Recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and protected by international human rights law, Free, Prior and Informed Consent (FPIC) refers to the right of Indigenous Peoples to be properly informed and engaged in order to give or withhold consent to and negotiate the terms of projects that affect them or their territories.
Reflecting on how rights and processes pertaining to FPIC might be enacted in response to resource extraction projects in British Columbia, Wex, a Juris Doctor student at the Allard School of Law, worked with Karen Campbell, Executive Director of the British Columbia Law Institute, to prepare an overview of FPIC as a human right and an international standard, and of BC’s mining laws and the ways in which they might be amended to incorporate FPIC. Prepared for the BC First Nations Energy & Mining Council, this project endeavours to raise awareness and stimulate conversation about FPIC, and how it might be applied in the context of mining in the province.
Wex notes that from a Western perspective, consent normally implies a yes or no binary, however her research suggested that from an Indigenous perspective and in a natural resource extraction context, consent is more about a relationship of mutual respect and cooperation and is inherently tied to sovereignty and the right to self-determination.
“In the context of Indigenous rights, FPIC relates to the right of an Indigenous group, or First Nation, or community to be involved in decisions that affect them and their rights. . . It’s really about a relationship—a conversation. It’s intricately tied to another right that features quite heavily in UNDRIP, the right to self-determination or the right to sovereignty.
Something that I learned while working on this project is that FPIC can’t be defined or spoken about without also talking about the right to self-determination.”
Reflecting on the requirement for companies and governments to consult with Indigenous Peoples throughout project development and implementation, Wex noted that her research uncovered disparities between talk and action. In response, the document strives to outline how First Nations in BC can enact their FPIC rights when it comes to projects that impact their communities and use the document as a vehicle for knowledge sharing between communities that have long enacted these rights and with those not yet familiar with FPIC.
Regarding the lengthy process of legal reform on issues that Indigenous Peoples in Canada have advocated for, Wex suggests the need for a culture of change and hopes that mining executives in BC will use the document to inform work that reflects an understanding of First Nations as the arbitors of their territories.
Recognizing her position as a white settler engaging in work pertaining to the rights of First Nations in BC, Wex cites the opportunity to engage with the research of and receive feedback from UBC professor Dr. Sheryl Lightfoot, who is Anishinaabe from the Lake Superior Band of Ojibwe, as invaluable to the project.
Being involved in this project as a UBC Sustainability Scholar, Wex was introduced to new concepts and perspectives, which informed a shift in the focus of her studies while in the second year of her Juris Doctor degree at UBC. She continues to work with the BC First Nations Energy & Mining Council and looks forward to engaging more with topics related to Indigenous rights and law as she continues her studies.