Consultation “versus” consent?
The first three elements of FPIC—free, prior, informed—have been added and developed over time to protect the element at the core of the standard: consent.
This reflects that FPIC necessitates meaningful, active consent. Yet some sources have removed consent from the equation by recasting the standard as “free, prior and informed consultation.”
This version of FPIC, known as Consultation-FPIC, draws on the protective strength of the free, prior and informed elements of FPIC, but ultimate authority in decision-making rests with the party conducting the consultation rather than the one being consulted.
Consultation-FPIC has critics. But it’s too easy to call it a watered-down version of FPIC. Consultation can build on the consent of Indigenous participants, and when appreciated in its many dimensions and genuinely implemented, it can be a powerful source of protection.
It can also avoid some of the controversies of a consent requirement, which is sometimes characterized in national politics as an Indigenous veto over sensitive land use and natural resource decision-making.
The Canadian legal system is largely based on Consultation-FPIC but has proven in recent years capable of protecting Indigenous self-determination claims in the face of powerful opposition from the oil, gas, and pipeline industries. Leading Indigenous activists have supported the notion of a complex interplay between consent and consultation. Professor James Anaya, a pioneer of international Indigenous rights law who served two terms as the UN Special Rapporteur on the Rights of Indigenous Peoples, has described the Indigenous right to self-determination as “entail[ing] more than a mere right to be informed and heard but not an absolute right of veto.”
One of the reasons why it is not easy to separate consent and consultation is that Indigenous Peoples do not all speak with one voice, so a strict interpretation of a consent requirement in the form of a veto could be wielded by one Indigenous people against the wishes of a neighboring people. And the Indigenous right to self-determination is in constant tension with the prerogative of sovereignty exercised by contemporary nation-states. In light of this, courts, policy-makers and practitioners, including those strongly supportive of Indigenous Peoples, have devised a number of approaches to balance competing interests, ensure the legitimacy of consultation, and protect the essence of consent.
How these approaches apply to a non-state actor like TNC is not entirely clear, but the question is less important in light of TNC’s commitment to obtaining full consent from impacted IPLCs before proceeding with any initiative.
It may be that TNC’s commitment to a consent-based approach won’t resolve every conflict between impacted communities. But such scenarios, uncommon as they are, can be addressed on a case-by-case basis. TNC recognizes the legitimacy of both FPIC and Consultation-FPIC processes, so long as the core underlying principles and good faith are maintained, but we have chosen to hold ourselves to a consent-based model.