Tag Archives: human rights

Permitting Reform? How About a Better Business Model?

From Phil Bloomer’s case for “tempered optimism” on business and human rights in the new year:

…2022 saw human rights gains in some key sectors, even as there remains room for considerable improvement. In 2023 our movement has a critical opportunity to hold together on climate change and the urgent energy transition. We all recognise that rapid shutdown of fossil fuels is an existential challenge, but divisions arise on how to achieve speed. Some activists advocate the inclusion of human rights ‘as long as it does not slow the transition’. But growing evidence shows we will only achieve a fast transition if it respects human rights and delivers real benefits to communities and workers. More responsible renewable energy companies are moving to adopt this effective business model by including shared ownership to build the stake of communities and workers in these projects. More troubling is the transition minerals sector, on which new renewable installations depend, where even the more responsible mining companies appear committed to ‘business as usual’ models – and that’s despite expensive permit suspensions and community protests against abuses.

Will the 118th Congress See A Green Right Coalition?

Yesterday’s post about Nancy Pelosi’s remarks on China belongs to one strand of a larger story that’s coming into focus.  It’s a story about China and human rights, to be sure, but also about what role human rights issues will play in the transition to renewables and in the politics of the transition.

House Republicans on the Natural Resources Committee have already cited reports of human rights abuses in China and in the Democratic Republic of Congo (where Chinese companies control cobalt mining operations) as an argument for boosting extraction of critical minerals here in the US. As the gavel passes in the coming year, their position is likely to attract even more support.

In fact, the 118th Congress could see the emergence of a Green Right coalition: hawkish on China, touting the magic of markets, openly hostile to the administrative state, and more interested in achieving energy dominance (to borrow a phrase from the Trump years) than in paying lip service to a just transition (as some Democrats do).  The incoming Chair of the House Energy and Commerce Committee, Cathy McMorris Rodgers, plans to “outcompete China on climate:” that phrase sums up a whole political and geopolitical agenda. 

The program could be a political winner: anti-China, pro-growth, industry-captured climate policy may accelerate organized labor’s rightward drift; and the Green Right may even enjoy an uneasy honeymoon period with more left-leaning advocates of permitting reform.

Over the past year or so, as Joe Manchin tried but failed to advance his permitting deal, reformers have shown themselves ready to take an axe to environmental law, they have regularly dismissed public opposition as NIMBY whining, and some of them have done more public advocacy for extractive industry than seasoned lobbyists and flacks could ever dream of doing. 

Pelosi on the Moral Authority to Talk about Human Rights in China, or Anyplace

Asked this morning about Republican plans to create a Select Committee on China in the coming year, Speaker Nancy Pelosi noted that there is already a bipartisan, bi-cameral committee on China and made this “statement” about human rights.

Corporate America has [been] largely responsible for the situation we’re in, in terms of the trade deficit and the rest…but from a standpoint of values, from the standpoint of economy, and from the standpoint of security, China poses a challenge to us….We want to work together on climate issues and the rest, but, but we cannot have our workers disadvantaged by China having prison labor manufacture products or contribute to the manufacture of products that just provide unfair competition for us….My statement is that if we refuse to talk about human rights in China because of economic issues, we lose all moral authority to talk about human rights anyplace in the world.

Predictably enough, the press conference moved on quickly from there. A follow-up question on legislation to ban TikTok failed to elicit anything more on US economic interests and human rights in China. Here’s video of the moment:

How did the DFC Handle Human Rights Concerns about Alto Maipo? Part Two

When presented with an opportunity to review human rights risks at a major hydropower plant in Chile, the Development Finance Corporation and affiliated international development banks reacted defensively and responded with boilerplate.

In a July post, I set out some context for records I received in response to a Freedom of Information Act request made to the Development Finance Corporation. It’s probably best to review that post before reading this follow up. Briefly, in August 2020, five UN Special Rapporteurs on Human Rights sent a detailed letter to DFC CEO Adam Boehler, warning of serious human rights risks at Alto Maipo Hydroelectric Project in Chile. The DFC is a major funder of the project.

