Political Rhetoric Meets Legal Reality: How to Move Forward on Free, Prior, and Informed Consent in Canada

The issue of free, prior, and informed consent (FPIC) from Indigenous communities affected by resource projects has recently received renewed attention in Canada. Indeed, during Canada's 2015 election, Liberal leader Justin Trudeau had gone so far as to say that a “no” from an Indigenous community would assuredly result in a project being cancelled. He soon backed away from this promise by emphasizing only the need for consensus. This report seeks to clarify the meaning behind FPIC and what it would entail to implement it in Canadian law. Legal realities, both within Canada and internationally with the FPIC concept in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) itself, should be taken into account. Canada already has a judicially-developed duty to consult framework, which in certain circumstances requires something close to consent, such as when the rights in question are particularly strong or when consent is substituted for consultation, such as via negotiations with third-parties like resource developers. Equally important, consultation currently applies to a much wider range of circumstances than is reasonably possible under consent. By narrowing this scope, adapting consent into this legal framework could therefore actually reduce Aboriginal and treaty rights for Indigenous communities. A more careful reading of UNDRIP also shows that FPIC does not require consent for a project to proceed, but instead requires meaningful good faith efforts to obtain consent. It is also only applicable to a narrower range of circumstances to lands that are owned by Indigenous communities, as opposed to those that have asserted claims. On this issue, Canada already meets or exceeds UNDRIP’s requirements for FPIC – by applying the duty to consult framework over lands over which there are asserted claims, and by applying something close to consent in certain circumstances. Operationalizing FPIC in the Canadian context would pose important, and often forgotten, challenges. First, it would require extensive foundational work in various sectors, including identifying the extent of its applicability on various projects and whose consent is ultimately required, especially in cases where there are internal divisions within an Indigenous community or multiple communities with divergent views. Second, Canada has a federal system of government, and the provinces and territories actually have jurisdiction over many areas that would be affected by FPIC, such as natural resources. Operationalizing FPIC would therefore require a decentralized approach in Canada.

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