Re-Imagining Indigenous Peoples’ Role in Natural Resource Development Decision-Making: Implementing Free, Prior and Informed Consent in Canada Through Indigenous Legal Traditions

Abstract

Indigenous communities, non-governmental organizations, and industry stakeholders across Canada are calling for a new form of government review of major natural resource development projects, one where governments must obtain the Free, Prior and Informed Consent of Indigenous peoples before approving any projects affecting their traditional territories. At the same time, Indigenous, academic, legal, and professional communities are leading a resurgence of Indigenous legal traditions. Together, the two movements offer a powerful opportunity for reconciliation. This opportunity is potentially bolstered by the 2014 Supreme Court decision in Tsilhqot’in Nation v. British Columbia, which emphasized the importance of securing consent from Indigenous communities in specific circumstances.

The status quo of government review of natural resource projects has evoked serious and sustained criticism from Indigenous peoples who submit that their perspectives, their rights, and their concerns are not adequately addressed or protected by the current process. Using the Enbridge Northern Gateway Project as a case study of the pitfalls of the status quo of government review, I explain why the federal government should implement a Free, Prior and Informed Consent regime in Canada. I draw on human rights, environmental justice, and economic arguments to support the case for implementation. For such a Free, Prior and Informed Consent regime to be most effective it must incorporate Indigenous legal traditions, empowering every Indigenous community to engage with its own legal traditions and define for itself the meaning of Free, Prior and Informed Consent. The tools, scholarship, and practical lessons emerging from the renaissance of Indigenous law can facilitate this implementation.

Keywords: FPIC, Free Prior and Informed Consent, the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, Indigenous legal systems, environmental assessment, international human rights