A second set of responsive records, which DFC tells me is the final release, arrived yesterday. I’ve put them online here.

These are emails circulating within DFC and with other members of the Alto Maipo Lender Group in August and September, 2020, in response to the rapporteurs’ letter. The Santiago office of Norwegian bank DNB apparently received the letter first, on 18 August 2020, and emailed others in the Lender Group to alert them that it was on its way.

I don’t know what else the Office of Investment Policy (OIP) had heard about the Alto Maipo project before receiving Uauy’s email, or what exactly prompted OIP’s Jean Kim to remark “It Just keeps on coming.” Maybe Alto Maipo was already a source of concern or bureaucratic headaches, or maybe (given the email was sent at 8PM) it was just an especially busy day at the office.

The correspondence that follows Jean Kim’s email is pretty thoroughly redacted, making it difficult to assess the DFC response, but a few things are tolerably clear.

As suggested by Uauy’s email, DFC, DNB, International Finance Corporation, the Inter-American Development Bank, and other members of the Lender Group (like Germany’s KfW Development Bank and Brazil’s Banco Itau) will coordinate their response to the UN letter. The Lender Group’s Independent Environmental Consultant, ERM, will lead this effort.

ERM organizes a call to bring everyone up to speed, and after the call, a Social Risk Officer at DFC emails colleagues with a summary of the letter’s contents: “apparently the letter is claiming that the Project did not complete FPIC [Free, Prior and Informed Consent, as established in the UN Declaration of the Rights of Indigenous Peoples], amongst 5 other comments.” The 26 August chain of correspondence also includes a summary of a UN press release on the topic, with this quotation called out in bold:

“The Chilean Government would not be fulfilling its international human rights obligations if it prioritises economic development projects over the human rights to water and health,” said Léo Heller, UN special rapporteur on the human rights to drinking water and sanitation. He referred specifically to the Alto Maipo Hydroelectric Project, southeast of the capital, Santiago, and the avocado business in Petorca province in the Valparaiso, region north of Santiago.

Heller focuses his remarks on the Chilean government’s obligations to protect human rights. He goes on to suggest that steps taken by the government have been inadequate:

“Not only may this project reduce the main source of drinking water for residents of Santiago de Chile, it could also make air pollution in the capital worse,” Heller said, by damaging the “green corridor” of the Maipo River basin that has helped offset pollution.

During implementation of the project, which is due to come online in December, “although the Government has investigated damages to the environment no effective measure was taken to guarantee the human right to water for people affected by this megaproject”, Heller said.

There is clearly a role — or an opportunity — for the Lender Group to help the Chilean government address these challenges. As funders, the DFC and the Lender Group have a shared, concomitant responsibility to respect human rights in the economic development projects they back; to this end, DFC has its own environmental and human rights policies and compliance procedures in place.

But by September 4, the DFC appears to have assumed a defensive posture. “The letter,” writes Kate Dunbar of the Office of Investment Policy, “has reiterated key issues claimed by the opposition group throughout the Project.” She no doubt has in mind the group — “the opposition” — led by the Center for International Environmental Law, the Chilean NGO Ecosistemas, and Coordinadora No Alto Maipo. These organizations have been monitoring the project and raising concerns over human rights due diligence since its inception.

By September 21st, as the deadline for responding to the letter approaches, this defensive stance has hardened among some members of the Lender Group: the UN letter “contains a series of allegations than contain with [sic] no support whatsoever,” writes one member of the International Development Bank, dismissively. A strategy takes shape:

DNB is on board with the suggestion that the Lender Group keep the response non-confrontational, “high level and pointing to public information and bank’s general procedures.” ERM produces a draft and revisions follow, but all of that is redacted.

It’s hard to say how much these redactions could matter. Overall, the impression is that the Lender Group had decided, by late September, to stonewall. If that impression is mistaken, I welcome corrections. 

