Article

The Transformative Potential of Indigenous-Driven Approaches to Implementing Free, Prior and Informed Consent: Lessons from Two Canadian Cases

Abstract

While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the implementation of the principle of free, prior and informed consent (fpic) remains contested. As the comparative literature shows, if and how fpic is implemented depend both on the institutional context and on the agency of actors involved. Faced with deep power asymmetries and strong institutional resistance to their understanding of fpic as a decision-making right, a number of Indigenous groups in Canada have taken advantage of the uncertain legal context to unilaterally operationalise fpic through the development of their own decision-making mechanisms. Building on two case studies, a mining policy adopted by the Cree Nation of James Bay and a community-driven impact assessment process established by the Squamish Nation, this article argues Indigenous-driven mechanisms can be powerful instruments to shape how fpic is defined and translated in practice.
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©   , , |:./-
     
  () -
brill.com/ijgr
The Transformative Potential of Indigenous-Driven
Approaches to Implementing Free, Prior and
Informed Consent: Lessons from Two Canadian
Cases
Martin Papillon
Université de Montreal, Montréal, Canada
martin.papillon@umontreal.ca
Thierry Rodon
Université Laval, Québec, Canada
thierry.rodon@ulaval.ca
Abstract
While it is increasingly recognised as a core element of the emerging international
Indigenous rights regime, the implementation of the principle of free, prior and in-
formed consent () remains contested. As the comparative literature shows, if
and how  is implemented depend both on the institutional context and on the
agency of actors involved. Faced with deep power asymmetries and strong institu-
tional resistance to their understanding of  as a decision-making right, a number
of Indigenous groups in Canada have taken advantage of the uncertain legal context
to unilaterally operationalise  through the development of their own decision-
making mechanisms. Building on two case studies, a mining policy adopted by the
Cree Nation of James Bay and a community-driven impact assessment process estab-
lished by the Squamish Nation, this article argues Indigenous-driven mechanisms can
be powerful instruments to shape how  is dened and translated in practice.
Keywords
Indigenous peoples – Canada – free, prior and informed consent () – 
norm translation – community-driven impact assessment
0004449284.INDD 1 7/26/2019 4:17:33 PM
  
        () -
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1 Introduction
While it is increasingly recognised as a core element of the emerging inter-
national Indigenous rights regime, the principle of free, prior and informed
consent () remains a contested norm. Its legal interpretation and political
translation by state institutions continue to be inconsistent and highly contin-
gent. Comparative analyses of  implementation underscore variations in
the degree of state compliance, but also signicant diferences and disagree-
ments as to the very meaning, scope and practical implications of the norm.
Indigenous peoples themselves often challenge the Western-centric approach
to their participatory rights that permeates debates at the national and inter-
national levels.
Canada is no exception in this respect. As elsewhere, the debate tends to
be polarised between an interpretation of  as an Indigenous veto or as a
state-centred procedural obligation to consult in order to seek, but not neces-
sarily obtain, Indigenous consent when resource development projects may
afect their rights. Little attention is given to Indigenous views on what consent
means and how it should translate in practice.
C.M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative
Role of Free Prior and Informed Consent (Routledge, New York, 2015); A. Tomaselli, ‘The Right
to Political Participation of Indigenous Peoples: A Holistic Approach, 24:4 International Jour-
nal on Minority and Group Rights (2017) pp. 390–427 : 10.1163/15718115-02404006; J. Tock-
man, ‘Eliding Consent in Extractivist States: Bolivia, Canada, and the UN Declaration on the
Rights of Indigenous Peoples’, 22:3 The International Journal of Human Rights (2018) pp. 325–
349 : 10.1080/13642987.2017.1383241; A. Schilling-Vacaor, ‘Who Controls the Territory and
the Resources? Free, Prior and Informed Consent () as a Contested Human Rights Prac-
tice in Bolivia’, 38:5 Human Rights Quarterly (2017) pp. 1058–1074; E. Leifsen, M.-T. Gustafsson,
M.A. Guzmán-Gallegos and A. Schilling-Vacaor, ‘New Mechanisms of Participation in Ex-
tractive Governance: Between Technologies of Governance and Resistance Work’, 38:5 Third
World Quarterly (2017) pp. 1043–1057 : 10.1080/01436597.2017.1302329; L.B. Fontana and
J. Grugel, ‘The Politics of Indigenous Participation Through ‘Free Prior Informed Consent’:
Reections from the Bolivian Case’, 77 World Development (2016) pp. 249–261 : 10.1016/j.
worlddev.2015.08.023; T.G. Falleti and T.N. Riofrancos, ‘Endogenous Participation: Strength-
ening Prior Consultation in Extractive Economies’, 70:1 World Politics (2017) pp. 86–121.
 See for example the various contributions to J. Borrows, L. Chartrand, O. Fitzgerald and
R. Schwartz (eds.), Braiding Legal Orders. Implementing the United Nations Declaration on
the Rights of Indigenous Peoples (Centre for International Governance Innovation, Waterloo
(Ontario), 2019).
 K.S. Coates and B. Flavel, Understanding . From Assertion and Assumption on 
to a New Model for Indigenous Engagement on Resource Development (Macdonald-
Laurier Institute, Ottawa, 2016); M. Papillon and T. Rodon, ‘Indigenous Consent and
NaturalResource Extraction: Foundations for a Made-in-Canada Approach’, Choice (2017),
0004449284.INDD 2 7/26/2019 4:17:33 PM
      
        () -
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Faced with strong resistance to their own understanding of , a number
of Indigenous groups in Canada have chosen to challenge the legitimacy of
state-driven norms and processes. Instead, they seek to operationalise 
through the development of their own decision-making mechanisms, often in
parallel to state-sponsored regulatory processes. They do so through the de-
velopment of community-driven impact assessment for example, or through
the negotiation of protocols and agreements with project proponents, under
which the latter recognise Indigenous ways of expressing consent as a precon-
dition for a project to proceed.
This article discusses the transformative potential of these Indigenous-
driven mechanisms for implementing . To do so, we document two ex-
amples of such innovative practices: the mining policy adopted by the Cree
NationofJames Bay in their traditional territory of Eeyou Istchee and the com-
munity-driven impact assessment process established by the Squamish Nation
(Skwxwú7mesh Úxwumixw) over concerns with a liqueed natural gas plant.
These two cases illustrate diferent strategies Indigenous peoples can use to
operationalise , depending on the legal, institutional and political context
they face.
The James Bay Cree are signatories to the 1975 James Bay and Northern
Quebec Agreement (), a constitutionally protected land claims agree-
ment under which they are guaranteed some level of participation in decision-
making over land and resources management, but no right of veto or consent.
Despite the limitations of the , the Cree have used their institutional
https://irpp.org/research-studies/insight-no16/; Hon. F. Iacobucci, J. Terry, V. Helbronner, M.
Fortier and R.Lax, Free, Prior and Informed Consent in Canada: Towards a New Relationship
with Indigenous Peoples (Torys , Toronto, 2016); D. Newman, Political Rhetoric Meets Legal
Reality. How to Move Forward on Free, Prior and Informed Consent in Canada, (Macdonald-
Laurier Institute, Ottawa, 2017); Tockman, supra note 2; D. Leydet, ‘The Power to Consent:
Indigenous Peoples, States, and Development Projects’, 69:3 University of Toronto Law Journal
(2019) pp. 371–403, : 10.3138/utlj.2018-0068.
G. Gibson, D. Hoogeveen and A. MacDonald, Impact Assessment in the Arctic: Emerging Prac-
tices of Indigenous-Led Review, Firelight Group and Gwich’in Council International (2018);
C. O’Faircheallaigh, ‘Shaping Projects, Shaping Impacts: Community-Controlled Impact As-
sessments and Negotiated Agreements’, 38:5 Third World Quarterly (2017) pp. 1181–1197 :
0.1080/01436597.2017.1279539.
 C. O’Faircheallaigh, Negotiations in the Indigenous World: Aboriginal Peoples and the Ex-
tractive Industry in Australia and Canada (Routledge, New York, 2016); M. Papillon and
T.Rodon, ‘Proponent-Indigenous Agreements and the Implementation of the Right to Free,
Prior, andInformed Consent in Canada’, 62 Environmental Impact Assessment Review (2017)
pp.216–224 : 10.1016/j.eiar.2016.06.009; M. Low, Practices of Sovereignty: Negotiated Agree-
ments, Jurisdiction, and Well-Being for Heiltsuk Nation (Doctoral dissertation, University of
British Columbia, 2018) : 10.14288/1.0375642.
0004449284.INDD 3 7/26/2019 4:17:33 PM
  
