The Transformative Potential of Indigenous-Driven Approaches to Implementing Free, Prior and Informed Consent: Lessons from Two Canadian Cases

Martin Papillon,Thierry Rodon

doi:10.1163/15718115-02702009

Martin Papillon, Thierry Rodon

Open Access

https://doi.org/10.1163/15718115-02702009

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Abstract

While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the implementation of the principle of free, prior and informed consent (fpic) remains contested. As the comparative literature shows, if and how fpic is implemented depend both on the institutional context and on the agency of actors involved. Faced with deep power asymmetries and strong institutional resistance to their understanding of fpic as a decision-making right, a number of Indigenous groups in Canada have taken advantage of the uncertain legal context to unilaterally operationalise fpic through the development of their own decision-making mechanisms. Building on two case studies, a mining policy adopted by the Cree Nation of James Bay and a community-driven impact assessment process established by the Squamish Nation, this article argues Indigenous-driven mechanisms can be powerful instruments to shape how fpic is defined and translated in practice.

Highlights

While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the principle of free, prior and informed consent remains a contested norm
Building on two case studies, a mining policy adopted by the Cree Nation of James Bay and a community-driven impact assessment process established by the Squamish Nation, this article argues Indigenous-driven mechanisms can be powerful instruments to shape how fpic is defined and translated in practice
Faced with an uncertain and contested field, Indigenous peoples are increasingly asserting their own vision of fpic through their own mechanisms, to give fpic meaning in practice. We suggest this process of norm definition though practice involves a framing strategy – in order to give meaning to the norm in public discourse – and an institutional strategy, that is the act of creating a process for expressing free, prior and informed consent in a manner that corresponds to their understanding of the norm and their own governing procedures

Summary

Introduction

While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the principle of free, prior and informed consent (fpic) remains a contested norm. 1 C.M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge, New York, 2015); A. Tomaselli, ‘The Right to Political Participation of Indigenous Peoples: A Holistic Approach’, 24:4 International Journal on Minority and Group Rights (2017) pp. Prior and Informed Consent (fpic) as a Contested Human Rights Practice in Bolivia’, 38:5 Human Rights Quarterly (2017) pp. Grugel, ‘The Politics of Indigenous Participation Through ‘Free Prior Informed Consent’: Reflections from the Bolivian Case’, 77 World Development (2016) pp. Rodon, ‘Indigenous Consent and Natural Resource Extraction: Foundations for a Made-in-Canada Approach’, Choice (2017), international journal on minority and group rigDohwtnlsoa2de7d (fr2om01B9ril)l.c3om1411-/3032/52021 02:40:31PM via free access

Papillon and Rodon

The Politics of Indigenous Consent

Indigenous Participatory Rights in Canada

Conclusions