How did the DFC Handle Human Rights Concerns about Alto Maipo? A FOIA Request

An aerial view of the Alto Maipo Hydroelectric Project

Before the Trump years, few Americans had heard of Chilean mining giant Antofagasta plc or the powerful Luksic family who control it. Today, Antofagasta’s controversial plan to mine copper and nickel on the edge of the Boundary Waters and the scandals associated with it are not exactly common knowledge, but at least better known. Congressional hearings, activism, and investigative reporting helped bring the previous administration’s reckless, clumsy, and corrupt handling of Antofagasta’s permits into focus. (Maybe some of the records I obtained through the Freedom of Information Act helped, too.) But despite steps taken by the Biden administration to set right some of what the Trump administration did wrong in this case, the Antofagasta file is far from closed. The lobbying for reversals and permits continues apace* and important aspects of the story are still obscure.

A FOIA request I made on June 3, 2021 promises to shed some light on one aspect of the story, maybe nothing more than a minor detail, involving the Development Finance Corporation. The first set of records arrived last Friday. Nothing much so far, just some innocuous looking office email correspondence, but I’ve posted the records on documentcloud and will continue to put them up as they arrive. Here, I just want to set these records in context.

The story takes us back to 2013, the first year of Obama’s second term. That’s when Twin Metals Minnesota filed its mineral lease renewal application at the center of the current Boundary Waters controversy, and it’s also when the Overseas Private Investment Corporation, or OPIC, made a $250 million investment in the Alto Maipo Hydroelectric Project in Chile. At the time, the Luksic Group, owners of Antofagasta plc, held a 40 percent share in the mega-project.

This looks like nothing more than a coincidence. Antofagasta would not formally acquire Twin Metals until 2015; and the company would decide to get out of Alto Maipo in 2016 (though it took until 2020 to divest fully from the project). At most, the OPIC deal might have helped persuade Antofagasta that the Obama administration would look favorably on its North American plans.

In 2018, the Development Finance Corporation, or DFC, took over the OPIC portfolio of projects, investments that aim to alleviate poverty, combat corruption, and promote sustainable as well as low-carbon and no-carbon development. DFC also shares OPIC’s stated commitment to “respect the environment, human rights, and workers rights.” Its Environmental and Social Policy and Procedures document, produced in July 2020, shows remarkably little sign of the crude transactionalism that dominated foreign affairs, including foreign aid and investment, during the Trump administration.

Just one month later, on August 18, 2020, DFC’s statements of principle would be put to the test. The DFC was informed of serious human rights challenges at Alto Maipo Hydroelectric Project. Five UN Special Rapporteurs on Human Rights sent a five page letter to Adam Boehler, Jared Kushner’s friend and college roommate and the Trump-appointed CEO of the Development Finance Corporation, warning of possible human rights violations at Alto Maipo.

The letter is included as an Annex in written comments for the June 9, 2021 meeting of the DFC.

The UN Rapporteurs express concern that the Alto Maipo project hoards water for mining interests, hurts local communities, and is proceeding without adequate concern for human rights and the environment. The letter says the mega-project would reduce “the availability of water for human consumption and domestic use, in contexts already characterized by climate change and water scarcity.” The shortages could also affect subsistence agriculture, “resulting in violations of the right to food and other rights related to the right to an adequate standard of living.” The project appears to be proceeding without participation of the affected communities and with significant damage to biodiversity and the environment, and “multiple human rights violations” are likely to result.

Unable to find Boehler’s response to these claims, I filed a Freedom of Information Act request for “all DFC communications regarding the 18 August 2020 letter from UN Special Rapporteurs to DFC CEO Adam Boehler regarding the Alto Maipo Hydroelectric Project in Chile, including any and all communications to or from Mr. Boehler about the topic.” The few records included in the first FOIA production do not include anything from Boehler; they are a small set of emails to and from Catherine Andrade, DFC Corporate Secretary, in preparation for the June 9, 2021 DFC Board Public Hearing.