        () -
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capacity to develop their own mining policy, under which they establish cri-
teria for expressing their consent to projects and make such approval con-
ditional on the negotiation of agreements with the project proponent. Our
second case concerns the Squamish Nation, whose traditional territory sits on
the northern edge of the city of Vancouver, in British Columbia. Unlike the
Cree, the Squamish have not negotiated a land claims agreement, but they
were able to take advantage of the legal uncertainty resulting from their unset-
tled title claim to develop their own  mechanism, this time a community-
based impact assessment that was supported by the project proponent.
This study shows that under the right circumstances, Indigenous peoples
can have signicant agency in shaping how  is interpreted and imple-
mented. By unilaterally dening a process through which they express their
consent, the James Bay Cree and Squamish Nation succeeded in reframing
 from a procedural duty of the state, under which their role is limited to
being consulted on the impact of a project, to a matter of Indigenous jurisdic-
tion over the project itself. In doing so, they also shifted the institutional site
for operationalising  from a state-driven to a community-driven process.
They were able, in other words, to redene both the meaning of  and who
decides how it is implemented in practice.
This strategy of norm translation through the development of community-
led processes is not unique to Indigenous peoples in Canada. We suggest,
however, that it is particularly conducive to transformative politics in the Ca-
nadian context, where  does benet from a certain level of recognition as
a legitimate norm in public discourse, yet its interpretation remains debated
and its implementation incomplete. While this ambiguity is often criticised,
it also paradoxically creates an opening for Indigenous agency in shaping
how the norm is translated in practice. We conclude with some reections on
the potential and limits of Indigenous-driven processes in light of the deep
power asymmetries most Indigenous nations face when mobilising for 
implementation.
 Doyle, supra note 1; R.K. Larsen, ‘Impact Assessment and Indigenous Self-Determination:
AScalar Framework of Participation Options’, 36:3 Impact Assessment and Project Appraisal
(2018) pp. 208–219 : 10.1080/14615517.2017.1390874; R. Lawrence and R.K. Larsen. ‘The Poli-
tics of Planning: Assessing the Impacts of Mining on Sami Lands’, 38:5 Third World Quarterly
(2017) pp. 1164–1180 : 10.1080/01436597.2016.1257909; O’Faircheallaigh, supra note 4; Leif-
sen et al, supra note 2; C.F. Fredericks, ‘Operationalizing Free, Prior and Informed Consent’,
80:2 Albany Law Review (2017) pp. 429–482.
0004449284.INDD 4 7/26/2019 4:17:33 PM
      
        () -
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2 The Politics of Indigenous Consent
As Risse and Sikkink suggest in their ground-breaking comparative analysis of
international human rights compliance, the translation of international norms
into national frameworks is a social process. It is driven by interactions be-
tween state and non-state actors, who mobilise the norms through various rep-
resentation strategies at the national and international levels. In the absence
of a basic shared understanding of what the norm actually entails, this trans-
lation process becomes more challenging. Conicts over norm interpretation
can hinder its institutionalisation and leave it subject to power politics. This
is arguably the case for . Despite its broad recognition in international
circles,  remains a contested norm, both in terms of its substance and its
operationalisation.
By far the most debated dimension of  has to do with its implications
for decision-making in land resource development. Indigenous peoples con-
sistently approach  as an extension of their right to self-determination.
The capacity to consent (or not) to an activity on their traditional land stems
from their authority as self-governing polities free to determine their future,
and by extension that of their land. , in other words, implies a jurisdic-
tional capacity to make decisions, either unilaterally or in collaboration with
competent state authorities. States and private corporations, by contrast, are
reluctant to endorse a version of  that could imply an Indigenous veto on
T. Risse and K. Sikkink, ‘The Socialization of International Human Rights Norms into Do-
mestic Practices: Introduction’, in K. Sikkink, S. C. Ropp, and T. Risse (eds.), The Power of
Human Rights: International Norms and Domestic Change (Cambridge University Press,
Cambridge, 1999) pp. 1–38.
L.B. Fontana and J. Grugel, ‘Deviant and Over-Compliant: The Domestic Politics of Child
Labor in Bolivia and Argentina’, 39:3 Human Rights Quarterly (2017) pp. 631–656.
M. Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on
the Rights of Indigenous Peoples: Developments and Challenges Ahead’, 16:1 The Interna-
tional Journal of Human Rights (2012) pp. 1–24; P. Hanna and F. Vanclay, ‘Human Rights,
Indigenous Peoples and the Concept of Free, Prior and Informed Consent’, 31:2 Impact
Assessment and Project Appraisal (2013) pp. 146–157 : 10.1080/14615517.2013.780373;
A. Tomaselli, Indigenous Peoples and Their Right to Political Participation: International
Law Standards and Their Application in Latin America (Nomos Verlag, Baden-Baden,
2016).
 Doyle, supra note 1; J. Anaya, Human Rights Council, Report of the Special Rapporteur on
the Rights of Indigenous Peoples: Extractive Industries and Indigenous Peoples, UN doc.
A//24/41 (1 July 2013); Leydet, supra note 3.
 Assembly of First Nations, ‘Submission on Free Prior and Informed Consent ()
for the Expert Mechanism on the Rights of Indigenous Peoples’, Expert Mechanism on
0004449284.INDD 5 7/26/2019 4:17:33 PM
  
