A new era: Free prior and informed consent

January 27, 2021 | Sandra A. Gogal

Canada’s unqualified adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in 2016 rang alarm bells for many prospectors and developers across Canada. It elevated the debate as to whether consent of Indigenous peoples would be required before conducting any mineral exploration or development activities and more importantly, whether permits were conditional upon receiving same. Unfortunately, the introduction of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (the “Act”) by the government of Canada on December 3, 2020, did very little to relieve this growing trepidation. Implementation of UNDRIP under the Act is left to an “action plan” to be developed over the next three years by Canada, in consultation with Indigenous peoples. While legislatures consult and debate harmonizing Canadian laws with UNDRIP, industry’s experience leads us to conclude that there will be little guidance in addressing the meaning of “free, prior and informed consent” (“FPIC”) and whether it must be obtained.

Industry has willingly accepted its delegated procedural duties to engage with Indigenous peoples and has forged an industry practice of negotiating impact and benefit agreements (“IBAs”), in the absence of any legal requirement or regulatory guidance. And now, in this new era of reconciliation, it will also need to embrace UNDRIP and apply its principles, norms and standards to its core operational activities involving Indigenous peoples, their lands and resources. Re-purposing or re-thinking the IBA such that it reflects FPIC, may be one way to proactively shape industry’s response to this call to action.[1]

Moving Towards an FPIC Agreement

The Truth and Reconciliation Commission’s Report, 2015, calls upon the corporate sector to adopt UNDRIP as a reconciliation framework and specifically, “to commit to meaningful consultation, building responsible relationships and obtaining the free, prior and informed consent of Indigenous Peoples before proceeding with economic projects. Not surprising, there is no road map to assist in fulfilling this commitment.

There are three categories of “Free, Prior and Informed Consent” referenced in UNDRIP, each dealing with access to lands and resources. The first category contains provisions requiring the State to obtain free prior informed consent : (i) where Indigenous groups are forced to relocate from their lands (Article 10); and (ii) where there is a plan to store or dispose of hazardous materials on their lands (Article 29 (2)). The second category requires the State to seek to obtain free prior informed consent through a process of consultation before undertaking certain activities which could affect their lands and resources (Articles 19 and 32(2)). The third category of FPIC provisions in UNDRIP address restitution for Indigenous peoples who have lost possession of their lands, suffered a loss of cultural, intellectual, religious or spiritual property without their consent (Articles 14(2) and 28(1)).

What is evident from reading the language used in these Articles, is a distinction between when FPIC is required and when it should be sought. FPIC is required where the impacts to Indigenous lands are considered significant and permanent [2] but is only required to be sought where undertakings have the potential to impact their lands; the latter being the desired outcome, not the end game. For those well versed in the duty to consult paradigm, this distinction also forms the basis of assessing the level and scope of consultation required under section 35 of the Constitution Act, 1982.  The greater the impact on an aboriginal right, the deeper the consultation required.[3] At the far end of the spectrum of analysis of impacts and rights, where an impact is significant on the established rights at stake, consent may be required.[4]

It is acknowledged that the assessment of the degree of impact of a particular activity on the rights of Indigenous peoples is not an easy task but one that is necessary for developing a meaningful consultation process, and in my view, an FPIC framework. In this new era, it will be equally important to articulate what FPIC means, how the parties will seek to achieve it and what steps will be taken if it is not obtained.

The recognition in section 4 of the Act that UNDRIP has application in Canadian law elevates the need to reconcile the substantive requirements under UNDRIP with the Canada’s consultation framework, in particular the duty under Article 32(2) of UNDRIP to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free prior and informed consent prior to the approval of any project affecting their lands or territories and other resources particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”  It is arguable that this is in principle, consistent with the duty to consult established in Canadian law, which is clear that indigenous peoples do not have a veto over project development pending proof of their land claims. “The Aboriginal “consent” spoken of in Delgamuukw is only appropriate in cases of established rights and then by no means in every case. What is required is a balancing of interests, of give and take.”[5]  Until such time as the courts weigh in on the application of UNDRIP post the passing of the Act, industry again has the opportunity, arguably an imperative, to pioneer a new best practice in developing a process that seeks to consult with Indigenous peoples in order to obtain their free prior informed consent.

Understanding and articulating what FPIC means for the parties in the context of each phase of development will be critical in the development of a workable FPIC framework. For this, one can readily obtain guidance from the principles articulated by our highest courts on what it means to conduct a meaningful consultation process. The procedural elements include similar foundational elements; consultation must be afforded prior to decisions being taken which could impact indigenous rights and requires access to information necessary to make informed decisions as to the nature of the impacts. “Consent”, while seemingly suggests a departure from the Canadian jurisprudence, aligns with consultation, if you invoke a less literal interpretation.

