80 Kelly Bannister
As the brief summaries of these four examples imply, consent as a principle or
element of any Indigenous community protocol is necessary to set out specific
expectations and requirements of an Indigenous community. Understandably, in
Canada and elsewhere, there has been a trend toward homogenizing and streamlining Indigenous articulations and approaches to consent, partly influenced by
widespread awareness of FPIC as a key element of UNDRIP, as well as a need
to fit with Western institutional consent processes of academe, government and
industry partners. But contemporary articulations of consent (e.g. as lists of criteria and templates) tend to be limited in conveying the relational dimension that
is important from a biocultural ethics perspective. What is needed additionally
is careful attention to articulations of Indigenous principles and values, whether
expressed in writing within Indigenous community protocols or through verbal
exchanges, to shift consent from a process of transaction based primarily on rights
and duties, to one of interaction that also fosters relational accountability and right
relationships. How to facilitate this shift is a particularly relevant question in
Canada, in light of government commitments to reconciliation that promote
renewed relationships with Indigenous peoples.
Indigenous Principles and Values as a Foundation for Right
Relationships
Criminal law and legal ethics scholar Professor John Humbach (2001) offers a
helpful distinction between different paths in the pursuit of justice through legal
rights compared with justice through right relationships:
The justice of rights and relational justice differ enormously in their
approach to the conflicts and clashes of human social life. In particular, to
pursue relational justice is to seek to actually resolve disputes rather than
just subliminalize them, pushing them beneath the surface. The idea that
the enforcement of rights actually resolves conflicts is, in most cases, nothing but illusion. The actual “resolution” of disputes means mending tears
in the fabric of relationships and, if possible, fostering the establishment of
right relationships in the place of manifestly wrong ones. This can only
happen, however, when all of those concerned come away feeling they
have reached an accord that is respectful of the equal dignity and the legitimate claims and needs of everyone concerned. It is only then that a right
relationship can begin to form and build.
(Humbach, 2001, p. 14)
Humbach (2001, p. 17) creatively depicts and contrasts rights-based relationships as
“paint-by-numbers” with right relationships as “genuine works of art”, and points
out how rights-based approaches alone have the potential to lead to profoundly
wrong relationships. This observation is consistent with the s entiments of the recent 10 Calls to Action to Natural Scientists Working in C anada by Wong et al. (2020,
As the brief summaries of these four examples imply, consent as a principle or
element of any Indigenous community protocol is necessary to set out specific
expectations and requirements of an Indigenous community. Understandably, in
Canada and elsewhere, there has been a trend toward homogenizing and streamlining Indigenous articulations and approaches to consent, partly influenced by
widespread awareness of FPIC as a key element of UNDRIP, as well as a need
to fit with Western institutional consent processes of academe, government and
industry partners. But contemporary articulations of consent (e.g. as lists of criteria and templates) tend to be limited in conveying the relational dimension that
is important from a biocultural ethics perspective. What is needed additionally
is careful attention to articulations of Indigenous principles and values, whether
expressed in writing within Indigenous community protocols or through verbal
exchanges, to shift consent from a process of transaction based primarily on rights
and duties, to one of interaction that also fosters relational accountability and right
relationships. How to facilitate this shift is a particularly relevant question in
Canada, in light of government commitments to reconciliation that promote
renewed relationships with Indigenous peoples.
Indigenous Principles and Values as a Foundation for Right
Relationships
Criminal law and legal ethics scholar Professor John Humbach (2001) offers a
helpful distinction between different paths in the pursuit of justice through legal
rights compared with justice through right relationships:
The justice of rights and relational justice differ enormously in their
approach to the conflicts and clashes of human social life. In particular, to
pursue relational justice is to seek to actually resolve disputes rather than
just subliminalize them, pushing them beneath the surface. The idea that
the enforcement of rights actually resolves conflicts is, in most cases, nothing but illusion. The actual “resolution” of disputes means mending tears
in the fabric of relationships and, if possible, fostering the establishment of
right relationships in the place of manifestly wrong ones. This can only
happen, however, when all of those concerned come away feeling they
have reached an accord that is respectful of the equal dignity and the legitimate claims and needs of everyone concerned. It is only then that a right
relationship can begin to form and build.
(Humbach, 2001, p. 14)
Humbach (2001, p. 17) creatively depicts and contrasts rights-based relationships as
“paint-by-numbers” with right relationships as “genuine works of art”, and points
out how rights-based approaches alone have the potential to lead to profoundly
wrong relationships. This observation is consistent with the s entiments of the recent 10 Calls to Action to Natural Scientists Working in C anada by Wong et al. (2020,