Development Divided: Exploring the Meaning of Free, Prior and Informed. Consent by Indigenous Peoples in Resource Development.

Abstract

In 2007 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly. At the time, Canada held an objector status to the Declaration. The Harper government feared that UNDRIP’s provision requiring governments to seek Indigenous communities’ “free, prior and informed consent” (FPIC) before approving projects would severely constrain resource development by granting too much power to Indigenous communities. It was not until 2016 following the election of Prime Minister Trudeau that Canada announced its full support of UNDRIP without qualification. While the adoption marks a significant shift in policy, the Trudeau government has not clearly illustrated how UNDRIP’s provisions will be implemented. In particular there remains great ambiguity regarding the meaning of FPIC. This paper seeks to contribute to our understanding of the meaning of FPIC as a legal and policy principle that can underpin the approval of resource development projects. The paper is organized in two parts. In the first section, key legal and academic debates about UNDRIP and its FPIC principle are reviewed. The second section of the paper features an analysis of 100 briefs submitted to an Expert Panel appointed by the Trudeau government to review the federal environmental assessment process. This analysis unpacks how both Indigenous communities and industry stakeholders understand the practical meaning of FPIC and Indigenous consent to resource development projects. Ultimately this paper concludes that while the specific mechanisms in which FPIC must be implemented vary across communities and corporations, Indigenous communities and Canadian industry primarily see this principle as a call for building durable and respectful partnerships in resource development as opposed to granting a right to Indigenous peoples to exercise a veto over such projects.