Free Prior and Informed Consent


Free Prior and Informed Consent


Free Prior and Informed Consent

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument which was adopted in 2007 by the United Nations to enshrine (according to Article 43) the rights that “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” This instrument safeguards collective rights of the Indigenous peoples of those countries who adopt UNDRIP.   UNDRIP was adopted by 144 countries, there were 11 abstentions, and 4 countries voted against it, including: Canada, United States, Australia, and New Zealand. In 2009, Australia and New Zealand indicated their support of UNDRIP.

In the March 3, 2010 Speech from the Throne, the Government of Canada announced that it would take steps to endorse the UNDRIP. On November 12, 2010, Canada endorsed UNDRIP, but also refers to it as “an aspirational document”, noting that it is not legally binding. Canada’s Statement of Support, or endorsement, also “reiterated continued concerns expressed by Canada since 2007 regarding specific text in the UNDRIP, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties” . Further, according to INAC’s website, “[d]eclarations can be adopted by consensus or by vote. When declarations are voted upon, a State may vote in favour of the adoption of the declaration, against its adoption or may abstain or be absent from the vote. There is no official way for a State that did not support the adoption of a declaration to subsequently indicate support, though they may do so, for example, by way of an official statement as was done by Canada on November 12, 2010.”

However, a World Conference on Indigenous Peoples was held in September 2014, wherein an action-oriented “Outcomes Document” was adopted, the intent of which was to move forward on implementing the rights of Indigenous peoples, including the principles and objectives of UNDRIP. Canada was the only UN member that refused to adopt the “Outcomes Document”, which affirmed commitment to UNDRIP.

Since the newly elected Liberal majority in October 2015, the Minister of INAC, Carolyn Bennet, has committed to implementing UNDRIP and rebuild its relationship with First Nations people by including them in every discussion, which affects them and their lands. There are 46 Articles in UNDRIP, and a quick review of such Articles found that 25 of them apply to Lands and Resources. Some of the Articles are general in nature and apply across all sectors, while others are more significant and apply specifically to Lands and Resources as it relates to free, prior, and informed consent. These Articles are as follows:

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the Indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11

  1. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 26

  1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
  2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
  3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

  1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
  2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 32

  1. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions 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”.

Work in this area is ongoing, and correspondence and lobbying efforts shall continue to reference UNDRIP and its relevant Articles.