There is no universally accepted definition of FPIC and the definitions and practices related to FPIC are evolving. FPIC is neither an “end in itself” nor a “stand-alone” right per se but a derivative of the underlying substantive rights which it is designed to protect.[6] The Forest Stewardship Council has defined FPIC simply as:

“The right to participate in decision making and to give, modify withhold or withdraw consent to an activity affecting the holder of this right. Consent must be freely given, obtained prior to the implementation of such activities and be founded upon an understanding of the full range of issues implicated by the activity or decision in question, hence the formulation, free, prior and informed consent.” [7]

The emphasis should be placed on the process of arriving to “consent”, rather than on consent driving the process. Both the former UN Special Rapporteur on the Rights of Indigenous Peoples and the Expert Mechanism on the Rights of Indigenous Peoples (“EMRIP”), a body established to provide expertise and advice to the Human Rights Council on the rights of Indigenous Peoples under UNDRIP, support a flexible approach to FPIC, one “aimed at guaranteeing the effective participation of Indigenous people in decisions affecting them and the effective protection of their fundamental rights.”[8] An FPIC framework, in my view, is a process whereby both parties, collaborating in good faith, give equal weight and consideration for each other’s interests and in doing so arrive at consensus on whether a project should proceed.

If the outcome of that process is no consensus, and if FPIC does not equate to a veto, the company must determine whether it wishes to proceed in the absence of consent. This assessment can also draw upon the jurisprudence in Canadian law in determining whether an Indigenous community was adequately consulted. In my view, if after implementation of mitigation measures, the residual effect is a significant impact on Indigenous rights, to a degree of permanency or irreparability, such as that highlighted in Articles 10 and 29(2) and Delgamuukw, the lack of consent should be weighed heavily in favour of not proceeding with the project.

Summary

The fundamental need to respect and protect Indigenous rights is reflected in both our Constitution and in the UNDRIP. Under these enactments, both the duty to consult and the requirement to seek FPIC are grounded in procedural safeguards of substantive rights. While very much aligned, they are yet to be revered with equal force and legal recognition. The recognition and protection of Indigenous rights flowing from section 35 of the Constitution Act, have had nearly 50 years of judicial interpretation and enforceability. The full impact of implementing UNDRIP and its principles will take many more.

However, waiting 50 years for judicial interpretation of its principles, including the duty to seek FPIC, will be a travesty and frankly ignores the reconciliation imperative.  Industry has a unique opportunity to pioneer change and develop an approach to achieving FPIC in a manner consistent with its interpretation of its obligations and desire to enhance its Indigenous relations. [9]


This article is not intended to provide legal advice. Miller Thomson’s aboriginal law group has extensive experience in negotiating and drafting agreements with Indigenous peoples on project development and offers training programs on UNDRIP and FPIC . We would be happy to assist your organization in designing an FPIC framework.

[1] Truth and Reconciliation Commission of Canada: Calls to Action, 2015.

[2] This is not an exhaustive list of circumstances but a description flowing from Articles 10 and 29(2).

[3] Delgamuukw v British Columbia, (1997)3 SCR 1010 )

[4] See Delgamuukw, ibid, Haida Nation v, British Columbia,( Minister of Forests) (2004) 3 SCR 511 and Tsilhqot’in Nation v British Columbia (2014) 2 SCR 256

[5] Haida Nation, ibid, at para. 48.

[6] James Anaya. (2012). Report of the Special Rapporteur on the rights of indigenous peoples. UN

Document A/HRC/21/47, United Nations Human Rights Council, Geneva, available at

<https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session24/Documents/A-HRC-24-

41_en.pdf>

[7] Forest Stewardship Council, “Implementing free, prior, and informed consent (FPIC): A Forest

Stewardship Council Discussion Paper” (March 2018) at 5, available at <https://ic.fsc.org/filedownload.

fpic-discussion-paper-public-consultation-version.7489.htm

[8] Mauro Barelli, “Free, Prior, and Informed Consent in the UNDRIP: Articles 10, 19, 29(2), and (32(2)

in Jessie Hohmann and Marc Weller, eds, The UN Declaration on the Rights of Indigenous

Peoples: A Commentary (Oxford: Oxford University Press, 2018) at 263

[9] In addition to defining what FPIC means and how to achieve it, companies should be careful to address who is to provide FPIC and how it can be verified.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

Miller Thomson LLP uses your contact information to send you information electronically on legal topics, seminars, and firm events that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at privacy@millerthomson.com.

© 2021 Miller Thomson LLP. This publication may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested by contacting newsletters@millerthomson.com.