Erika Mayer
Held on May 20, 2015, at the University of Ottawa, Canada, the Symposium on Free, Prior and Informed Consent (FPIC) brought together a diverse array of Indigenous experts and advocates to discuss what FPIC entails, why it is so crucial, and how it can be most effectively implemented.
Free, Prior and Informed Consent is a principle established by international law that confirms Indigenous Peoples’ right to be informed about and to have a say in decisions and projects that affect them and their lands. The symposium speakers reaffirmed that FPIC is crucial for Indigenous people to safeguard their lands and make the best choices for their communities. Such a principle is made even more necessary by extractive industries that wish to profit from the resources found on these lands.
Brad Young, director of the National Aboriginal Forestry Association in Canada, added perspectives to the symposium from both his personal and professional life. He explained that the forest is important not only for its economic potential, but also for its status as a homeland, a place of tremendous value and meaning for First Nations. He described FPIC as a tool to reach a new equilibrium in power politics—a means to place control of forests and other traditional lands back in the hands of Indigenous Peoples. Speaker Anne Marie Sam noted that FPIC is about ensuring that future generations will be able to live off, and with, the land.
Although FPIC was created to defend Indigenous Peoples, not to protect companies, many of the speakers noted that it is beneficial to both parties. Failure to obtain consent from Indigenous communities can have immense consequences. Alan Young explained that opposition from local communities can cause delays and other conflicts that cost companies millions of dollars per week. “Whether you have a moral obligation or a simply monetary one, you’ve got to come to terms with FPIC, and that’s coming increasingly into play,” he concluded.
FPIC is also extremely significant to investors. François Meloche spoke about the intersection between investment and activism, and how shareholders can invest in companies that have good records on human rights and environmentalism. Using the UN’s Principles for Responsible Investment as a guideline, these investors can pressure companies to make positive changes in their policy. Because environmental and social issues affect long-term investment returns, everyone benefits from their activism.
Although the speakers agreed that FPIC is the only morally defensible—not to mention practical and cost-effective—option, its implementation around the world has been far from perfect, and many challenges remain. One such challenge involves confirming that company standards, which may look good on paper, are truly executed on the ground. According to Ian Thomson, one way to combat this problem is to use coalitions, organizations, and networks to bring partners from around the world to testify about corporations that have not been properly implementing FPIC. Thomson is a member of such an organization, KAIROS Canada, a group of Canadian churches that works with Indigenous communities to achieve justice on both a national and international level. By listening to the testimonials of affected people, organizations like this are able to assess whether companies are truly following their own policies.
Another problem with the implementation of FPIC is the widespread belief that it should serve the interests of companies rather than the interests of communities. Lina Holguin pointed out that while companies may claim they wish to build trust and create shared values, their emphasis is too often on managing the expectations of the community—not on managing their own expectations. The true implementation of FPIC requires that companies be prepared to take “no” for an answer. Yet many companies and even governments define a successful negotiation as one that results in a project being approved, not as one that reflects the needs and desires of a community.
There is much that can be done to influence corporations directly, but the speakers asserted that the true power and responsibility to ensure the rights of Indigenous Peoples lies in the hands of governments. Ian Thomson noted that Canadian legislation and the court system can be a vital tool in ensuring that Canadian companies are held accountable for their actions abroad—as long as the legislature is not too influenced by lobbying from extractive industries.
Even when companies are committed to FPIC, they may have difficulty identifying which members of a community are qualified to give consent. Companies cannot bluntly ask an entire community for a yes or no answer. Instead, they must accept that each community is different, with unique languages, laws, customs, and conceptualizations of consent. Crucially, they must also make an effort to involve women. Lina Holguin stated that enforcing women’s rights is critical to fighting poverty, and that extractive industries have disproportionate effects on the lives of women. Lorraine Land added that there is a “gendered analysis” to FPIC that involves a focus on rights related to harvesting, land, and resources, and an underemphasis on “language rights, cultural rights, and things that are more traditionally domain of women.” In other words, women are central to Indigenous communities, to their economies, and to the very notion of Free, Prior and Informed Consent—yet they are often ignored or marginalized. This is why, as the speakers emphasized, companies must ensure that women have been adequately represented and given the opportunity to actively participate in the process of giving or denying consent.
Ultimately, the speakers called for an authentic, vibrant, and respectful dialogue among governments, companies, and Indigenous Peoples. This dialogue must be a true conversation, and the final decision must represent the voice of the Indigenous community even when that community’s answer does not conform to a company’s hopes or expectations. Ian Thomson sees the present time as a pivotal moment, a moment when transformative change is possible for Canada and for First Nations. Seizing this moment of opportunity would require a dedication to using Free, Prior and Informed Consent to its fullest capacity and to giving Indigenous communities the voice and the autonomy that are their rights.