        () -
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extractive activities. Instead, governments tend to view  as a mechanism
to ensure the perspectives of Indigenous peoples are taken into consideration
in the decision-making process, not as a process for sharing that decision-
making authority. Faced with an uncertain legal environment, industry actors
similarly seek Indigenous consent less as a mean to recognise their authority
than in order to minimise the potential costs of protracted legal and political
battles. Both states and industry actors therefore privilege a more diluted ver-
sion of  as a participatory right, which results in a procedural obligation
to seek consent through what is often technical (and symbolic) consultation
rather than as a substantive obligation to recognise the decision-making au-
thority of Indigenous peoples and their representative institutions.
The now abundant literature looking at  interpretation in the interna-
tional system, from courts to international organisations, NGOs and private
corporations, reects this debate over the scope of the norm. Comparative
analyses looking at state compliance with  underscore signicant varia-
tions not only in the degree of institutionalisation of the norm, but also in its
substantive interpretation and how it should be operationalised, with a strong
tendency among states and industry actors to minimise its implications for
existing decision-making processes.
Indigenous peoples use diferent strategies to counter restrictive denitions
of  and promote their own understanding of the norm. Protests, public
relations campaigns, international mobilisation, legal action and negotiations
the Rights of Indigenous Peoples (2018), <www.ohchr.org/Documents/Issues/IPeoples/
EMRIP/FPIC/AssemblyFirstNations_Canada.pdf>, visited on 29 March 2019.
 Tockman, supra note 2; Doyle, supra note 1; Papillon and Rodon, supra note 3.
 C.R. Garavito, ‘Ethnicity.Gov: Global Governance, Indigenous Peoples, and the Right to
Prior Consultation in Social Mineelds’, 18:1 Indiana Journal of Global Legal Studies (2010).
 For insights into the international debates, see the report of Anaya, supra note 10, and
see the recent report of the Expert Mechanism on the Rights of Indigenous Peoples by
the Human Rights Council, Free, Prior and Informed Consent: A Human Rights-Based Ap-
proach, UN doc. A/HRC/39/62 (10–28 September 2018).
 Fatelli and Riofrancos, supra note 2; Fontana and Grugel, supra note 2; Doyle, supra note
1; Tomaselli, supra note 2; Tockman, supra note 2; Papillon and Rodon, supra note 3; C. Al-
lard, ‘The Rationale for the Duty to Consult Indigenous Peoples: Comparative Reections
from Nordic and Canadian Legal Contexts’, 9:1 Arctic Review on Law and Politics (2018)
pp. 25–43; D. Szablowski, ‘Operationalizing Free, Prior, and Informed Consent in the
Extractive Industry Sector? Examining the Challenges of a Negotiated Model of Justice’,
30:1–2 Canadian Journal of Development Studies / Revue Canadienne d’études Du Dével-
oppement (2010) pp. 111–130 : 10.1080/02255189.2010.9669284.
0004449284.INDD 6 7/26/2019 4:17:33 PM
      
        () -
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are some of the most commonly used strategies. Faced with an uncertain
and contested eld, Indigenous peoples are also increasingly asserting their
own vision of  through their own mechanisms, to give  meaning in
practice. Building on case analyses, we suggest this process of norm denition
though practice involves not only a framing strategy – in order to give meaning
to the norm in public discourse – but also an institutional strategy, that is the
act of creating a process for expressing free, prior and informed consent in a
manner that corresponds to their understanding of the norm and their own
governing procedures.
In reasserting control over the process through which they express their
consent, Indigenous peoples challenge state-centred and instrumental views
of  and rearm their status as self-determining peoples with the capacity
(and legitimacy) to make decisions over the future of their traditional lands.
They also force governments and corporations engaged in the extractive sec-
tor to position themselves in relation to these Indigenous-driven mechanisms.
They either accept them as a legitimate expression of  or risk being ac-
cused of ignoring or rejecting  altogether, therefore exposing themselves
to legal and political challenges to the legitimacy of their own decision-making
processes.
We further suggest that this process of norm appropriation is arguably more
efective in contexts where  benets from a certain level of recognition
as a legitimate norm in public discourse, yet its scope and operationalisation
remain ambiguous. This lack of institutionalisation becomes an opportunity
for Indigenous peoples to assert their own interpretation of the norm and es-
tablish their own mechanisms for operationalising it. As we show next, Canada
is at such a critical juncture.
3 Indigenous Participatory Rights in Canada
Section35 of the Constitution Act, 1982, recognises “the Aboriginal and trea-
ty rights of Aboriginal peoples in Canada”. It does not, however, dene such
rights. Courts have therefore played an important role in dening the scope
 M. Papillon and T. Rodon. ‘From Consultation to Consent: The Politics of Indigenous Par-
ticipatory Rights in Canada’, in A. Tomaselli and C. Wright (eds.), The Prior Consultation of
Indigenous Peoples in Latin America. Inside the Implementation Gap (Routledge, forthcom-
ing); A. Schilling-Vacaor and R. Flemmer, ‘Mobilising Free, Prior and Informed Consent
() from Below: A Typology of Indigenous Peoples’ Agency’, 27:2 International Journal
on Minority and Group Rights (2020), this issue.
0004449284.INDD 7 7/26/2019 4:17:33 PM
  
        () -
PG3298
and substance of Indigenous rights in Canada, including rights to land and
participation in decision-making. The Supreme Court of Canada has estab-
lished a Crown (the executive branch of federal and provincial governments)
obligation to consult and, if necessary, accommodate Indigenous peoples be-
fore making a decision that could unduly afect the exercise of their rights rec-
ognised in the Canadian Constitution.
In its jurisprudence on the duty to consult, the Court is very clear that it
does not establish an Indigenous veto on government decision-making pro-
cesses. It has nonetheless acknowledged that in some cases when the impact
on Aboriginal rights is major, the Crown should consult with the objective of
obtaining Indigenous consent before proceeding with a decision:
Where Aboriginal title is unproven, the Crown owes a procedural duty
imposed by the honour of the Crown to consult and, if appropriate, ac-
commodate the unproven Aboriginal interest … By contrast, where title
has been established, governments and others seeking to use the land
must obtain the consent of the Aboriginal title holders. If the Aboriginal
group does not consent to the use, the government’s only recourse is to
establish that the proposed incursion on the land is justied under s.35 of
the Constitution Act, 1982.
While it creates an obligation on governments to take Indigenous concerns
into consideration in the regulatory process leading to the approval of projects
that could impact their traditional lands, the doctrine of the duty to consult,
accommodate and, under certain circumstances seek consent is not a recog-
nition of Indigenous peoples’ distinctive decision-making authority, let alone
their sovereignty on the land. As the above suggests, it remains rst and fore-
most a participatory right, derived from the Crown’s duty to “act honorably”
with its Indigenous subjects.
The implementation of this jurisprudential doctrine has proven controver-
sial and complex. The Court has thus far dened the modalities of the duty
 See in particular Delgamuukw v. British Columbia [1997] 3  1010; Haida Nation v. British
Columbia [2004] 3  511; Taku River Tlingit First Nation v. British Columbia [2004] 3 
550; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council [2010]  43; Tsilhqot’in Nation v.
British Columbia [2014] 2  256.
 Haida Nation v. British Columbia, supra note 17, paras. 42 and 48.
 Tsilhqot’in Nation v. British Columbia, supra note 17, para. 76.
 J. Borrows, ‘The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia’ 48:3
 Law Review (2015).
0004449284.INDD 8 7/26/2019 4:17:33 PM
      
