American human rights system as well as the UN human rights system. They established partnerships with the Canadian Network of Corporate Accountability to bring their claims to the attention of Canada’s Global Affairs and to build alliances with civil society organizations. The Matawa First Nations communities have also resisted ongoing pressures and have successfully asserted their rights to self-determined development. One example of this is Neskantaga First Nation’s refusal to adhere to the controversial Far North Arf53 - provincial legislation that regulates land-use planning and protected areas - choosing to establish their own community protocols. Another example is Eabametoong First Nation successfully halting an exploration permit issued to Landorc Resources that would allow drilling on their traditional territory. The decision of the Ontario Superior Court of Justice Divisional Court determined that the Ministry of Northern Development and Mines did not meet their constitutional duty to consult when issuing a permit to the mining company, citing the community’s unfulfilled expectations 33 Far North Act, supra note 22.

of further engagement and desire to develop a memorandum of understanding in advance of exploration.[33]

Implementing UNDRIP, and FPIC in particular, means going beyond the predominant understanding of consultation and participation in resource management, requiring policy frameworks that emerge from intercultural engagement with Indigenous worldviews and ancestral connections to the land from which these rights emerge.[34] In the case of Canada, such engagement must also be closely linked to interpretation of Indigenous and treaty rights protected by section 35 of the Canadian Constitution.[35] These conversations reach beyond simply FPIC; they are discussions of true self-determination and, in the context of extraction, it is a matter of self-determined development.

Canada’s extraterritorial obligations on human rights

In recent years, international human rights law has affirmed that states have extraterritorial obligations[36] and that states should take all possible measures to support human rights. In the context of globalization, this means that states have to prevent and redress human rights violations committed outside their borders by private domestic actors, such as mining corporations. This is a very sensitive issue for Canada, a country that plays a significant role in extractive investments internationally, and particularly in Latin America. According to the Working Group on Mining and Human Rights in Latin America[37] on the impact of Canadian mining in Latin America, 57% of mining companies at a global level were listed on the Toronto Stock Exchange by 2012. Out of the 4,322 projects carried out by these companies outside Canadian borders, 1,526 were in Latin America. By 2013, the Latin American countries where Canadian companies were the most active were Mexico (S20 billion) and Chile ($19 billion). The Canada Brand Report identified incidents involving 28 Canadian companies during the years 2000-2015, which resulted in 44 deaths, 403 injuries, and 709 cases of “criminalization” (e.g. legal complaints, arrests, detentions, and charges) in Latin America.[38]

Various United Nations human rights treat)' bodies have observed the failure of Canada to prevent and redress these human rights violations.[39] Canada has failed to accept the recommendations that these treaty bodies have made in urging the government to adopt administrative legislative measures and policies to meet its extraterritorial obligations regarding the violation of human rights by companies domiciled in Canada acting outside that country, and to prevent, redress, and penalize such violations. The Inter-American Commission on Human Rights has had three hearings on the accountability of Canadian mining companies and has called on Canada to adopt measures to prevent multiple human rights violations.[40]

Until recently, Canada did not address the complaints of the affected communities and civil society organizations and their concerns about the detrimental impact of these mining projects on human rights. Canada has in fact continued to foster these investments through the functions of Export Development Canada, trade agreements, and diplomacy. Two initiatives currently promoted in Canada provide some hope that there could be a change in this state pattern of violating the rights of Indigenous Peoples nationally and internationally. One initiative is the Trudeau government’s creation of the Canadian Ombudsperson for Responsible Enterprise (CORE) [41] whose mandate is to address complaints related to allegations of human rights abuses arising from a Canadian company’s activity abroad. The CORE will undertake collaborative and independent fact- finding, make recommendations, monitor implementation of those recommendations, and report publicly throughout the process.[42] The other initiative is the preliminary approval in June 2018 of Bill C-262, An Act to Ensure That the Laws of Canada Are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples, promoted by the Cree MP Romeo Saganash.[43] The Bill acknowledged the need for full application of the UNDRIP in Canada without qualification. The approval and implementation of these initiatives would contribute substantially to the implementation of UNDRIP, including the principles of FPIC, both in Canada and abroad, in regions such as Latin America where Indigenous Peoples are significantly impacted by Canadian extractive enterprises.

