Free Prior Informed Consent and Duty to Consult

January 20, 2014

As we begin 2014 we are wrestling with the notion of Free, Prior, and Informed Consent (FPIC) and the duty to consult with no veto. When the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) was drafted in 2007, it introduced the right to Free, Prior and Informed Consent for Indigenous Peoples. FPIC is one of the fundamental aspects of the Declaration and is included in six Articles. While all six Articles are significant, Article 32.1 is of particular interest to the federal government and the extractive resource sector in Canada:

Article 32.1
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free 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. UN Declaration for the Rights of Indigenous Peoples

In the context of Canada, the resource extractive sector derives much of its materials from the lands and waters of traditional lands of the Indigenous Peoples. There is an increase on the part of many levels of government to promote mining, oil and gas, LNG, forestry and fin fish aquaculture opportunities. The presence and effects of these industries frequently impact the lands and resources of Indigenous Peoples. In a nutshell, this means that it is very important that the right to free, prior, informed consent be understood if the UN Declaration on the Rights of Indigenous Peoples is to be honoured.

The decision-making process must be free of pressure or coercion. Peoples, Nations or communities must be given ample time to gather, and if necessary, translate information prior to being asked to make a decision. Consultation or discussions leading up to consent must be done within a timeframe that allows that People, Nation or community ample time for information gathering and consultation within the community in order for an informed decision to be made. Consent to an agreement for a project to proceed must be reached via a decision-making process or structure that is consistent with that individual People, Nation or community.

The challenge in the Canadian context is the difference between “consent” in FPIC and “consultation” as in the duty to consult. In the duty to consult there is no veto according to cases like the Haida decision. So what’s a resource developer to do given this difference in the international setting (FPIC) and the Canadian setting the duty to consult with no veto? The smart money is simple: don’t get bogged down in which standard to use and move your engagement activities toward the consent end of the spectrum as a way to hedge your bet and create economic certainty. Anything less and you leave yourself open to legal challenges and therefore project delays.

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