Free, Prior, and Informed Consent: The Basics

Introduction

In June 2021, Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act, making the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) law in Canada. At the time there was a lot of disagreement about what effect UNDRIP would have in Canada, especially about one of the Declaration’s key concepts: free, prior and informed consent (“FPIC”). 

A good starting point to better understand what FPIC is, when it applies, and what impact it might have, is a 2018 study called "Free, prior and informed consent: a human rights-based approach."  The study was put together by the United Nation's Expert Mechanism on the Rights of Indigenous Peoples ("EMRIP"). I’ll refer to it as “the Study.” It’s important to understand that the Study isn’t the “be all and end all” summary of FPIC, but as its authors state, it’s meant to build on other studies and publications which give guidance on the principle to States and Indigenous peoples (paragraph or “para” 2 of the Study). Therefore, it’s a good place to start.

As I summarize the Study, my aim will be to focus on its first two sections that are the most relevant for an introduction to FPIC. We will look at the human rights basis for FPIC, then look at its status as a “human rights norm”: its motive, scope, elements, and when FPIC is required.

Background

1. The Human Rights Basis for FPIC

The first thing to note is that FPIC is not a new principle created by the UNDRIP! Rather, the Declaration restates the human rights of self-determination and freedom from radical discrimination to Indigenous Peoples’ context. While Indigenous Peoples always have had authority to create binding agreements between themselves and other states, this power has been undermined and continues to be difficult for them to exercise, mainly because of ongoing effects of colonialism (para 4).

FPIC includes principles of freedom, full disclosure of information, and having the right to say yes or no. It also means that Indigenous Peoples themselves should have control over their own lands and resources (para 7). In recognizing these principles, FPIC serves as a way to make the right to self-determination effective and helps address the unique historical, cultural, and social situation of Indigenous Peoples (para 7).

The 1997 Committee on the Elimination of Radical Discrimination identified racial discrimination as the main source of the discrimination Indigenous Peoples face. As a result, the Committee said the human rights principle of requiring ‘consent’ is vital in confronting and breaking down structures of marginalization and racism. This includes destroying racist ideas as the Doctrine of Discovery (para 9) which authors such as John Borrows argue – and which Canadian Courts are beginning to acknowledge – still form the foundation of the Crown’s claim of sovereignty in Canada.

2. FPIC: A Human's Right Principle

What does it mean to say FPIC is a human rights principle? In this section, we look at its motives, focus, and scope.

(a) The Motives of FPIC (Its “Rationale”)

1. To restore Indigenous Peoples' control over lands and resources. This is seen in article 28 which calls for compensation for territory taken without a group’s free, prior, and informed consent (i.e., their “FPIC”). Article 28(2) states this "repayment” should ideally be lands, territories, and resources of equal quality, size, and legal status. When such land isn’t available or there’s a different agreement made, compensation can be in the form of money or something else.

2. FPIC is a way to restore Indigenous Peoples’ cultural integrity, pride, and self-esteem (Article 11).

3. FPIC can serve as a vital tool for addressing the power imbalances between Indigenous peoples and States (para 11). In their submissions to the EMRIP for the Study, the Canadian Assembly of First Nations also pointed out FPIC’s potential to give Indigenous peoples more equal bargaining power in negotiations with corporations that want to engage in projects that affect their traditional territories.

(b) The Collective Nature of FPIC

While there is some recognition of individualized rights in UNDRIP, FPIC’s primary purpose is protecting Indigenous Peoples’ collective rights (para 12). This lines up with many Aboriginal rights and title in Canadian law, which the Courts consistently refer to as being “communal” and “collective” in nature. (See for example Delgamuukw v British Columbia).

(c) Scope of FPIC: The Three Rights

FPIC has three connected rights. If any are left out, FPIC cannot be achieved:

1. The right to be consulted

2. The right to participate

3. The right of Indigenous Peoples to their lands and resources

According to the Study, the right to be consulted means that any “project negotiation” or “consultation” should include 1. Good dialogue and 2. Mutual respect.  When a consultation happens, consent is always the goal (the “C” in FPIC, which we’ll discuss later) (para 15). The State has to make sure the consultation isn’t a one-time action, but an ongoing process of mutual respect (para 15).

