The transformative potential of indigenous-driven approaches to implementing free, prior and informed consent: Lessons from two Canadian cases

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.