Global land rights: Canada’s missed opportunity

In late June last year the Supreme Court of Canada ruled unanimously in favour of the Tsilhqot’in First Nation, recognizing their historical right to control 1,750 square kilometres of land in the British Columbia Interior. This ruling not only buttressed the land rights of aboriginal communities across Canada, it also signalled the need for positive change for similar rights at the global level.

Yet, the Canadian government has continued to challenge in international negotiations the fundamental need for the “Free, Prior and Informed Consent” (FPIC) of affected communities when negotiating land-related transactions. Unfortunately, this resistance has drastically impacted marginalized populations worldwide.

While the Canadian government has scorned the need for international regulations that would entrench FPIC, land-related industries have rapidly expanded through large-scale, transnational land acquisitions — largely unchecked. In Africa alone, this expansion equates to roughly 1.62 million square kilometres of land, an area 50 percent larger than Ontario. In the absence of adequate regulation, many of these transactions have been of an inequitable nature for local landowners and have led to unfair compensation and life-threatening evictions.

These types of transactions are what some would call “land grabs,” and they are being carried out by a variety of investors in collaboration with governments worldwide. A recent and particularly egregious example is a plan by the Tanzanian government to set aside 1,500 square kilometres of the Masai’s grazing land for a Dubai-based luxury hunting and safari company. Although the livelihoods of some 80,000 Masai depend on this land and are therefore under threat, the deal has thus far been negotiated without their consultation, let alone their consent.

Cases like these represent human rights abuses, and have become part of a growing global phenomenon. As the demand for food, biofuels and wildlife tourism rises and the supply of prime land dwindles, the land market is becoming ever more globalized and in need of regulation. The Canadian government’s current position on this human rights issue has paradoxically been to acknowledge its importance, yet voice an unwavering opposition towards any international legislation that would give marginalized populations greater security through FPIC provisions.

Most recently, in October 2014, the Committee on World Food Security (CFS) endorsed a set of principles meant to guide equitable investment in agricultural land. The Canadian government was the only member country to oppose FPIC language in the final draft, asking for the weakened alternative of Free, Prior and Informed Consultation. Despite reiterating its opposition to the word “consent” at the CFS plenary session, Canada’s representative ended, somewhat ironically, by stating that “Canada believes in these principles and we look forward to working in partnership with all stakeholders for their advancement.”

The Canadian government’s palpable unwillingness to work “in partnership with all stakeholders” – notably in respecting the need for consent from marginalized groups and their right to retain their land – has been clearly outlined before, again and again. In Canada’s 2007 Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Canadian government outlined its ongoing concern regarding “free, prior and informed consent when used as a veto”, and in Canada’s 2014 Statement on the World Conference on Indigenous Peoples Outcome Document, the Canadian government (notably the only UN Member to raise objections) again noted its concern regarding the veto potential of FPIC which “would run counter to Canada’s constitution.”

Yet, over 100 scholars and experts in Canadian constitutional and international law disagreed with this fundamentalist interpretation of the word “consent”. Their 2008 Open Letter states that UNDRIP is “consistent with the Canadian Constitution and Charter … Government claims to the contrary do a grave disservice to the cause of human rights and to the promotion of harmonious and cooperative relations.”

The Tsilhqot’in Nation’s recent legal victory should have therefore marked an important turning point not only for Canadian aboriginal communities, but also for land-insecure populations everywhere. With the Canadian courts and every other UN member country on board, the Canadian government’s continued refusal to endorse the principle of FPIC is glaring, not to mention reprehensible in the face of this mounting human rights issue.