        () -
PG3298
to consult on a case by case basis, using a spectrum approach under which
the scope of the Crown’s obligations depends on the nature of the project and
its potential impact on Aboriginal rights. This approach has created a high
degree of uncertainty as there are few criteria to clearly establish the level of
required consultation and accommodation measures. The extension of the
duty to consult in the territory of consent adds to this uncertainty. What is an
adequate consultation in this context? Who should consult and when? If con-
sent is required, how should it be expressed?
In the absence of legal clarity, it is not surprising that Canadian federal and
provincial authorities have adopted an ambiguous position on . The Ca-
nadian government refused to endorse the  when it was rst adopted
by the UN General Assembly in 2007, largely out of fear its dispositions con-
cerning  were not consistent with Canadian constitutional obligations
and “could be interpreted as a veto” on economic development.
Eager to break with the previous administration’s confrontational approach
to Indigenous peoples, the newly elected Liberal government announced in
May 2016 that it was committed to the full implementation of the ,
without caveats. In a statement to the United Nations Permanent Forum on
Indigenous Issues, the Minister of Indigenous Afairs took extra steps to note
that this endorsement includes . The same statement nonetheless speci-
es that  will be interpreted in continuity with Canada’s existing regime
of Indigenous rights.
The federal government further claried its position in 2017 in a policy
statement titled Principles respecting the Government of Canada’s relationship
with Indigenous Peoples. The document addresses  directly, stating that
“meaningful engagement with Indigenous Peoples aims to secure their 
when Canada proposes to take actions which impact them and their rights on
 D.G. Newman, Revisiting the Duty to Consult Aboriginal Peoples (Purich, Saskatoon, 2014).
 J. McNee, ‘Statement by Ambassador McNee to the General Assembly on the Declara-
tion on the Rights of Indigenous Peoples’, Nation Talk, 13 September 2007, <nationtalk.ca/
story/statement-by-ambassador-mcnee-to-the-general-assembly-on-the-declaration-on-
the-rights-of-indigenous-peoples>, visited on 29 March 2019.
 C. Bennett, ‘Fully Adopting : Minister Bennett’s Speech at the United Nations’,
Northern Public Afairs, 10 May 2016, <www.northernpublicafairs.ca/index/fully-adopting-
undrip-minister-bennetts-speech/>, visited on 29 March 2019.
 Ibid.
 Canada, Department of Justice, Principles Respecting the Government of Canada’s Rela-
tionship with Indigenous Peoples, <justice.gc.ca/eng/csj-sjc/principles-principes.html>,
visited on 29 March 2019.
0004449284.INDD 9 7/26/2019 4:17:33 PM
  
        () -
PG3298

their lands, territories, and resources” (emphasis added). It adds that “to this
end, the Government of Canada will look for opportunities to build processes
and approaches aimed at securing consent, as well as creative and innovative
mechanisms that will help build deeper collaboration, consensus, and new
ways of working together” (emphasis added).
The government therefore agrees that existing mechanisms for engaging
Indigenous Peoples may be insucient. At the same time, the wording of the
statement suggests obtaining  is interpreted as an aspirational goal rather
than as a rm obligation. New processes should be “aimed at securing” consent
rather than simply establishing consent.
Canadian provinces, which have considerable jurisdictional autonomy on
land and resources management, have also been careful in statements con-
cerning the  and . While some Provinces have endorsed the -
 in policy statements, few have taken concrete steps to establish a policy or
legislative framework for its implementation.
This legal and political ambiguity creates a high degree of uncertainty over
resource extraction projects and the process through which these projects
should be approved. Indigenous peoples are regularly challenging existing con-
sultation processes as inadequate and inconsistent with both Canada’s con-
stitutional obligations and its international commitments under the .
When a hydroelectric dam in British Columbia was approved over clearly ex-
pressed opposition from afected Indigenous communities, opponents called it
a “profound betrayal of the solemn commitments undertaken when Canada …
endorsed the UN Declaration on the Rights of Indigenous Peoples”.
Indigenous communities across Canada are also engaged in a legal and
political struggle over oil and gas pipelines. Conicts surrounding the Trans
Mountain extension pipeline, which is expected to carry bitumen oil from Al-
berta to open waters in the Vancouver area, gathered much media attention
 Ibid.
 Ibid.
 One exception in this respect is British Columbia, where the government has announced
its intention to introduce legislation on the . See V. Palmer, ‘B.C. Makes Ambitious
Commitment to  in Throne Speech’, Vancouver Sun, 13 February 2019, <vancouver-
sun.com/opinion/columnists/vaughn-palmer-province-makes-ambitious-commitment-
to-undrip>, visited on 29 March 2019.
 Assembly of First Nations, ‘ National Chief Calls for Free, Prior and Informed Con-
sent in Site C Dam Hydro Project’, News and Media, 18 December 2014, </www.afn.ca/en/
news-media/latest-news/afn-nation-al-chief-calls-for-free-prior-and-informed-consent
-in-site-c>, visited on 29 March 2019.
0004449284.INDD 10 7/26/2019 4:17:33 PM
      
        () -
PG3298
when a group of Indigenous nations successfully challenged the federal pro-
cess for approving the pipeline at the Federal Court of Appeal.
Indigenous peoples are not alone in seeking clarity as to the interpretation
and implementation of consultation and consent rules. Conicts over inter-
pretation of Indigenous rights and the duty to consult are proving costly for
the resource extraction sector. Faced with Indigenous opposition, some proj-
ect proponents have simply bailed out of their initial investment or threatened
to do so as a result of the uncertain legal and political climate.
In the absence of clearly dened rules, the resource extraction sector has
developed its own mechanisms for establishing legal clarity and minimise the
risks of political instability surrounding their projects. One key mechanism
that has emerged in recent years is the negotiation of private agreements
directly with Indigenous communities to seek their support for a project in
exchange for some benets and impact mitigation measures. Impact and Ben-
et Agreements (s) have become an efective mechanism for industry to
circumvent the inadequacies of state-driven regulatory processes and secure
Indigenous consent to resource extraction projects on their traditional lands.
Whether s are in themselves sucient to establish free, prior and in-
formed Indigenous consent to a project is a contentious question given the
inherent asymmetry between the proponent and the Indigenous community
in the negotiation process. Indigenous communities also sometimes sign
s less because they support the project than because they have little choice,
knowing fully that the project is likely to go ahead even if they oppose it. The
focus of negotiations is therefore less on the value of the project itself or its im-
pacts, than on the content of the compensation package Indigenous commu-
nities can bargain in exchange for their consent. Under such circumstances,
 The project’s initial approval was overturned in light of what the Court considered a
breach of the federal government’s duty to consult. The Court ordered the federal govern-
ment to engage in new, “enhanced” consultations with those Indigenous groups that were
most afected by the project. See Tsleil-Waututh Nation v. Canada (Attorney General), 2018
 153 (Can).
 Coates and Flavell, supra note 3.
 K. Bakx, ‘Oil Export Pipelines: Will Canada Ever Build Another?’,  News, 21 January
2016,<www.cbc.ca/news/business/pipeline-canada-export-transmountain-keystone-
energyeast-1.3409134>, visited on 29 March 2019.
 Papillon and Rodon, supra note 5; O’Faircheallaigh, supra note 5.
 K.J. Caine and N. Krogman, ‘Powerful or Just Plain Power-Full? A Power Analysis of Im-
pact and Benet Agreements in Canada’s North, 23:1 Organization and Environment (2010)
pp.76–98.
 Papillon and Rodon, supra note 5.
0004449284.INDD 11 7/26/2019 4:17:33 PM
  
