Free, prior, and informed consent (FPIC) is increasingly central to public discourse and policy debate regarding Indigenous reconciliation. At the same time, however, the meaning, nature, and roots of FPIC are poorly understood – including how it is understood in domestic and international law, its foundations in Indigenous legal orders, the relationship of FPIC to Indigenous sovereignty and jurisdiction, and how the rebuilding of Indigenous Nations and governments is connected to the implementation of FPIC. In unhelpful ways, consultation and accommodation have become a lens through which attempts are made to understand FPIC.
In addition to challenges with how FPIC is understood and discussed, there remains little practical focus on how to operationalize FPIC and what models of consent-based decision-making may look like. Rather than exploring and building models of how Indigenous and Crown decision-makers may work together in ways that meet the minimum standards of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), are rooted in the recognition of Title and Rights, and respect Indigenous legal orders, governments, and jurisdictions, much of the dialogue descends into partisan division, fear-mongering, or misinformation, such as the lazy and incoherent conflation of ‘consent’ and ‘veto’.
This paper advances understandings and dialogue about FPIC by identifying and examining foundations for understanding FPIC – including from Indigenous perspectives. Furthermore, it places a focus on how to operationalize FPIC including the work that the Crown, Indigenous Nations, and industry should be doing. The paper comments on three models of consent-based decision-making and makes recommendations for how to advance practical approaches to FPIC. By adopting this approach, the paper encourages all actors to shift their focus from the now out-of-date arguments about whether the UN Declaration or the recognition of Title and Rights will guide our work of reconciliation, to collaborating on how we can take tangible and real steps forward.