Overview

National laws, best practices guidelines and international declarations, such as the UNDRIP, are increasingly recognizing Indigenous peoples’ rights to exercise free, prior and informed consent (FPIC) with respect to activities affecting their traditional territories.¹⁵⁷
The elements of FPIC were articulated by the UN Permanent Forum on Indigenous Issues (in summary) as follows:¹⁵⁸

(a)Free – implies “no coercion, intimidation or manipulation”;¹⁵⁹

(b)Prior – implies that “consent has been sought sufficiently in advance of authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes”;

(c)Informed – implies that information provided in relation to the activity covers a range of important issues, including the “nature, size, pace, reversibility and scope of any proposed project or activity”; the reasons for the project; areas to be affected; and a “preliminary assessment of the likely economic, social, cultural and environmental impact[s]”; and

(d)Consent – has as its central feature good faith consultation and “full and equitable participation”.

FPIC is also recognized as requiring ongoing consent rather than a one-time seal of approval.¹⁶⁰ FPIC has been described as a “continuous, iterative process of communication and negotiation spanning the entire planning and project cycles”.¹⁶¹
Since the concept of FPIC was first acknowledged in the 1970s by the International Court of Justice, numerous jurisdictions have adopted legal provisions to support local communities’ rights to FPIC.¹⁶² FPIC is also becoming accepted as good business practice in the resource development sector. For example, the Chief Operating Officer of a significant gold mining company recently commented that community support can alter the valuation of a gold mine by an order of magnitude.¹⁶³ A 2011 study by the Wharton School at the University of Pennsylvania found a “direct positive and economically substantive relationship between financial market valuation and stakeholder relations”.¹⁶⁴ In August 2011, the International Finance Corporation (IFC), a member of the World Bank Group and major lender for international resource development ventures, began requiring its borrowers to adhere to the requirements of free, prior and informed consent.¹⁶⁵ The IFC’s Performance Standard 7 (Indigenous Peoples) provides that “the client will obtain the FPIC of the Affected Communities of Indigenous Peoples…” in a number of circumstances including in relation to the exploitation of resources on land under traditional ownership or customary use. ¹⁶⁶

Issue

Although the duty to consult and accommodate First Nations is required under Canada’s laws and Constitution, the free, prior, informed consent of the First Nation is currently not required.¹⁶⁷

Recommended Solutions

Require free, prior and informed consent for mining activities on traditional territories

[Tags: Consultation; Free, Prior and Informed Consent]
In BC, First Nations are usually entitled to be consulted about mining activities carried out on their traditional territories. However, the right to consultation rarely includes the right to consent or to withhold such consent. One exception is the requirement under BC’s Environmental Assessment Act to obtain the consent of First Nations who have entered into the fifth stage of BC’s six-stage stage Treaty Commission process.¹⁶⁸ As such, to date, consent must only be obtained from the First Nations governed by the Tsawwassen First Nation Treaty and the First Nations of the Maa-nulth Treaty.¹⁶⁹
By contrast, other jurisdictions have much broader consent requirements. For example:

• Under the Ecuadorian Constitution, Indigenous peoples are granted the right to free prior informed consent, within a reasonable period of time, on the plans and programs for mining activities carried out on their lands that could have environmental or cultural impacts.¹⁷⁰
• In the Philippines, the free prior informed consent of Indigenous peoples is required for all activities affecting their lands and territories, including the exploration, development and use of natural resources.¹⁷¹ The country’s mining laws clearly provide that “no ancestral land shall be opened for mining operations without the prior consent of the indigenous cultural community concerned”.¹⁷²
• Guyanese legislation requires consent to be obtained prior to authorization of mining on Indigenous lands, as does Peruvian legislation pertaining to protected areas.¹⁷³
• In Alberta, the consent of the Métis settlement council must be obtained before any exploration can be carried out on land within the boundaries of a Metis settlement.¹⁷⁴
• Legislation in a number of Australian states and territories has long mandated that consent be obtained in connection with mining on Aboriginal land through statutory, Indigenous-controlled Land Councils.¹⁷⁵
• In New Zealand, Maori consent must be given for all access (including access for only minimum impact activities) to Maori land regarded as waahi tapu (sacred areas).¹⁷⁶ Indigenous owners of Maori land also have an absolute veto right on all mining activities on their land (other than those with minimum impacts).¹⁷⁷

Require evidence of consent by way of negotiated agreement

[Tags: Free, Prior and Informed Consent; Agreement]
First Nations’ consent to a proposed mining activity can be evidenced by way of a negotiated agreement with the Crown or the proponent. The signing of such agreements is mandated under New Zealand legislation when mining activities are proposed on Indigenous peoples’ (Maori) lands.¹⁷⁸ An access agreement is also required under Australia’s Native Title Act where the right to negotiate applies.¹⁷⁹