        () -
PG3298

it is hard to conclude this form of negotiated agreement truly constitutes free
and informed consent.
 in Canada is therefore at a critical juncture. It is increasingly recog-
nised by governments and industry actors as a normative framework guiding
their relations with Indigenous peoples. At the same time, its translation in
practice remains uncertain and contested. Part of the challenge lies with the
diverging interpretation of  that are mobilised by diferent actors. For gov-
ernments,  tends to be dened as a procedural obligation, a necessary step
in ensuring the legality and the legitimacy of existing decision-making struc-
tures; it is not, as Indigenous peoples would like it, a way to share this decision-
making authority. Industry actors also increasingly recognise the necessity of
seeking Indigenous support for their projects, but they do so for strategic pur-
poses, with an economic goal in mind.
In the absence of mutual agreement as to its normative foundation, mean-
ing and scope,  therefore remains a contested norm with weak institu-
tional foundations. It is in part to ll this normative and institutional void that
Indigenous communities and nations establish their own approach to . In
doing so, they stake their claims in the battle over the meaning of  and its
operationalisation.
4 Indigenous-Driven  Processes: Two Examples
The Squamish Nation (Skwxwú7mesh Úxwumixw, SN) is part of the Coast Sal-
ish peoples, and encompasses nine communities stretching from North Van-
couver to the northern area of Howe Sound with a total population of 3600. In
recent years, it has faced signicant pressures from industrial projects, most
notably pipeline terminals designed to facilitate the exporting of oil and gas
to Asian markets.
The SN is one of the lead opponents to the controversial Trans Mountain
pipeline extension project. It has joined a group of Indigenous nations, mu-
nicipalities and environmental activists who have successfully challenged the
constitutionality of the regulatory consultation process that led to the federal
government’s approval of the project.
While the SN has adopted a legal and political oppositional strategy in the
context of the Trans Mountain pipeline proposal, it is not the only approach
it has taken in asserting its right to decide on pipeline projects. At the same
time as it was challenging the Trans Mountain project, the SN was also devel-
oping an entirely diferent approach to exercising  for another pipeline
terminal project. Woodbre Natural Gas seeks to build a liqueed natural gas
0004449284.INDD 12 7/26/2019 4:17:33 PM
      
        () -
PG3298
() processing and export facility in the heart of the traditional territory of
the Squamish Nation. The facility is expected to operate for 25 years and have
an annual processing and exporting capacity of 2.1 million metric tons of .
The project is also expected to create approximately 600 jobs during construc-
tion and 100 permanent jobs when operational.
The project was subject to an environmental assessment process under
both British Columbia’s Environment Assessment Act and the Canadian En-
vironmental Assessment Act. While federal and provincial authorities made
their own independent decisions in authorising the project, the main assess-
ment report was completed on behalf of both regulatory authorities by the
British Columbia Environmental Assessment Oce. In compliance with its
constitutional obligations, the Environmental Assessment Oce assessed the
level of required Indigenous consultations based on a ‘spectrum’ of intensity,
according to an assessment of the strength of Indigenous rights claims and the
potential impact of the project. The Squamish Nation consultation require-
ments were considered at the ‘deeper end’ of the spectrum. However, the
process remained strictly consultative and did not guarantee Squamish Na-
tion concerns would be reected in the decision to authorise the process. Most
critically for the SN, while the government-led IA process considered the envi-
ronmental impacts of the project, it did not address its cumulative efects over
time, especially its potential long-term impact on Indigenous rights.
It is important to note at this point that while it was critical of existing feder-
al and provincial impact assessment and consultation processes, the SN lead-
ership did not reject the project outright. The nation was divided on its value,
some fearing its impact on the salmon sheries and others seeing it as an eco-
nomic opportunity. The Squamish Chiefs and Council therefore sought to
assert its jurisdictional capacity to make a free and informed decision concern-
ing the project, based on the SN’s own concerns and interests. The SN was, in
other words, seeking to assert its capacity to express  in a manner that is
consistent with its right to self-determination.
 Woodbre , The Woodbre  Project, <www.woodbrelng.ca/the-project/about-
the-project/>, visited on 29 March 2019.
 British Columbia, Environmental Assessment Oce, Woodbre  Project Assessment
Report, 19 August 2015, <projects.eao.gov.bc.ca/api/document/58869291e03601057690
bc/fetch>, visited on 29 March 2019.
 Ibid, p. 265.
 A.S. Bruce and E. Hume, The Squamish Nation Assessment Process: Getting to Consent (Rat-
clif & Co. , Vancouver, 2015).
 Interview notes with Aaron Bruce, October 2017.
0004449284.INDD 13 7/26/2019 4:17:33 PM
  
        () -
PG3298

To do so, the Squamish Nation created its own impact assessment (IA) pro-
cess, in order to make their own decision on the value of the project. The SN
faced many hurdles in developing its own IA model. For one, as a Band un-
der the federal Indian Act, the Squamish Nation Council does not have the
authority, under Canadian law, to create its own enforceable IA process. The
process therefore ran the risk of being purely symbolic unless it was recognised
in some form or another by regulatory authorities and the project proponent.
Secondly, the SN sought to establish a comprehensive, credible and legitimate
IA process. From the outset, the goal was to develop an evidenced-based pro-
cess so the community had as much information as possible to deliberate over
the value, risks and benets of the project prior to its approval. To do so re-
quired expertise and resources the community did not have.
Instead of engaging in a unilateral but largely symbolic process, the SN
sought to convince the project proponent to support its community-driven im-
pact assessment process. This, as it turned out, was key to its success. Not only
did the project proponent agreed to collaborate and fund the process, it also
committed in a legally binding private agreement to respect its outcome.
The project proponent saw its interest in developing a joint process. In the
absence of a treaty or another agreement to that efect, the Squamish Nation’s
rights to the land remain unsettled. Building on the Supreme Court reasoning
in the previously cited Tsilhqot’in Nation v. British Columbia case, the Squamish
Nation could potentially see their Aboriginal title recognised in court, which
would lead to a stronger post-facto obligation to obtain their consent for the
project. Under this uncertain legal context and facing a risk of signicant
delays and costs, engaging with the Squamish peoples was a way to limit exter-
nalities for Woodbre Natural Gas.
A Framework Agreement was signed between Woodbre Natural Gas and
the Squamish Nation on 24 July 2014. The agreement established the Squamish
Process, which the parties agreed would be separate from the federal and pro-
vincial IA processes. The proponent agreed to fund the process and provide the
SN with all requested technical information on the project. It also agreed to a
condentiality clause so that the information provided by both parties could
not be used as evidence by the Crown to discharge its own duty to consult.
The proponent nally agreed to consider the mitigation measures proposed
 Ibid.
 Woodbre , Letter concerning the Squamish Nation Environmental Conditions, British
Columbia Environmental Oce doc. No. 150728 Letter  S.13, 26 June 2015.
 Tsilhqot’in Nation v. British Columbia, supra note 17.
 Interview notes with Woodbre Natural Gas ocial (anonymous), October 2017.
0004449284.INDD 14 7/26/2019 4:17:33 PM
      
        () -
PG3298
by the SN and, most importantly, to respect the outcome of the process. For
Woodbre Natural Gas, the agreement created legal certainty. For the SN, it
was a concrete way to exercise its authority on its traditional territories outside
of existing governmental mechanisms.
While the proponent was closely involved in the SN IA process, its meth-
odology and scope were dened by the community, through an engagement
process driven by the Squamish Chiefs and Council. Instead of reproducing
federal and provincial IA processes, the Squamish Process focused on issues
of direct concern to the community: the impacts of the project on land and
waters, issues of governance, transmission of culture and history, etc. Com-
munity engagement was at the heart of the IA process. Community meetings,
focus groups and direct dialogue with individual members allowed for a strong
internal deliberative process. At the end of the process, the SN had a list of
25 conditions and mitigation measures that were submitted to the proponent
and the relevant government authorities as preconditions to the emission of a
Squamish Certicate of Approval. All conditions were eventually accepted by
the proponent. The Squamish Chiefs and Council formally endorsed the proj-
ect and agreed to an Impact and Benets Agreement in 2018.
In order to maximise the impact of their community-driven process, the
Squamish Nation also sought to have it recognised by federal and provincial
authorities as a distinctive but binding process. Not surprisingly, both levels
of government were reluctant to recognise the authority of the SN process. As
a result, the Squamish Nation did not formally engage in the regulatory con-
sultation process, insisting instead on a government to government process to
decide on the value of the project and discuss its impact on their rights and
title. While they were not successful at having their process formally recog-
nised by the BC Environmental Assessment Oce and its federal counterpart,
in their written justication for approving the project, the provincial Ministers
 Bruce and Hume, supra note 39.
 Squamish Nation, Written Submission to the  Review Expert Panel, 23 December 2016,
<eareview-examenee.ca/wp-content/uploads/uploadedles/01313275.pdf>, visited on 29
March 2019.
 Squamish Nation, Squamish Nation Council Approves Agreements with Woodbre 
Project, 23 November 2018, <www.squamish.net/squamish-nation-council-approves-
agreements-with-woodbre-lng-project/>, visited on 29 March 2019.
 Squamish Nation, Letter to Ministers Coleman and Polak Re. Woodbre  Project Envi-
ronmental Assessment, 14 August 2015, <projects.eao.gov.bc.ca/api/document/5886929ae
03601057690c0/fetch>, visited on 29 March 2019.
0004449284.INDD 15 7/26/2019 4:17:33 PM
  
