The Rationale for the Duty to Consult Indigenous Peoples: Comparative Reflections from Nordic and Canadian Legal Contexts

• Author: Christina Allard
• Pages: 219-237

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Arctic Review on Law and Politics

Vol. 9, 2018, pp. 25–43

*Correspondence to: Christina Allard, christina.allard@ltu.se

2018 Christina Allard. This is an Open Access article distributed under the terms of the Creative Commons

Attribution-NonCommercial 4.0 International License (https://creativecommons.org/licenses/by-nc/4.0/),

allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that

the authors are given credit, that the work is not used for commercial purposes, and that in the event of reuse or

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Citation: Christina Allard. ‘‘The Rationale for the Duty to Consult Indigenous Peoples: Comparative Reections from Nordic and

Canadian Legal Contexts’’ Arctic Review on Law and Politics, Vol. 9, 2018, pp. 25–43. http://dx.doi.org/10.23865/arctic.v9.729

The Rationale for the Duty to Consult

Indigenous Peoples: Comparative

Reections from Nordic and Canadian

Legal Contexts

Christina Allard*

Luleå University of Technology, Division of Social Sciences / Law, Sweden, and UiT - The

Arctic University of Norway

Abstract

Althoug h the standard of con sulting Ind igenous peoples in dec isions affect ing them is well root ed

internat ionally as wel l as in nationa l legal systems, diffe rent views a nd patterns of pr oblems are

associated w ith the conce pt and its pract ice. This p aper briey a nalyses a nd contrasts t he duty

to consult Ind igenous peoples t hrough a co mparison of t he three Nor dic countr ies Norway,

Finland a nd Sweden, and Canada. Based on dome stic legal sou rces, the foc us of the paper is to

explore the leg al foundation that has g iven rise to the speci c set of rules for the duty to cons ult,

that is, the r ationale beh ind the evolv ing of the r ules. The  rst nd ing is that t he rules d iffer

among the t hree Nordic countrie s, with Sweden being the on ly country that lack s specic rules.

Secondly, whereas Ca nada has develo ped its own duty to c onsult pri marily t hrough do mestic

case law, in the Nordi c countrie s, duty to consult i s related to inter national law obl igations.

Consultatio n duties that have evolved from dome stic law may be easier to accept th an “foreign”

regulat ions imposed on n ational lega l systems. T his could ex plain the r eluctance a mong the

Nordic States to acce pt specic consultation s with the Sami Parli ament and other Sami gr oups,

partic ularly in Sweden.

Keyword s: consultation; par ticipation; Indigenous rights; Sami rights; Aborigi nal rights;

Nordic law; Canadian law

Responsible Editor: Ha ns-Kristia n Hernes, UiT - The Arctic Univer sity of Norway,

Tromsø, Norway.

Received: April 2 017; Accepted: October 2017; Published: February 2018

Christina Allard

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1. Introduction

Consultation is an increasingly important aspect of Indigenous people’s law, including

in the Arctic region,1 its purpose being to engage in good faith and reach unanimity

and understanding. Rules concerning consultation are designed to build dialogu e; it is

expected that the State and affected Indigenous people try to reaching a mutually sat-

isfactory agreement in earnest. However, there is no specic formula for consultation

that works in all circumstances and across all jurisdictions, rather, its practice tends to

be country specic notwithstanding international attention on the matter.2 With re-

spect to the procedural side of Indigenous rights, consultation of indigenous groups by

a State can be seen as a key element in ensuring successful melding between groups in

bi- or multi-cultural societies. Consultation and participation are understood to form

the cornerstone of the ILO Convention Concerning Indigenous and Tribal Peoples in

Independent Countries, 1989 (hereinafter ILO Convention No. 169) and the basis for

applying other articles.3 Participatory rights have also been strongly promoted in the

UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007, especially the

concept of free, prior and informed consent (FPIC) of Indigenous peoples.4

Today there are many international documents that secure participatory rights

for Indigenous peoples, among which Articles 6 and 7 of ILO Convention No. 169,

which are legally binding to its parties, gure prominently. Consultations do not,

however, allow for “veto power” over developments,5 nor do they hold any prom-

ise that matters pivotal to the Indigenous community will be accommodated and

adopted. It has been argued that consultation as a procedure is not meant to consti-

tute an effective veto.6

The law, nevertheless, is evolving, both in the international and domestic spheres.

It should be noted that, in line with UNDRIP, there is presently a shift from consul-

tation to consent in international law, an issue that will not be addressed here. The

basic idea of FPIC is rather straightforward, but legally it is a contested and confused

concept.7 Whereas FPIC should be understood as an extension of already established

international standards regarding the participatory and consultation rights of Indig-

enous peoples,8 legislators and courts in the countries included in this study have

thus far not paid much attention to the concept. Notably, Canada rst voted against

the adoption of UNDRIP, primarily because of FPIC, but has recently started ad-

dressing and discussing implementation of UNDRIP as a means for transformative

change in state-Indigenous relationships (see Ch. 4). Even though domestic courts

have made general references to the Declaration, for instance, regarding its useful-

ness as an interpretive aid to Canadian legislation, courts have thus far been reluctant

to rely explicitly on the FPIC standard.9

Hence, this article seeks rst to analyse and contrast approaches to the duty to

consult Indigenous peoples in the Nordic countries, Norway, Finland and Sweden,

and then contrasts the different rationales for consultation with Canadian law and

practice concerning the duty to consult. In doing so, this paper describes the legal