Figure 1: 2. FROM CONSULTATION TO FREE PRIOR AND INFORMED CONSENT Mining companies are moving from consultation or engagement to striving to achieve Free, Prior and Informed Consent from Indigenous Nations. Drivers could be regulatory requirements, company own corporate requirements, lender’s requirements, Indigenous Nations expectations. There is a crucial distinction between Free, Prior, and Informed Consent (FPIC) and consultation. FPIC is an important feature of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and rooted in international human rights law and increasingly recognized within national legal frameworks, represents a paradigm shift in how development projects and resource extraction initiatives engage with Indigenous communities. It mandates that Indigenous peoples have the authority to decide whether or not a project affecting their lands, resources, or cultural heritage proceeds. This decision must be freely given, based on full understanding of the project’s implications, and made without coercion or undue influence. Consultation, on the other hand, is a much broader term encompassing various forms of engagement between governments, corporations, and Indigenous communities. It can range from simple information-sharing to more extensive dialogue and negotiation, but it doesn’t inherently guarantee Indigenous consent. UNDRIP is neither a convention nor a treaty. It is not legally binding unless it is adopted into domestic legislation. Few jurisdictions have adopted UNDRIP as national law, like Canada, and they’re currently working to align their internal laws with it, developing regulatory requirements to strengthen the ‘duty to consult and accommodate’. Canadian courts are using UNDRIP to interpret their decisions. In certain provinces, such as British Columbia (BC), we are seeing that Indigenous Nations are signing consent-based agreements with BC to actively participate in environmental assessment reviews that will likely impact their traditional territories and rights, 86
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