62 Kelly Bannister
consequences of the activity and its impacts on individuals, communities
and the environment. This understanding includes foreseeable risks, harms,
costs and potential benefits for all parties involved (UN Permanent Forum
on Indigenous Issues, 2005).
FPIC is upheld as “the standard” of consent in international and human rights
law regarding the right of Indigenous peoples to self-determination. It is so
widely known and used today that the acronym FPIC rarely requires explanation
or elaboration. However, FPIC has been a significant source of debate within
Canada, related to differing interpretations and specific concerns by government
and industry about enabling Indigenous community veto power over development affecting lands, territories and resources (Abouchar et al., 2021; Papillon &
Rodon, 2017).
FPIC has started to be referred to as part of implementation of federal laws,
but with a disclaimer about veto rights. For example, the Impact Assessment Act
(2019) for prevention of significant adverse environmental effects in projects
carried out in Canada is described vis-à-vis FPIC as follows:
The process set out in the Impact Assessment Act (2019) aligns fundamentally with the objectives of Free, Prior and Informed Consent as set out
in the United Nations Declaration on the Rights of Indigenous Peoples
( UNDRIP). Free, Prior and Informed Consent does not affirm the ability
for Indigenous peoples to veto a government action, decision or project.
(Government of Canada, 2020)
One can speculate that Canada’s reluctance to the outright adoption of FPIC as a
legal principle in past years has been a catalyst for more innovative consideration
and articulation of the principle of consent in Canadian ethics policy circles,
described below. FPIC was a major sticking point in Canada’s initial refusal to
support UNDRIP, which was eventually endorsed in 2010 as an aspirational
document, and officially adopted in 2016 with a commitment to implementation. It took until 2021 for UNDRIP to come into law through Bill C-15:
United Nations Declaration on the Rights of Indigenous Peoples Act (2021).
The e nsuing development and implementation of an action plan to achieve the
objectives of UNDRIP will undoubtedly stimulate heightened debate about
what FPIC really looks like regarding self-determination of Indigenous peoples
in Canada.
Coincident with the timing of the development of UNDRIP, Canada
was undergoing a major revision to its national research ethics policy, called
the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans
(TCPS). The TCPS was developed in 1998 after earlier attempts at creating guidelines for social sciences (Social Sciences and Humanities Research
Council of Canada (SSHRC), 1977) and medical research (Medical Research
Council of Canada (MRC), 1987) garnered little compliance by researchers
consequences of the activity and its impacts on individuals, communities
and the environment. This understanding includes foreseeable risks, harms,
costs and potential benefits for all parties involved (UN Permanent Forum
on Indigenous Issues, 2005).
FPIC is upheld as “the standard” of consent in international and human rights
law regarding the right of Indigenous peoples to self-determination. It is so
widely known and used today that the acronym FPIC rarely requires explanation
or elaboration. However, FPIC has been a significant source of debate within
Canada, related to differing interpretations and specific concerns by government
and industry about enabling Indigenous community veto power over development affecting lands, territories and resources (Abouchar et al., 2021; Papillon &
Rodon, 2017).
FPIC has started to be referred to as part of implementation of federal laws,
but with a disclaimer about veto rights. For example, the Impact Assessment Act
(2019) for prevention of significant adverse environmental effects in projects
carried out in Canada is described vis-à-vis FPIC as follows:
The process set out in the Impact Assessment Act (2019) aligns fundamentally with the objectives of Free, Prior and Informed Consent as set out
in the United Nations Declaration on the Rights of Indigenous Peoples
( UNDRIP). Free, Prior and Informed Consent does not affirm the ability
for Indigenous peoples to veto a government action, decision or project.
(Government of Canada, 2020)
One can speculate that Canada’s reluctance to the outright adoption of FPIC as a
legal principle in past years has been a catalyst for more innovative consideration
and articulation of the principle of consent in Canadian ethics policy circles,
described below. FPIC was a major sticking point in Canada’s initial refusal to
support UNDRIP, which was eventually endorsed in 2010 as an aspirational
document, and officially adopted in 2016 with a commitment to implementation. It took until 2021 for UNDRIP to come into law through Bill C-15:
United Nations Declaration on the Rights of Indigenous Peoples Act (2021).
The e nsuing development and implementation of an action plan to achieve the
objectives of UNDRIP will undoubtedly stimulate heightened debate about
what FPIC really looks like regarding self-determination of Indigenous peoples
in Canada.
Coincident with the timing of the development of UNDRIP, Canada
was undergoing a major revision to its national research ethics policy, called
the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans
(TCPS). The TCPS was developed in 1998 after earlier attempts at creating guidelines for social sciences (Social Sciences and Humanities Research
Council of Canada (SSHRC), 1977) and medical research (Medical Research
Council of Canada (MRC), 1987) garnered little compliance by researchers