Alto Maipo was on the agenda for the day, as it was again at this year’s meeting. Groups that have monitored human rights and environmental issues around Alto Maipo were slated to participate: Juan Pablo Orrego, president of the organization Ecosistemas, and Carla Garcia Zendejas from the Center for International Environmental Law were among the presenters. Observers included representatives of BNP Paribas, Oxfam, US Small Business Administration, Accountability Council, and the Wildlife Conservation Society.

All indications are that this was a meeting Boehler’s DFC wasn’t especially eager to have. In April 2020, the DFC declared itself exempt from the Sunshine Act, which requires federal agencies to open meetings for public observation.

In response, the Center for Biological Diversity and other plaintiffs sued:

They say the rule change means that [DFC] no longer faces any obligation to provide communities with information that could later impact their environments and livelihoods.

The Center for International Environmental Law, a co-plaintiff on the suit, spent years working with communities affected by the Alto Maipo Hydroelectric Project, which Chilean activists argue would threaten the drinking supply of more than 6 million people in the Santiago Metropolitan Region. The OPIC granted $250 million in funding to the project in 2013.

“For many years, we worked to hold OPIC…accountable,” Carla Garcia Zendejas, the organization’s director of people, land and resources, said in an email, “ensuring that communities affected by the institution were able to secure access to information regarding the institution’s decision-making processes and to utilize the accountability mechanism when adversely affected….

Garcia Zendejas emphasized that the DFC’s new exemption “had very practical implications for communities on the ground who are seeking information about the projects that could upend their lives.”

Bill Snape, Senior Counsel of the Center for Biological Diversity, added that he could see little reason for the agency to try to exempt itself from the Sunshine Act, “unless you have things to hide.” The plaintiffs did not prevail, however, and in February of this year, Judge Christopher Cooper granted DFC’s motion to dismiss, writing that the Sunshine Act does not apply to the DFC. For now, at least, FOIA does.

* I looked at Q2 2022 lobbying for the Twin Metals project here:

No, the Shift to Renewables Will Not Be the End of Toil

Energy derived from sources like the sun, air, and water, on the other hand, is imbued with immense liberatory potential. In principle every house, farm, and factory could free itself from the grid by generating its own power. No longer would power lines and gigantic, leak prone tankers be needed for the transportation of energy; no longer would workers have to toil in underground mines or remote deserts or rough seas; there would be no need for the long supply chains required by fossil fuels. (Amitav Ghosh, The Nutmeg’s Curse, p. 102, emphasis mine)

Context makes it clear Ghosh is thinking of coal mining, oil fields, and offshore platforms when he dreams of a world where workers no longer toil. But in his reverie, Ghosh neglects an important and undeniable feature of renewable energy: it is mining intensive.

The IEA sees demand for critical minerals surging from 2020-2050 even as the demand for and value of coal drops. In green growth scenarios, workers will likely have to keep toiling in mines as they now do in Chile’s Atacama desert, the cobalt mines of the Democratic Republic of Congo, or the copper and nickel mines of South Asia, South America, or Siberia. The list of potential sacrifice zones will grow and could someday extend from American public lands to offshore oil platforms converted to deep-sea mining.

This observation is not an argument against the transition from fossil fuels. It’s just to say that right now there are no signs the shift to renewables will undo the resource curse. Extraction for global markets continues to exact a local toll: serious human rights violations, unremediated (or irremediable) environmental destruction, conflicts over water (which Ghosh himself mentions briefly in a list of “conflicts that global warming will create or exacerbate,” p. 127), and social division. And for the foreseeable future, mineral supply chains will be nearly as long as those required by fossil fuels, strung across the globe and fraught with geopolitical tension.

A decisive shift from fossil fuels could see the end of the petro-dollar and the toppling of “global hierarchies of power,” as Ghosh imagines: “The liberatory potential of renewable energy has a very important international dimension as well: if adopted at scale it could transform, indeed revolutionize, the current global order” (p. 103). It could also precipitate another set of crises – environmental, humanitarian, and military — and it’s worth considering that eventuality.