        () -
PG3298

responsible nonetheless explicitly refer to the Squamish Process and the proj-
ect proponent’s commitment to comply with its 25 conditions.
In developing their own IA process, the Squamish Nation sought to force
other actors to acknowledge its legitimacy and authority as a decision-making
agent. While it was successful in establishing a binding agreement with the
project proponent, it was less successful with federal and provincial authori-
ties. It nonetheless created a precedent the Ministers responsible for authoris-
ing the project simply could not ignore. In doing so, it succeeded in dening
 on its own terms. As Chief Ian Campbell declared when the Squamish
Nation nally approved the project:
The Squamish Process was set in motion to ensure our Aboriginal rights
and title interests are protected … We won’t allow outsiders, whether they
support the proposal or oppose it, to decide for us. It is our future – our
decision to make.
Our second example is the Cree Mining Policy. The Cree Nation of Quebec is
composed of nine communities in Eeyou Istchee, the traditional Cree territory
in the James Bay region, with a total population of 18,000 people. In 1975, the
Cree signed Canada’s rst modern treaty, the James Bay and Northern Quebec
Agreement. The  was an out of court settlement following legal proceed-
ings engaged by the Cree and other Indigenous communities against the James
Bay hydroelectric megaproject. In exchange for monetary compensation and
a land regime that, among other things, protects Cree hunting and trapping
rights, the Cree “ceded and released” all other rights they may have over the
territory covered by the agreement, including a possible Aboriginal title. They
therefore do not have the same legal leverage as the Squamish Nation in creat-
ing uncertainty over jurisdictional issues on their traditional lands. They do,
however, have signicant institutional resources and political clout.
Unlike more recent land claims agreements, the  did not create a
self-government structure for the Cree. It nonetheless established a series of
Cree-controlled local and regional administrative structures, which, follow-
ing successive agreements with the provincial government in 2011 and the
federal government in 2017, were consolidated under the umbrella of a sin-
gle entity,the Cree Nation Government (). In addition to this powerful
 British Columbia, Environmental Assessment Oce, Reasons for the Ministers’ Decision
for the Woodbre  Project, 26 October 2015, <projects.eao.gov.bc.ca/api/document/588
69299e03601057690bf/fetch>, visited on 29 March 2019.
 Squamish Nation, supra note 47.
0004449284.INDD 16 7/26/2019 4:17:33 PM
      
        () -
PG3298
administrative structure, the Cree Nation has a powerful political arm in the
Grand Council of the Crees of Eeyou Istchee (), the corporate body that
signed the  on behalf of the Cree. The  and the  have a com-
mon elected board and executive.
The  does not provide for Cree consent on projects on their tradition-
al lands outside of the immediate boundaries of the communities themselves.
Instead, the  appoints half the members of the federal and provincial
regional boards that were created under the  to evaluate the impact of
projects in Eeyou Istchee. However, these IA boards only have recommenda-
tion power. The ultimate decision to authorise a project remains in the hands
of the federal or provincial government, depending on the nature of the
project.
In light of these limitations, the Cree have faced their share of non-
consensual decisions concerning resource extraction since the signing of the
 in 1975. From forestry to hydroelectric projects, they have regularly
made national and international headlines for their mobilisation and staunch
armation of their right to say no to projects that could have a negative im-
pact on their traditional lands. While the  provides only limited legal
foundations to oppose these projects, it gave the  and the  signif-
icant political and nancial resources, which were mobilised over the years
against a number of projects.
While political and legal mobilisations proved efective in asserting Cree
opposition to some development projects, it remained essentially an oppo-
sitional strategy driven by power politics, coalition-building and the tireless
work of a team of legal advisors well-versed in Aboriginal law. The Cree did not
have clear principles or guidelines on the kind of project they were willing to
accept and under what criteria they were willing to do so. The mining boom of
the late 2000s prompted the Cree to adopt their own mining policy in 2010.
The policy clearly states that the Cree are “not in principle opposed to mining
development on their traditional territory”, but that mining projects need to
respect the principles established in the policy. In his foreword to the policy,
 Cree Nation Government, Cree Nation Government: Governance and Structure, <www.
cngov.ca/governance-structure/>, visited on 29 March 2019.
 T. Rodon, ‘From Nouveau-Québec to Nunavik and Eeyou Istchee: The Political Economy
of Northern Québec’, 38 Northern Review (2015) pp. 93–112.
 Jenson and M. Papillon, ‘Challenging the Citizenship Regime: The James Bay Cree and
Transnational Action’, 28:2 Politics & Society (2000) pp. 245–264.
 Cree Nation Government, Cree Nation Mining Policy, 2010–17, <www.cngov.ca/environment/
mining/>, visited on 29 March 2019.
0004449284.INDD 17 7/26/2019 4:17:34 PM
  
        () -
PG3298

Cree Grand Chief Matthew Coon Come unequivocally states that Cree consent
is required for projects in Eeyou Istchee:
It is clear in our policy that no mining development will occur within
Eeyou Istchee unless there are agreements with our communities. Those
agreements will need to address a wide range of social, economic and
environmental concerns on the part of our communities. Through these
agreements we will ensure that mining development is in keeping with
our traditional approach to sustainable development.
Unlike the Squamish Nation, who created its own IA process, the Cree opted
to continue to rely on existing co-managed IA processes created under the
 to inform their decision-making. However, like the Squamish Nation,
they have made their support for a project conditional on the negotiation of
an agreement with the project proponent. Cree consent is therefore tied to the
negotiation of an , but the decision to sign or not an  is subject to an
internal deliberative process at the community and at the regional level.
The Cree Nation Mining Policy itself has no legal force under Canadian law.
It is largely a symbolic policy designed to establish the principles and pro-
cesses that should guide the expression of Cree consent. The strength of the
Cree Nation policy lies elsewhere, in the mobilisation capacity of the 
and in its capacity to inuence project proponents and federal and provincial
authorities. The goal of the policy is to create a process that establishes the
jurisdiction of the Cree Nation, thereby forcing other actors to make a dicult
choice: acknowledge the Cree process or face the consequences, which include
costly legal challenges that can signicantly delay a project and/or political
mobilisations in the form of national and international public relations cam-
paigns against the project.
The Cree policy was efective in the context of a gold mine project 190 km
to the east of the community of Wemindji. In that case, both internal com-
munity consultations and public hearings organised through the regional
co-management board were conducted. Satised with these processes, the
Cree authorities notied the proponent that they were willing to negotiate an
agreement, based on some of the conditions dened through the IA process.
 Ibid, p. 1.
 T.D. Monaghan, A. M. Hernandez and K. LeBlanc, ‘Exploring the dynamic between the
environmental and social impact assessment () and impact benet agreement ()
processes by demonstrating the benets and limitations of each process as assessed
through the lens of an environmental Cree communication strategy’, presented at the
 2016 conference, Aichi-Nagoya, Japan, 11–14 May 2016.
0004449284.INDD 18 7/26/2019 4:17:34 PM
      