Policy recommendations

To conclude this chapter, we would like to offer our policy-related reflections for the advancement of FPIC and the monitoring of Indigenous rights in Canadian mining activities across the Americas, with attention to host countries of mining investments, such as Chile. Despite a succession of Supreme Court of Canada rulings in favour of Indigenous Peoples and their land rights, Indigenous Peoples are still unable to enjoy their rights to self-determination and self-determined development. We continue to observe that Indigenous Peoples in Canada have to enter into the Canadian legal system, often with protracted efforts of 10 years or more,[44] to assert their basic rights and to defend their Indigenous laws and jurisdiction over their traditional territories. Indigenous Peoples’ inherent rights continue to be violated and Indigenous Peoples are forced to spend their time in state courts defending the inherent and treaty rights and those rights now outlined in the UNDRIP, such as FPIC.

We are, however, at a juncture with the growing internationalization of Indigenous rights and domestically, within Canada, the Truth and Reconciliation Calls to Action[45] and the federal government’s current rhetoric of the full implementation of UNDRIP without qualification. Romeo Saganash’s Private Member Bill C-262 to harmonize UNDRIP with Canadian law was a promising step forward; however, the ultimate failure of the bill is indicative of the significant work that will be required to redress and align Canadian laws and policies across diverse contexts. Importantly, this political opportunity is premised upon the acknowledgement that reconciliation is contingent upon the ftill recognition and respect of Indigenous ontologies and Indigenous laws. Challenges faced by Chile regarding mineral activity on Indigenous lands and territories have also been highlighted. The right to FPIC, including consultation and the full recognition of Indigenous rights to define priorities in their own development, must be acknowledged in extraterritorial relations. Human rights impact assessment of mining projects, both in the context of free trade agreements that facilitate Canadian mining investments in Chile, as well as of specific mining projects, are needed.

The demand for lands and resources on Indigenous territories is not going to go away. Indigenous Peoples occupy 24% of the world’s land mass and territories that hold 80% of the world’s biodiversity.[46] A strategy is needed to ensure stronger rights recognition to support Indigenous communities that are faced with this ongoing demand. If the traditional territories of Indigenous Peoples are destroyed, their rights to land and livelihood and their right to practice and preserve their cultures for future generations are violated. Proponents of extrac- tivism, governments, and industry fail to adequately consider these rights from an Indigenous perspective, in particular through the lens of Indigenous legal systems and traditions. Extractivism is founded on capitalist logic with attention to Western views of economics. For the right to FPIC to be fulfilled, an Indigenous lens must be included in current processes. The realization of the potential of the UNDRIP, and the fulfillment of the principles of FPIC, will require a deep and respectful understanding of Indigenous laws and their meaning and practice in the intersection of proposed development and community consultation and decision-making.

The UN Declaration is the minimum standard for the recognition of Indigenous Peoples’ inherent right to self-determination. For Indigenous Peoples’ full human rights to be recognized, Indigenous Peoples must be at the table. Indigenous Peoples must be consulted early and often, at every stage of proposed development. FPIC must be considered as the norm. Indigenous Peoples must not just be invited to meetings or consultations; Indigenous Peoples and Indigenous voices must have legitimate power in decision-making processes. This will require innovative intercultural approaches that challenge the capitalist logic of extractivist imperialism in recognizing and applying Indigenous law and rights frameworks to self-determined development.