As stated by the UN Human Rights Committee, the right to participate takes it a step further, to make sure that Indigenous Peoples are given consultation AND have the right to actually create their own initiatives and tools for setting their own priorities (para 18). From this, the adaptation of everyone’s right to take part in public affairs and access public services (ICCPR Article 25) to Indigenous peoples’ context found in UNDRIP Article 18 has two important purposes:

Purpose 1: To address the effects of “de jure” (the legal) and “de facto” (the actual) exclusion of Indigenous Peoples from public decision-making procedures (para 18).  For example, in Canada most “Status Indians” did not receive the right to vote in federal elections until 1960.

Purpose 2: To renew and restore Indigenous Peoples’ decision-making institutions that have either been disregarded or abolished (para 18). This is especially true in Canada where First Nations’ governing structures were greatly weakened and systematically undermined through things like the imposition of Band Councils under the Indian Act.

Lastly, the right of Indigenous Peoples to their lands and resources is integral to the principle of FPIC and for safeguarding their cultural identities (para 19).

The Elements (Why FPIC is called "F.P.I.C.”)

(a) Free

Consent should be FREE from both direct and indirect factors impeding a group's free will (para 20).  Every consultation process should have the following parts:

1. The process should be free of intimidation, coercion, manipulation, and harassment so that the process does not limit Indigenous Peoples’ access to existing rights, services, politics.

2. The relationship should be founded on trust and good faith, being free from any suspicion, threats, or prejudice to Indigenous Peoples.

3. Indigenous Peoples should have the freedom to be represented as required by their laws, traditions, and protocols.

4. Indigenous Peoples should have the freedom to direct and guide the consultation process, and to determine the course and manner of consultation.

5. Indigenous Peoples should be free to determine expectations and to contribute the defining methods, timelines, location, and evaluations (para 20). 

(b) Prior

PRIOR means that consultations and negotiations should be happening as early as possible. This includes:

1. Involvement of Indigenous Peoples as early as possible, beginning at the idea and design phase.

2. Consultation should give more than enough time for Indigenous Peoples to grasp, understand, and analyze the information. This should also include enough time for the group to engage in their own decision-making process (para 21).

(c) Informed

INFORMED means given the correct information. For a consultation to comply with this principle of FPIC it should include:

1. Information provided to Indigenous Peoples should be sufficient both qualitatively and quantitatively, and must be objective, accurate, and clear.

2. Information must be given in a form and manner that is understandable. For example, providing translations where needed.  It should also contain the scope and reversibility of the proposed project, the areas affected, and benefit-sharing proposals.

3. Lastly, and perhaps most notably, Indigenous Peoples should be given adequate resources and capacity to deal with information. In some instances, this may require building the capacity of the group concerned to understand their rights and to meet the technical challenges of the process (para 22)

(d) Consent

Once all of the above are met, CONSENT can be given (in other words their “permission” or “agreement”).  If any of the elements above are missing, any consent received won’t be considered valid. Where they have been respected and consent has been given, it should then be recorded clearly and in a manner consistent with the group’s laws, customs, and best practices (para 30).  This recording should capture vital details like a description of the method of notice, consultation, and participation that lead up to the consent (para 44).

Withholding Consent

It’s important to note consent can be withheld if:

1. Indigenous Peoples decide the proposal is not in their best interest. Refusing consent ensures their concerns and the risks of continuing are made known to the other parties.

2. There are flaws in the process. For example, Indigenous Peoples may withhold consent because proper procedures aren’t being followed during the consultation.

3. Indigenous Peoples may withhold consent as a means of indicating their legitimate distrust in the process or plan (para 26).

Crucially, the Study notes that arguments over if FPIC means Indigenous Peoples have a "veto" power are unhelpful. These arguments detract from the idea of FPIC as a process guided by Indigenous Peoples and that is sensitive to their expressions of legitimate concern made at any point in the process (para 26). As such, withholding consent can be a positive instrument for creating more inclusive, better-designed projects and procedures (para 27).

“Operationalization of FPIC” (FPIC in Action)

1. When Is FPIC Required?

Importantly, UNDRIP has six articles where FPIC is mentioned: 10, 11, 19, 28, 29, and 32. For example, article 32 requires FPIC for projects that relate to resource development directly on Indigenous Peoples' land and/or projects with external impacts that may affect them.