Postscript, 20 January 2022: For more on the geopolitical risks of the energy transition, see Jason Bordoff and Meghan L. O’Sullivan, “Green Upheaval The New Geopolitics of Energy,” Foreign Affairs, January/February 2022.

John Ruggie (1944-2021)

Word of John Ruggie’s passing prompted me to look back at the times I engaged with his work on business and human rights, including these ten posts, and to revisit the one instance I know of where he engaged with mine. This was an endnote he wrote, with a link to this blog, for Life in the Global Public Domain.

It was nothing more than a brief reference (“also see…”), but it made an impression on me. After all, who was I to John Ruggie? Not a student, not a colleague in any formal sense. We never even met. But I read him and respected his work; and to my great astonishment, he read me and repaid me in kind with a small, gracious gesture.

Here, the Business and Human Rights Resource Centre has collected tributes to John Ruggie from around the world.

More Meaningful Consultations: A Comment on the Biden-Harris Plan for Tribal Nations

The incoming administration promises to reinstate the tribal consultation mandate. More can be done to meet the standard set by the RESPECT Act and make consultations more meaningful.

Federal agencies are required to consult with Native American tribes (and with Alaska Native Corporations) on infrastructure projects — highways, dams, or railways, for instance — and on permits for mines, pipelines, and other industrial development projects when they affect tribal lands and interests. Consultation policies and practices vary from agency to agency, but in all cases these consultations are supposed to be “meaningful.” What makes them so needs to be carefully spelled out.

“To promote robust and meaningful consultation,” the Biden-Harris Plan for Tribal Nations promises to reinstate the Consultation mandate put in place by the Obama administration and “ensure that tribal consultations adopt best practices consistent with principles reflected in the RESPECT Act.” The Act in question is H.R. 2689, which languished in the House after being introduced by Representative Raul M. Grijalva of Arizona in the 115th Congress. The Act sought to establish, among other things, this Sense of Congress:

effective, meaningful consultation requires a two-way exchange of information, a willingness to listen, an attempt to understand and genuinely consider each other’s opinions, beliefs, and desired outcomes, and a seeking of agreement on how to proceed concerning the issues at hand; and consultation can be considered effective and meaningful when each party demonstrates a genuine commitment to learn, acknowledge, and respect the positions, perspectives, and concerns of the other parties.

The Act sets the bar for everyone involved. It describes meaningful consultation as deliberation among equals, a good faith undertaking to seek (but not necessarily reach) agreement together. It places more emphasis on recognizing different perspectives and positions than on reconciling them. It highlights a genuine and joint commitment to listen and develop understanding of each party and of the issues. Meaningful consultation will go well beyond mere transaction — or information exchange — to encompass learning and collaboration. Rooted in mutual respect, consultation can be both a dignifying encounter and an adventure.

The standard the RESPECT Act sets for meaningful consultation is worth reaching for right now, even if it remains to be seen whether Representative Grijalva will reintroduce the bill and whether the 117th Congress will make it law. Here are a few areas where work might begin.

  • Information ethics should develop with information systems.

A 2019 Government Accountability Office study of 21 Federal agencies discovered an information gap: agencies simply do not have accurate contact information for the appropriate tribal representatives. To remedy the situation, the GAO recommends that the Federal Permitting Improvement Steering Council develop a plan for establishing a central federal information system. While centralization might serve the FPISC goal of administrative efficiency, it can also raise significant issues around security and trust. Sharing control of data and data governance with tribes might help alleviate such concerns.

Information systems are already evolving to accommodate new collaboration technologies (like channel-based messaging and videoconferencing) to support consultation. Best practices still need to be identified and shared; and, just as importantly, inequities need to be addressed. As noted in the Biden-Harris plan, rural areas and reservations are disproportionately underserved by high-speed internet. It will take significant investment in broadband and 5G before new applications can be brought into the mix.