Summary

Over the last decade there has been a growing internationalization of Indigenous rights emerging in tandem with growing global pressure of extractivism on Indigenous lands. Canada, as one of the largest players in global mining and forestry, is called upon to examine its performance in implementing UNDRIP and observing Indigenous rights to FPIC in communities affected by Canadian extractivism. In this chapter, we provided a brief commentary on two case studies, which highlighted the Pan-American comparatives of industry processes and impacts. Based on our case study observations, we have identified strong parallels of rights violations and the challenges to the enjoyment of the rights to FPIC and self-determined development. Despite the variance in political structures, economic and social realities, and the cultural and geographic distinctions between the Indigenous communities in a region of northern Chile and a region of the far north of Ontario, Canada, we observed parallel issues of (1) a lack of consultation and information; (2) inducement and division; and (3) environmental impacts.

Indigenous law and respect for, and protection of, cultural lifeways are violated both in Canada and Chile through consistent failure of states and industry to appropriately consult with Indigenous leadership; through their failure to respect Indigenous community norms and Indigenous visions of self-determined development; and their consistent failure to implement, in good faith, international Indigenous rights standards such as UNDRIP and ILO Convention 169.

As Canada comes under increasing international scrutiny from the United Nations and human rights organizations, further research needs to be conducted to monitor the potentially promising impact of the Calls to Action of the Canadian Truth and Reconciliation Commission, the fledgling efforts to harmonize Canadian law with UNDRIP, and the formation of CORE. During this period of reconciliation, there is a strong need for a broader and deeper intercultural understanding of Indigenous rights from the perspective of Indigenous Peoples and Indigenous law to advance self-determined development and the regulation of extractivism within an Indigenous rights framework.