2. How Do We Decide When FPIC is Needed? (“The Proportionality Principle”)

The “proportionality principle” is used to guide when FPIC will apply under articles 19 and 32. The principle is based on the fact that “matters of broad societal application ‘may affect [I]ndigenous people in ways not felt by others in society’" (para 33). This means that some projects and proposals which impact core parts of Indigenous Peoples’ rights, survival, dignity, and wellbeing will engage the FPIC principle (para 33).

Factors to determine if a project triggers a need for FPIC:

1. The perspective and priorities of the Indigenous Peoples impacted.

2. The nature of the proposed activity or matter AND the potential immediate/cumulative impact on the Indigenous Peoples involved.

3. The historic injustices faced by the Indigenous Peoples in question (para 33).

Evaluations must begin from the perspective of the Indigenous Peoples concerned. They should play a leading role in determining if and to what extent the measure impacts them (para 34). The impact of a project is determined by looking at its nature, scale, duration, and long-term effects (para 35).

The level of consultation required is on a sliding scale, depending on the nature of the rights engaged. Where the rights engaged are significant or if a project is likely to have a significant, direct effect upon Indigenous Peoples’ lands, lives, territories, or resources, then consent is required (para 35).

3. FPIC and Canadian Law

Many of these principles of consultation and accommodation are ALREADY broadly seen in Canadian law. Principles like “the honour of the crown” (see for example Sparrow) and “the duty to consult” (see for example Haida Nation) create certain restrictions on governments’ behaviour when engaging in activity that impacts Indigenous Peoples’ rights or territories. In addition, the Study seems to somewhat endorse Canadian law on consent, as in paragraph 37 they specifically highlight the Supreme Court of Canada's (“SCC”) definition of consent in Tsilhqot’in.  

BUT it is worth noting the SCC’s ruling in Mikisew Cree First Nation (2018) seems to run somewhat contrary to UNDRIP article 19 and the proportionality principle. They seemed to conclude that, while Parliament/provincial legislatures may have a duty to consult when considering or implementing legislation that impacts the rights or territories of a First Nation, the duty to consult is rather narrow and challenging any decision for insufficient consultation would be extremely difficult for the First Nation. Knowing this, it’ll be interesting to see how the courts reconcile this ruling and other parts of Canadian law that are out of place now that UNDRIP is officially binding in Canada.

4. Actions Allowed WITHOUT Consent

It’s important to note the Study does allow a project to go ahead even without consent in limited circumstances. The Study specifically cites Tsilhqot’in in setting when consent may be overridden:

1. The government can show it carried out its duties, including the duty to consult.

2. The action in question is compelling and substantial from the perspective of the broader community.

3. The action will not substantially deprive future generations of the benefits of the land.

4. The principle of necessity and proportionality applies (para 39).

It’s worth noting, the Study excludes some valid actions/objectives of projects the SCC set out in Tsilhqot’in.  The Study states: “no valid public objective is found in mere commercial purpose, private gains or revenue-raising objective” (para 38).

5. Mechanisms for Documenting, Monitoring, Reviewing & Recourse

The entire process of getting free, prior and informed consent should be documented to ensure all steps in any agreement are accurately recorded (para 42). This process should be done in a way that’s consistent with Indigenous Peoples’ customary norms and traditional methods (para 42). Any agreement or consent should be seen as ongoing, allowing for review and renewal throughout (para 43). Additionally, mechanisms for monitoring and evaluating should be used regularly, and accessible options for addressing disputes or grievances that may arise should be made available.  These mechanisms should be designed with Indigenous Peoples’ input (para 45).

Conclusion

The EMRIP’s 2018 Study on FPIC is a key summary of what the process of obtaining free, prior and informed consent should include.  Like the Study itself, this blog is not a full summary of FPIC, or the state of Canadian law and how it relates to UNDRIP. The goal has been to provide readers with an easy-to-understand look at FPIC that’s intended to better equip any person interested in the subject. We’ve taken a look at a number of the key parts of the Study and commented on how they match up to current Canadian law. I conclude that while some Canadian law seems to match up with many of the principles of UNDRIP and FPIC, much more remains to be done on the path of reconciliation in Canada.