The power to consent: Indigenous peoples, states, and development projects

Abstract

The principle of free, prior and informed consent (FPIC) has become increasingly important in Indigenous peoples’ rights discourse. But continuing debates over the meaning of consent show the need for further clarification. In Part I of the article, I give a brief description of consent’s ‘standard grammar’ as developed in other areas of Western legal and ethical discourse to clarify what those who use the language of consent within that tradition commit themselves to, if they are to do so correctly. I also highlight the features that explain why consent has the potential to diminish coercion in relations of deep asymmetry. I argue that this potential is not related to the existence of an ‘absolute’ veto but, rather, to the specific way in which consent structures the interactions between the parties. In Part II, I turn to the Canadian context and the duty to consult developed by the Supreme Court of Canada. I make two main arguments: first, I show that that language is importantly different from consent and, second, I argue that though the Court in Tsilqoth’in Nation uses consent in a way that is closer to the standard grammar, the significance of this move remains limited. In Part III, I turn toward the UN Declaration on the Rights of Indigenous Peoples to assess whether it presents a better framework for the fulfilment of consent’s promise. I argue that not only is it possible to interpret the Declaration as formulating a conception of consent that follows broadly the standard grammar but also that this reading best fits the Declaration’s basic purposes. However, to develop a functional conception of FPIC, we need to face a challenge for which the grammar of consent has little answer: the often-contested character of Indigenous rights. I conclude by sketching three possible responses to that challenge.