Where information technology can help consultation in other ways — with topological, geological, and archaeological reviews — other ethical considerations arise. Centering the discussion on shared data and published scientific information can help temper conversation and prevent powerful outside groups from exercising undue influence, but the model also has its limits. When scientific understanding appears to be incommensurate with tribal knowledge of the land, waters, and regional history, respectful consultation will strive to give both due consideration.

  • Dialogue will determine the value of information.

The text of the RESPECT Act itself could be amended to reflect its own sense of what makes consultation meaningful. The Act aims to “ensure that meaningful Tribal input is an integral part of the Federal decision-making process.” In this caption and throughout the Bill, the effect of the word “input” is to cast tribes as information sources, not full-fledged participants. Gathering or recording tribal input is only the first step at building dialogue, where information acquires meaning.

The colorless, technocratic term “input” appears to have found its way into the legislative lexicon via the Unfunded Mandates Reform Act of 1995 (Section 204), which calls upon agencies to “permit elected officers of State, local, and tribal governments…to provide meaningful and timely input.” Five years later, Executive Order 13175, still the touchstone for tribal consultation policies, moves beyond granting tribes permission to mandating “an accountable process to ensure meaningful and timely input.” This order does not, however, contemplate ways federal agencies might be accountable to their tribal counterparts, as they would be in a cooperative undertaking.

No surprise, then, that sixty-two percent of tribes surveyed by the GAO “identified concerns that agencies often do not adequately consider the tribal input they collect during consultation when making decisions about proposed infrastructure projects.” This finding appears to indicate that agencies cannot consider all by themselves the input they collect. Due consideration will take building “meaningful dialogue” — as a 2009 Presidential Memorandum on Tribal Consultation puts it — through “regular and meaningful consultation and collaboration.” It is best undertaken jointly.

  • Consultation still falls short of consent.

The 2007 UN Declaration of the Rights of Indigenous Peoples establishes that states “shall consult and cooperate with the indigenous peoples” to this clearly-stated end: “in order to obtain” Free, Prior, and Informed Consent. A 2010 State Department Announcement of US support for the Declaration fails to take into account the subordinating conjunction “in order to” and the purpose it unambiguously indicates, allowing only that the US understands the Declaration “to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” Instead of securing informed consent, as required by UNDRIP, the consultation process becomes a way of reserving discretion.

From the tribes’ perspective, as summarized in a 2017 study, consultation is merely box-checking unless undertaken with the aim of obtaining free, prior, and informed consent or at least reaching compromise. The Biden-Harris plan takes a step in this direction, promising to “uphold leasing and right-of-way regulations that strengthen tribal sovereignty and ensure tribal consent on tribal lands.” The plan makes no mention of the UN Declaration, however, and it remains to be seen how far this deference will extend.

Consent places front and center issues of self-determination, of autonomy and, in the context of government-to-government relations, sovereignty. One test of respect for self-determination comes when tribal leaders withhold consent or say “no,” as the obligation to obtain consent clearly implies the right to withhold it. Efforts to overlook or sidestep that obligation altogether are bound to diminish confidence that consultations will be appropriately heeded and outcomes will be just.

This serious shortcoming — which cries out for remedy — need not be a fatal flaw. “No” might signal a standoff or it might offer an opportunity to articulate and explore alternative plans. Good faith, constructive disagreement can test unexamined assumptions, illuminate unseen risk, and bring new interlocutors to the table. Agreeing to disagree need not mark the end of negotiation; it can indicate that parties will acknowledge differences, respect the distance they establish, and rejoin the dialogue.

Though consultations do not satisfy the human rights obligation to secure free, prior, and informed consent and do not necessarily yield agreements, they can help agencies take tribal interests into account and help tribes gain better understanding of (and some say in) decisions that affect them.