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  • [2] James Anaya, International Human Rights and Indigenous Peoples (New York: Aspen, 2009)[Anaya 2009]; Josd Aylwin, Matias Meza- Lopehandia & Nancy Yanez, Los pueblos indigenasyel derecho (Indigenous Peoples and the Law) (Santiago: LOM Ediciones, 2013); Claire Charters & Rodolfo Stavenhagen, Making the Declaration Work: The United Nations Declarationon the Rights of Indigenous Peoples, IWGIA Document no. 127 (Denmark: International WorkGroup for Indigenous Affairs, 2010).
  • [3] El Observatorio Ciudadano and Oxfam, “Canadian Mining Projects in the Territory of theDiaguitas Huasco Altinos agricultural community in Chile: Human Rights Impact Assessment”(2016), online (pdt): Oxfam [Observatorio, 2016].
  • [4] UNDRIP, supra note 1 art 43.
  • [5] Indigenous and Tribal Peoples Convention, 1989 (27 June 1989), 1650 UNTS, 5 September1991 [ILO #169, 1989].
  • [6] James Anaya, “Statement upon Conclusion of the Visit to Canada: United Nations SpecialRapporteur on the Rights of Indigenous Peoples” (15 October 2013), online: James AnayaFormer United Nations Special Rapporteur on the Rights of Indigenous Peoples at para 12;James Anaya, “Report of the Special Rapporteur on the Rights of Indigenous Peoples, JamesAnaya, on the Situation of Indigenous Peoples in Canada” (7 May 2014), online: James AnayaFormer United Nations Special Rapporteur on the Rights of Indigenous Peoples
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  • [18] Veltmeyer & Petras, supra note 15.
  • [19] Government of Canada, “Comprehensive and Progressive Agreement for Trans-Pacific Partnership” (2018), online: Government of Canada [Govt,of Canada, 2018a].
  • [20] Jed Chong, “Resource Development in Canada: A Case Study of the Ring of Fire” (2014)Economics, Resources, and International Affairs Division, Parliamentary Information andResearch Service: Library of Parliament Background Paper No. 2014-17-E.
  • [21] Ontario Chamber of Commerce, “Beneath the Surface: Uncovering the Economic Potentialof Ontario’s Ring of Fire” (2014), online (pdf): Ontario Chamber of Commerce .
  • [22] Far North Act, 2010, SO 2010, c 18.
  • [23] ILO #169, 1989, supra note 5.
  • [24] Supra note 3.
  • [25] Focus Group conducted by Mitchell et al. during the FPIC Conference held at the MatawaFirst Nations Management Office in Thunder Bay, Ontario, Canada, on 27 October 2016.
  • [26] Mining Amendment Act, 2009, SO 2009, c 21 - Bill 173.
  • [27] Focus Group conducted by Mitchell et al. during the FPIC Conference held at the MatawaFirst Nations Management Office in Thunder Bay, Ontario, Canada, on 27 October 2016.
  • [28] Office of the High Commissioner for Human Rights, “Guiding Principles on Business andHuman Rights: Implementing the United Nations 'Protect, Respect, and Remedy’ Framework” (2011), online (pdf): United Nations Global Compact .
  • [29] Terry Mitchell & Dawn Maracle, “Healing the Generations: Post-Traumatic Stress and theHealth Status of the Canadian Aboriginal Population” (2005) 1:2 Journal of AboriginalHealth 14.
  • [30] John Borrows, “Indigenous Legal Traditions” (2005) Journal of Law and Policy 19.; MichaelCoyle, “Indigenous Legal Orders in Canada: A Literature Review” (2017) 92 Law Publications 1.
  • [31] Blaser, Fleit & McRae, supra note 17.
  • [32] Veltmeyer, 2012 supra note 14.
  • [33] Thomas Isaac & Arend JA Hoekstra, “Proponents and Government Compromise Consultation under Ontario’s Mining Act in Eabametoong First Nation v Minister ofNorthern Development and Mines” (25 July 2018), online: Cassels Brock Lawyers .
  • [34] Marie Battise, Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2011); B.Fry & Terry Mitchell, “Towards Coexistence: Exploring the Differences between Indigenous and Non-Indigenous Perspectives on Land” (2016) 23 Native Studies Review 35.
  • [35] James Youngblood Henderson, Indigenous Diplomacy and the Rights of Indigenous Peoples:Achieving UN Recognition (Vancouver: Purich, 2008).
  • [36] Meghna Abraham et al., “Maastricht Principles on Extraterritorial Obligations of States inthe Area of Economic, Social and Cultural Rights” (2011) 29:4 NethlQHR 578.
  • [37] Supra note 13.
  • [38] Shin Imai, Leah Gardner & Sarah Weinberger, “The ‘Canada Brand’: Violence and CanadianMining Companies in Latin America” (2016) Osgoode Hall Law School Working Paper Justiceand Corporate Accountability Project.
  • [39] UN Committee on the Elimination of Racism, Concluding Observations on the 21st to 23rdPeriodic Reports of Canada: Committee on the Elimination of Racial Discrimination: Draft/Prepared by the Country Rapporteur, CERDOR, 2017, C/CAN/CO/21-23.
  • [40] Imai, Gardner & Weinberger, supra note 39; Inter-American Court Human Rights, “HumanRights, Indigenous Rights and Canada’s Extraterritorial Obligations: Thematic Hearing forthe 153rd Session of the Inter-American Commission on Human Rights” (2014), online:.
  • [41] Global Affairs Canada, “The Government ofCanada Brings Leadership to Responsible BusinessConduct Abroad” (17 January 2017), online: Government of Canada
  • [42] Ibid.
  • [43] Bill C-262, An Act to Ensure That the Laws of Canada Are in Harmony with the UnitedNations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42th Pari, 2018 (third reading 30 May 2018) [Govt, of Canada, 2018b].
  • [44] Attorney General of Quebec v Moses, 2010 SCC 17; Tsilhqot’in Nation v British Columbia,2014 SCC 44.
  • [45] Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission ofCanada: Calls to Action” (2015), online (pdf'): .
  • [46] World Bank, “The Role of Indigenous Peoples in Biodiversity Conservation: The Natural butoften Forgotten Partners, Written by Claudia Sobrevila” (2008), online: World Bank < https://siteresources.vvorldbank.org/INTBIODIVERSITY/Resources/RoleonndigenousPeoplesinBiodiversityConservation.pdf>.
 
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