Free, Prior and Informed Consent in International Law
The General Assembly of the United Nations have adopted in September 2007 the Declaration on the Rights of Indigenous Peoples. Since the Declaration is soft law, it is not legally binding on States, but the standards that it recognizes could, if they become part of the consistent conduct of States acting out of the belief that the law requires them to act that way, become customary law.
The Declaration contains a long preamble and 46 articles. Amongst those articles, two are particularly important and have generated strong debates. Article 3 of the Declaration stipulates that indigenous peoples have the right to self-determination and article 32, paragraph 2, says that "States shall consult and cooperate in good faith with the indigenous peoples concerned (.) in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."
The Canadian government has not yet endorsed the Declaration. It has expressed its reservation regarding article 32 because it could have the effect of giving a veto to Aboriginal peoples, although it has announced recently plans to endorse the Declaration, in line with the Canadian constitution and law1.
This concept of Free, Prior and Informed Consent (FPIC) is one of a number of indigenous rights that are specifically enumerated in international documents. FPIC has to be distinguished from the right of indigenous peoples to be consulted and involved in decisions regarding development projects that will impact them.
Some argue that FPIC is well established in international law. It is true that international organizations like the International Fund for Agricultural Development have already based their actions under FPIC and that some proponents are voluntarily seeking the consent of the Indigenous peoples affected by a project after they are granted concessions from the States. However, it is more correct to say that FPIC is an emerging trend in international law, albeit one that is rapidly gaining momentum.
While the concept of FPIC is still evolving, we can submit the following on its meaning based on articles, guidelines or reports published to this date :
- "Free" should entail no coercion, intimidation or manipulation from the States or the proponents;
- "Prior" should mean that consent has been sought sufficiently in advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/consensus processes;
- "Information" should be accurate and in a form that is accessible and understandable and should covers at least the following aspects :
- the nature, size, pace reversibility and scope of any proposed project or activity;
- the duration of the project or activity;
- a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle;
- "Consultation" and participation are crucial components of a consent process. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions. Consultation requires time. This process may include the option for indigenous peoples of withholding their consent. Consent is best understood as a formalized, documented and verifiable social license to operate.
FPIC in Canadian Law
The Aboriginal and Treaty rights of Aboriginal Peoples in Canada are recognized in section 35 of the Constitution Act, 1982. Canadian case law does recognize that in some circumstances the Federal or provincial governments may have to obtain the consent of an aboriginal nation if there is an infringement on an establish aboriginal title2. But in most cases, the Supreme Court of Canada has firmly laid down that Aboriginal rights or title are not absolute, but that any infringement upon those rights has to be justified by the federal or provincial Crown.3
In more recent cases4, the Supreme Court has stated that the federal and provincials governments have a duty to consult and accommodate Aboriginal peoples. This duty arises where the Crown has knowledge of the potential existence of an Aboriginal right or title and contemplates conduct that may adversely affect it. The nature and scope of this duty will vary with the circumstances. In general terms, the scope is proportionate to a preliminary assessment of the strength of the asserted right or title, and the seriousness of the potential impact on it. That means that a deep consultation may be required where there is a strong claim to the Aboriginal right or title, or where the risk of non-compensable damage to the right or title is high.
Good faith consultation efforts by the Crown and affected Aboriginal group may, in turn, lead to an obligation to accommodate Aboriginal concerns. Where a strong prima facie case exists and the consequences of a proposed decision would affect it in a significant way, addressing Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. The accommodation required is a process of seeking compromise in an attempt to harmonize conflicting interests.
The Supreme Court confirmed that the final decision regarding balancing of Aboriginal and societal interests rests with the Crown. While the Crown is obligated to consult in good faith with the affected Aboriginal group, Aboriginal consent is not required. The court emphasized that Aboriginal groups do not have a veto over government decisions made pending final proof of their asserted rights or title.
2. Delgamuukw v. British Columbia,  3 S.C.R. 1010, par. 168.
3. R. v. Sparrow,  1 S.C.R. 1075, p. 1109.
4. Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),  3 S.C.R. 550 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R. 388.
About Ogilvy Renault
Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.
Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.