Sophisticated Marketing, Oil Companies and Indigenous Rights in Canada

With the Canadian government’s announcement that it intends to fully implement the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), alongside a 2014 Canadian Supreme Court decision that interprets the principle of  free prior and informed consent (FPIC) as requiring the permission of indigenous groups in most instances, and not simply an exercise in consultation, amidstproposals to extend pipelines,  there is a potent stew of issues that will play out in real life situations. What all of this means for indigenous rights is yet to be seen.

Yet, alongside these developments that are supportive of indigenous rights, oil companies have engaged in increasingly complex marketing and advertising approaches, according to research that was presented by AdamHarmes at the 2016 Congress of Humanities and Social Sciences. For instance: “Oil sector marketing initiatives found employees are more trustedspokespeople than CEOs. Their testimonials spoken before a backdrop of lush,forested areas are effective sales tools.”

As the push continues for permission to expand for instance, the Trans Mountain pipeline, the intersection of indigenous rights developments with oil company campaigns for support will play out in ways that test the strength of what the Canadian government intends in its announcement to fully implement the UNDRIP and the position the Canadian Supreme Court has taken on the meaning of FPIC.

Further information on Professor Harmes' research can be found at this link. 

FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

The Undetected Lion King

No everybody knows Solomon Linda; but you may know the song ‘the lion sleeps tonight’ right? Well, that is probably the moment when you think of Disney’s ‘The Lion King’ and ask yourself what Salomon Linda has to do with it.

Solomon Linda is a Zulu musician, who composed this song and he is a victim of intellectual property. While The Walt Disney Company earned millions of Dollar by using his song, he died poor in a Southafrican township. It is a tragedy and scandal that companies (like Disney) exploit traditional knowledge (TK) without obeying international legal standards.

However, the situation is tricky. One the one hand, immense treasures of TK exist, values that go beyond ethical materialism or consumerism and on the other hand, cruel market policy expedited by globalisation forces the competition of companies. Realisable regulations are needed to protect TK and enforce the indigenous right to determine what happens to traditional values, be it music, designs or handicrafts.

Article 11 paragraph 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UBDRIPI) marks the starting point for a bold approach. It implies the right to revitalize and develop cultural traditions and customs of indigenous peoples. The use of a traditional song in a successful animated film is quite a revival and a gain. The only way to guarantee that the utilization of a traditional song is not only a gain for the producing company but also for the composer, is to make an indigenous approval condition for the commercialisation. Within the Declaration and the ILO Convention 169, the achievement of the Free, Prior and Informed Consent (FPIC) could provide assistance. If states ensure that commercialisation of TK is only permitted if indigenous consent is granted, two beneficial aims could be achieved. A natural protection of the TK and the foundation of compensation. Therefore indigenous consent has to be interpreted as the power to decline or accept marketing strategies. By making the obtaining of indigenous consent obligatory for companies and states, the biggest obstacle would have been conquered.

FPIC, a legal affirmation of adequate socio-legal behaviour and decency, needs to become an every day practice in protecting TK. If this, or the truly implementation of the Declaration into national legal systems, were possible, you would have heard of Solomon Linda before.

Posted written by Lisa Albanis (LLM candidate, University of Buckingham).
Source The Guardian.