        () -
PG3298
The Opinagow Collaboration Agreement was signed in February 2011 with
GoldCorp. The agreement clearly stipulates in section1.12 that by signing this
agreement, the Cree were exercising their capacity to consent to the project:
“Within the scope of the rights of each Party and of Applicable Laws, the Cree
Parties consent to the Eleonore Project in accordance with the terms of this
Agreement”.
In this example, consent was codied through an , but the latter was
negotiated under conditions established by the community and only once the
community accepted the project in principle. A second example, the Matoush
uranium mine, located near the Cree community of Mistissini, illustrates how
the Cree mining policy can also be mobilised as a foundation for refusing a
project. This is a project that stirred controversy from the outset, with many
Cree hunters expressing reluctance to see this type of mining on their ances-
tral land. The two co-managed IA reviews gave a positive recommendation
to the project, but emphasised the absence of a clear “social license” as a caveat
to its authorisation.
This, of course, was not in itself enough to halt the project, but the Grand
Council of the Crees of Eeyou Istchee added pressure on the proponent by
refusing to engage in  negotiation, based on the lack of local consent. The
Cree used their Mining Policy to challenge the legitimacy of the project, based
on their own jurisdictional right to say yes or no. Faced with a potentially long
and costly legal battle, the Government of Quebec sought to preserve its rela-
tionship with the Cree. It announced in 2013 a moratorium on uranium min-
ing, putting an end to the project. While a number of considerations entered
in the decision, the Minister underlined the lack of Cree support in a letter to
the project proponent explaining its decision:
The absence of social acceptability on the part of the Cree community,
the population directly afected by the Project, is obvious and determina-
tive … as far as we know, there is no agreement between the proponent
 Grand Council of the Crees, Opinagow Collaboration Agreement, as amended, 8 May 2015,
<s22.q4cdn.com/653477107/les/doc_downloads/portfolio_docs/eleonore/goldcorp-
opinagow-en-web.pdf>, visited on 29 March 2019.
 S. Bourgeois, Comprendre la construction du moratoire administratif sur l’exploration/
l’exploitation uranifère: L’inluence des coalitions allochtones et autochtones (Department
of Political Science, Université Laval, Quebec, 2017).
 J. Orkin, ‘Consent and Consultation: Case Study of the Cree Nation’s Stand against
Uranium’, presented at the Modern Treaty and Reconciliation Conference (Ottawa, Novem-
ber 2017), <landclaimscoalition.ca/pdf/BO1B-ConsentandConsultation-Orkin171114.pdf>,
visited on 29 March 2019.
0004449284.INDD 19 7/26/2019 4:17:34 PM
  
        () -
PG3298

and the Cree community of Mistissini. … Under these circumstances,
your Project has not obtained social acceptability and therefore does not
accord sucient importance to the principles enumerated in the Envi-
ronmental Quality Act, particularly with regard to the protection of the
social environment and the protection of Aboriginal peoples, their soci-
eties, their communities and their economy.
This case illustrates how the institutionalisation of , through the Cree
Nation Mining Policy, forced other actors to acknowledge Indigenous under-
standing of what consent means and how it should be expressed. In this case,
as with the Squamish Process, it is the institutional gap between the principle
of Indigenous consent and the relative absence of a clear mechanism to estab-
lish this consent that opened the door to the Cree appropriating the language
of consent and creating their own approach to implementing it.
5 Conclusions
While  is increasingly part of Canada’s normative landscape, it is still a
contested norm. Its meaning, scope and operationalisation are all debated in
the political and legal arenas by actors who seek to establish their own vision
of the norm and their own mechanisms to translate it in practice. Of course,
this political process is not taking place in a vacuum. Settler colonial policy
legacies and their underlying conception of Indigenous-state relations pro-
foundly shape how  is apprehended in the Canadian context. Jurispruden-
tial interpretations of constitutionally protected Aboriginal and treaty rights
also inuence how governments, industry and Indigenous actors translate the
norm in their own practices.
As elsewhere, the language of consultation and consent is also interpret-
ed by Canadian governments and industry actors to limit the normative and
practical implications of . By engaging in existing federal and provincial
IA mechanisms, Indigenous peoples agree to an operationalisation of 
understood as a participatory right of consultation within decision-making
 Québec, Ministère du Développement durable, Environnement et Lutte contre les
changements climatiques, ‘Développement de la lière uranifère : Le gouvernement an-
nonce la réalisation d’études et cone au  un mandat d’enquête et de consultation,
Press Release, 28 March 2013, <www.environnement.gouv.qc.ca/infuseur/communique.
asp?no=2383>, visited on 29 March 2019.
 Shilling-Vacaor, supra note 2; Fredericks, supra note 6; Szablowski, supra note 15.
0004449284.INDD 20 7/26/2019 4:17:34 PM
      
        () -
PG3298
structures they do not control. While s create a process under which In-
digenous consent is explicitly recognised by project proponents, they can also
result in a truncated form of consent premised on a cost-benet logic that does
not necessarily reect community concerns and ontological views of land and
natural resources development.
In light of this limited landscape, Indigenous peoples are asserting their
own understanding of . Indigenous strategies to translate  on their
own terms can take various forms, but the development of community mech-
anisms for expressing consent (or lack thereof) can be a particularly potent
approach for communities seeking agency in dening how  should be op-
erationalised. As the two examples discussed here show, through community-
driven strategies, Indigenous peoples can shift the ‘site’ for implementing 
from state-driven consultation and industry-driven s to processes they con-
trol. In the absence of a clear legal framework or mutually agreed upon and
institutionalised procedures to seek Indigenous consent, governments and
corporations engaged in the extractive sector are forced to position themselves
in relation to these alternative Indigenous-driven mechanisms. Both the proj-
ect proponent and regulatory bodies at the federal and provincial levels were
forced to acknowledge the legitimacy of the Squamish Process. Similarly, the
Cree Nation Mining Policy served to establish a clear process through which
the Cree could say yes or no to various projects.
By asserting control over the process through which they express their
consent, the Cree and Squamish also clearly positioned  as a matter of
jurisdiction rather than as a right to participate in state-led decision-making,
therefore reconnecting  with its original formulation in the  as
an expression of Indigenous peoples’ right to self-determination. The James
Bay Cree have agreed to engage in regulatory public hearings, but they also
conduct their own consultations and make their approval of mining projects
conditional on the negotiation of an agreement with the proponent. In setting
the criteria for such an agreement, they take ownership of the process rather
than letting the proponents dene it. The Squamish Nation chose a diferent
route. The Squamish Chiefs decided to create their own impact assessment
process in collaboration with the proponent. In doing so, they shifted from the
position of being consulted in a decision-making process they did not control
to actually making the decision themselves.
If this strategy of norm appropriation through community-driven processes
can potentially shape how  is implemented, it remains a political process
and the success of these strategies ultimately depends on their recognition by
 Papillon and Rodon, supra note 5.
0004449284.INDD 21 7/26/2019 4:17:34 PM
  
