Interpreting Free, Prior and Informed Consent as a Veto Power is the Best Route to Reconciliation: Blog

Free, prior and informed consent (“FPIC”) – it’s such a simple phrase with a seemingly singular meaning upon first reading. However, this phrase, which is mentioned specifically in six articles within the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), has garnered much debate about the nature of consent and the language that should be used to express this power. Whether it means merely a duty to have meaningful consultations or an absolute authority to veto certain actions remains a hotly debated topic among legal scholars and courts. With so much disagreement about what it really means and the language that should be used to express this right, this article will explore the current understanding of the doctrine both internationally and within Canada, then will advocate for the stronger interpretation and usage of the term “veto power” to help remedy the lingering effects of colonialism and re-calibrate the power imbalance that currently plagues many Indigenous groups across Canada.

What is free, prior and informed consent?

FPIC is a human rights norm grounded in the fundamental right to self-determination for Indigenous Peoples. With the international decolonization movement gaining momentum since the 1960s, providing the right to self-determination was seen as a way to restore autonomy to Indigenous communities. Providing Indigenous groups with the right to self-determination is one of the two the overarching principles of UNDRIP, with the other being the right to be free from racial discrimination. The right to FPIC should be seen as a method of operationalizing the right to self-determination, allowing Indigenous communities to make decisions for themselves and restore control over their lands, resources, and territories. With many Indigenous communities having special traditional and spiritual connections to their lands, the ability to control what activities take place on them is an important step towards undoing the harms of colonialism.

But this still leaves the question of what exactly does FPIC mean? Let’s start by breaking down the components within the common meaning of the words:

1. Free – Without coercion, intimidation, manipulation, or harassment

2. Prior – Before any action takes place

3. Informed – Both qualitative and quantitative information is provided clearly, accurately, and objectively

4. Consent – Permission or agreement to do something

The first three components are adjectives describing the circumstances that consent must be given in. The last component is the action itself: the Indigenous group must agree to an infringement of their rights in the specific circumstance, usually in exchange for something. Using this layperson understanding of FPIC, it seems clear that if the Indigenous group does not give its approval, then the action in question will not be allowed. If so, it would essentially be a veto power, giving Indigenous groups the authority to refuse actions solely on the basis that their consent is not being given. However, this is not the understanding that many legal scholars give to this phrase.

Despite FPIC being a core component of the right to self-determination, many legal scholars state that it instead merely imposes a sliding scale of required consultation depending on the nature, scale, duration, long-term impact, and effect on the lands, resources, territory, and cultural identity of the affected Indigenous group. One of the main proponents of this understanding is the former UN Special Rapporteur on the rights of Indigenous Peoples James Anaya. Acknowledging that very few human rights are absolute rights and that UNDRIP specifically contains provisions which allow the limitation of rights within the Declaration in article 46, Anaya advances the view that the principles of necessity and proportionality demand that rights provided for in UNDRIP can justifiably be infringed upon without the consent of the Indigenous group if certain requirements are met. Those requirements include the sliding scale of consultations, a compelling and substantial legislative objective in view of the broader public interest, and that the action will not deprive future generations of the Indigenous group from the use and enjoyment of their lands.

Despite UNDRIP not yet being formally implemented into Canadian federal law, Canadian courts have generally taken this light approach to infringement of asserted or established Aboriginal and treaty rights. When a government action infringes upon an Aboriginal right without consent, the court can find that the infringement is justified if there is a valid government objective and the government has met its fiduciary obligation to Indigenous Peoples. The success or failure of this justification analysis usually depends on whether the government has met its duty to consult and accommodate.

The duty to consult and accommodate follows the principles of necessity and proportionality in that there is a sliding scale of required consultations depending on the nature of the Aboriginal right and the degree of the infringement. When there is an asserted but yet to be proven Aboriginal right that seems to have legitimacy at face value, the government will be obliged to consult with that Indigenous group before infringing upon that right. The sliding scale of consultation can demand a minimum duty to merely discuss the matter for relatively minor breaches, all the way to the need for full consent from the Indigenous group for especially severe infringements. Beyond consultations, there is also the need to prioritize Aboriginal rights over the interests of the general public and the requirement to accommodate the Aboriginal right if possible.