On a practical level, starting consultations early and returning to them throughout the life of a project can prevent conflict and costly delay further down the road. Just as importantly, consultation can help agencies gain much-needed perspective on emerging risks and complex problems, from economic and energy policies to food security and environmental protection.  And taking steps to improve tribal consultations might also raise the bar for other public consultations, making government a little more responsive to all citizens.

Ultimately, however, consultation will be meaningful only to the extent that all parties so find it.

Update: On January 26, President Biden issued an Executive Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, reinstating the consultation mandate. The Memorandum directs agency heads to consult with tribes before developing a detailed plan of actions the agency will take in this regard and to keep the OMB apprised of progress made against the plan.

Focus on Guantanamo

Here’s a very short film I just made for Amnesty International USA. On January 11th, a coalition of dedicated activists gathered in Washington, DC, to mark the 18th anniversary of the opening of the prison at Guantanamo Bay. Andrew Baker, DP/camera. Steve Mallorca, editor. Jeff Kryvicky, titles.

Palmater on the Right to Say ‘No’

The very first post I wrote for The Asking Project set out always take no for an answer as a cardinal rule of asking, and I’ve revisited that rule a couple of times since, drawing connections with Margaret Gilbert’s ideas of joint commitment, looking at the way saying no turns the ethical spotlight back on the person doing the asking and — most important of all — sets conditions for new respectful relationship.

There’s a strong connection between this (ethical) rule of asking and (legal) considerations of consent. This is complex territory, so an illustration might be useful. Consider, for starters, this piece Pam Palmater wrote back in October on the indigenous “right to say ‘no’,” as enshrined in the doctrine of free, prior and informed consent.

A little background. After a Canadian court ruled against the Trans Mountain pipeline expansion, the Trudeau government announced that instead of appealing the decision, it would undertake a consultation process with First Nations. Palmater accused the government of conducting a charade, of “using” or abusing this process “to force the expansion of this pipeline.”

Regardless of whether the new consultations are led by a former Supreme Court justice or Trudeau himself, Canada has already decided that the pipeline will be built, before ever talking to any of the impacted First Nations, including those that have asserted Aboriginal title. This renders our constitutionally protected Aboriginal rights meaningless. What legal value is the federal government’s constitutional obligation to consult, accommodate and obtain the consent of First Nations before taking actions that would impact our rights and title, if “consent” is interpreted as the right to say yes but excludes the right to say no? It makes no logical sense to interpret the law in such a way, especially to a constitutionally protected right.

Imagine if consent was interpreted this way in both the ordinary and legal understanding of the word “consent.” When a school sends home a permission form seeking a parent’s consent to allow their child to take a field trip, if the parent does not give consent, the school cannot allow the child to participate. Similarly, if a patient refuses to give consent to an operation to have their hip replaced, then the doctor cannot perform the operation. The absence of consent means no — in other words, a veto that has real legal power and meaning. Imagine if consent was interpreted in this illogical and diminished manner for sexual relations as it is for Aboriginal rights. Imagine if sexual consent in law meant that a man could consult with a woman on whether she wanted sexual relations, and was even willing to accommodate (“where appropriate”) her wishes about how to have sexual relations, but she had no right to say no — no veto over whether or not sexual relations occurred? That is called sexual assault and it is a crime.

The greatest injustices that have ever been committed against First Nations in Canada have resulted from denying the sovereign right of our Nations to say no. The right to have a real veto over infecting our blankets with smallpox; from scalping our people; from stealing our children and raping, murdering and torturing them in residential schools; sterilizing our women and girls; from the forced adoptions of our children into white families during the Sixties Scoop; to the murders and disappearances of our women and girls; to forced human trafficking and now the destruction of our lands and waters for profit.

The right to say no is an inherent part of the legal concept of consent. To interpret this concept otherwise is racist, discriminatory and self-serving, not unlike the doctrines of discovery and terra nullius. Surely, even the Supreme Court would not interpret their own decisions in such an impoverished manner. To do so would render Section 35 [of the Constitution Act, protecting First Nations rights] an empty shell of a constitutional promise.