Although article 46 of UNDRIP does allow for some form of limitation to the right to FPIC, Canada’s current justification framework goes well beyond this because it still forces Indigenous Peoples to work within a colonial governance system, almost entirely on terms dictated by the colonial government. While the previously mentioned safeguards protect Aboriginal rights to a certain degree, this justification framework still allows for the unilateral infringement of Aboriginal rights by a colonial government. It is the colonial government who decides the terms and procedure of the consultations, and the colonial justice system that determines whether there is an Aboriginal right and whether it has been justifiably infringed. In order to restore the nation-to-nation relationship between the Canadian government and Indigenous groups, FPIC should be given its true meaning where consent must be obtained before any infringement of an Aboriginal right.

Arguments for a Stronger Interpretation of FPIC Equivalent to a Veto Power

Another school of thought surrounding FPIC is that there must be mutual acceptance by both the government and Indigenous groups on matters that will infringe upon an Aboriginal right. At its most extreme, this would be a system where both parties must consent to any action that will infringe upon an Aboriginal right without the ability to circumvent the requirement of consent through imposing merely a duty to consult or a justification analysis. Effectively, this would be a veto power. Interpreting FPIC in this manner would restore some of the power to Indigenous groups that has been historically lost due to the power imbalance between the parties and assimilative policies, such as the allowance for the unilateral extinguishment of Aboriginal rights and the continuance of a justice system that relies on racist theories such as the Doctrine of Discovery.

Most academics and Indigenous leaders are adamant that FPIC is not a veto power because that implies that it is an absolute power. Human rights are generally not absolute; they are relative to one another and must be balanced. However, a few norms have risen to the level of universal acceptance, including the prohibition of genocide and apartheid. Canada’s treatment of Indigenous Peoples was an apartheid at best, with Indigenous Peoples still reeling from the leftover adverse effects of that system. Aboriginal rights should be given the same kind of treatment to counter the historical harms and restore some of the power to the original occupiers of the land. The gross violations of human rights that occurred throughout the development of Canada demand strong solutions; giving an absolute veto power to Indigenous groups would help restore the nation-to-nation relationship by giving Indigenous groups real bargaining power. It would force the government to operate on equal footing and take away some of the discretion that has been used by the courts to limit Indigenous rights in Canada. A veto power would not mean that Indigenous groups would not agree to anything, rather it will encourage the government to make reasonable proposals which seek to protect what Indigenous Peoples see as Indigenous interests from their own perspective.

It seems many are hesitant to advocate for a veto power because of the political compromise that they think is necessary to productively progress Indigenous rights. They state that curing unilateralism by giving the authority for unilateral action to another group would not be a productive step towards reconciliation. Additionally, the thought of an absolute veto power terrifies the government – it is one of the main reasons they initially objected to UNDRIP in 2007 and have called the Declaration merely aspirational. However, it is time that we restore the right to self-determination for Indigenous Peoples in Canada by providing them with significant authority that has the ability to seriously affect the direction of Canada. The general population of Canada needs to understand that in the present day, Indigenous interests should be of the utmost priority due to their original occupancy of the lands and subsequent systematic oppression and domination. Many Canadians are proud of the human rights leadership Canada has demonstrated on the world stage but fail to acknowledge our own gross violations right here at home. Providing Indigenous groups with an absolute veto power and a requirement that FPIC must be obtained is the best means to re-calibrate the power imbalance and restore the nation-to-nation relationship where both parties’ interests can be equally considered and accommodated on their own terms.

Resources

UN General Assembly A/HRC/39/62 – “Free, prior and informed consent: a human rights-based approach” 

 Michael J. Bryant – “The State of the Crown-Aboriginal Fiduciary Relationship: The Case for an Aboriginal Veto” 

 Michael Coyle – “From Consultation to Consent: Squaring the Circle?” 

Website of James Anaya – “unsr.jamesanaya.org” 

Jason Tockman – “Distinguishing consent from veto in an era of reconciliation” 

Paul Joffe – “’Veto’ and ‘Consent’ – Significant Differences 

Amnesty International – “Factsheet on Indigenous Peoples and Free, Prior and Informed Consent” 

Ken S. Coates and Blaine Favel – “Understanding FPIC” 

Sasha Boutilier – “Free, Prior and Informed Consent and Reconciliation in Canada: Proposals to Implement Articles 19 and 32 of the UN Declaration on the Rights of Indigenous Peoples” 

Submission of the Assembly of First Nations (AFN) on Free, Prior and Informed Consent (FPIC) for the Expert Mechanism on the Rights of Indigenous Peoples 

Course materials from Constitutional Law class and Aboriginal Peoples and the Law class