        () -
PG3298

third parties. While some Indigenous communities engage in unilateral norm
appropriation in the absence of any dialogue with state and corporate actors,
our two cases suggest a more efective way to shape  implementation is
to create processes that benet from some level of recognition and legitimacy
by third parties, through negotiated agreements or through power politics.
The capacity to ‘scale up’ the internal process in order to give it legitimacy and
meaning in the eyes of other actors is important. Comparisons with other suc-
cessful and less successful examples of Indigenous-led processes could lead to
possible explanations for when and how these strategies actually do scale up
and are recognised by other parties.
For appropriation to be more than merely symbolic, it also requires signi-
cant institutional resources and capacity. The Cree Nation benets from strong
institutions resulting from the  and a long experience in developing their
own corporate processes in land and environmental management. The Squa-
mish Nation benets from a complex legal context that creates powerful in-
centives for government and industry actors to collaborate with them. Smaller
Indigenous communities may not have the same capacity to engage in the de-
velopment of complex impact assessment and decision-making mechanisms.
Again, a broader comparative analysis could shed some light on the potential
and limits of diferent strategies for smaller or less resourceful communities.
0004449284.INDD 22 7/26/2019 4:17:34 PM
... FPIC has become a key assertion of the Indigenous rights movement in dealings with government and industries in matters of resource development. Indigenous groups are also asserting FPIC through the development of internal laws, procedural guidelines and negotiated agreements (Doyle, 2015;Papillon and Rodon, 2020). While international recognition of FPIC has mostly focused on Indigenous peoples, there is also a movement underway to extend FPIC rights to communities, whom are governed by traditional systems but lack legal protection (Lehr and Smith, 2010). ...
... This issue of conceptual differences with regards to the meaning of FPIC conveyed both in design and implementation is the central topic of this paper. Indeed, some describe FPIC as a contested norm due to the lack of a shared definition of the concept and the fundamental parameters for its implementation (Fontana and Grugel, 2016;Papillon and Rodon, 2020). Although the foundations of FPIC, based in a human rights discourse (and articulated in documents such as UNDRIP), are clear and widely supported, in the sphere of application, conceptions and approaches diverge. ...
... Finally, the academic literature also points to a tendency, especially amongst the corporate sector, to adopt a discourse which realigns FPIC with notions of 'participation' or 'community engagement', and which minimizes the obligation of ensuring a substantive role for Indigenous peoples in decision-making. This conception, has been called 'procedural' (Papillon and Rodon, 2020), because it shifts the underlying purpose of FPIC to one of ensuring a sufficient level of community input and/or support for a project (similar to a social license), often using technical or administrative means, rather than ensuring broad community acceptance based on a deliberative collective and politically autonomous decision-making process. Yaffe (2018) argues that 'procedural' conceptions of FPIC are driven by corporate agendas and considerations, such as mitigating corporate risk, managing impacts and ensuring community buy-in. ...
Article
An increasing number of sustainability standards integrate the principle of free, prior and informed consent (FPIC) as a requirement to ensure respect for the rights of Indigenous peoples. FPIC remains a contested norm, due in part to divergences of interpretation and gaps in implementation. Drawing on a typology based on FPIC conceptions, this paper presents a comparative analysis of the Forest Stewardship Council’s (FSC) standard development processes in three countries, Canada, Russia and Sweden. The paper investigates the dynamics of designing FPIC requirements and conceptions of FPIC reflected in national standards. Drawing on semi-structured interviews and analysis of written standards, this study finds similarities in terms of the key debates, such as the scope of Indigenous authority and applicability of FPIC to non-Indigenous communities, however underscored by different stakeholder dynamics and outcomes. Despite the structuring presence of International Generic Indicators, different conceptions of FPIC are reflected in national standards.
... While at the heart of the United Nations Declaration of Rights for Indigenous Peoples (UNDRIP), FPIC remains a contested norm as its implementation is highly contentious among industry and state actors fearful that an acceptance of FPIC means an Indigenous veto over resource development projects in their territory (Papillon & Rodon, 2017). Consent-as-veto is a polarizing discourse that brings about significant differences in the meaning, scope and practice of the norm (Papillon & Rodon, 2020). This debate highlights power and equity issues around what constitutes consent, who defines community consent, and who within the community has the authority to give consent, and to whom (Mitchell, Arseneau, Thomas, & Smith, 2019;Papillon & Rodon, 2020). ...
... Consent-as-veto is a polarizing discourse that brings about significant differences in the meaning, scope and practice of the norm (Papillon & Rodon, 2020). This debate highlights power and equity issues around what constitutes consent, who defines community consent, and who within the community has the authority to give consent, and to whom (Mitchell, Arseneau, Thomas, & Smith, 2019;Papillon & Rodon, 2020). Papillon and Rodon (2020) indicate that while much of this debate has focused on Western-centric approaches, limited attention has been given to Indigenous views of consent and how they might translate to practice. ...
... This debate highlights power and equity issues around what constitutes consent, who defines community consent, and who within the community has the authority to give consent, and to whom (Mitchell, Arseneau, Thomas, & Smith, 2019;Papillon & Rodon, 2020). Papillon and Rodon (2020) indicate that while much of this debate has focused on Western-centric approaches, limited attention has been given to Indigenous views of consent and how they might translate to practice. Mitchell et al. (2019) propose an Indigenous-informed relational approach to FPIC that might address the ontological differences that are the core divide between FPIC definitions, centering the goal of reaching a mutually agreeable outcome. ...
Article
Full-text available
With an increasingly political environment developing in western, industrialized resource sectors, the purpose of this paper is to explore Indigenous governments’ ability to assert sovereignty over their territory as it pertains to resource development. Utilizing a relational self-determination framework, we present a case study of the Stk’emlupsemc te Secwépemc Nation and their role in governance over mineral development in their unceded traditional territory located in the interior of British Columbia, Canada. This article adds to the growing case examples that suggest that First Nations governments in Canada are exerting their self-determination strategically, transitioning the role of negotiated agreements from an Impact-Benefit transaction to gain greater participation in resource extraction decision-making. Utilizing tools such as cultural heritage studies, legal action, and developing community-based processes of consent, First Nations governments are gaining more negotiating leverage and influence over decision-making processes for resource development projects. These insights are particularly relevant for Indigenous communities that are considering their options regarding resource development as a path to autonomy and self-governance over their territory, resources, and economies.
... In comparison with most other Indigenous Nations in Canada, the Cree of Eeyou Istchee enjoy significant economic and institutional resources as well as political clout. While the JBNQA only provides them with limited legal foundation to oppose unwanted projects, this First Nation has generally succeeded in either interrupting their construction through settler state interventions (such as Quebec's moratorium on uranium mining; see Papillon and Rodon, 2019) or compelling these projects' promoters to meaningfully engage with them as partners. ...
Article
Full-text available
In Canada, the relationship between Indigenous Nations and mining corporations is characterized by asymmetrical power dynamics. To address this situation, several Indigenous Nations who see mining as an opportunity to realize their financial autonomy have developed mechanisms to enhance their capacity to regulate how their traditional territories are exploited. Drawing on collaborative research conducted with the Cree of Eeyou Istchee, we show how these initiatives can allow Indigenous peoples to reconcile mining with ways of life seemingly at odds with extractive development. From local perspectives, the Eeyouch have managed to persuade the developers of the mine operating on their territory to meaningfully engage with Iiyiyiuituwin —the “Eeyou way of life,” fundamentally anchored in respect for and reciprocity with the land. While numerous Indigenous Nations exercise their sovereignty by opposing extractive development, others realize it through building relationship with corporations in ways that sustain their enduring political philosophy.
... En kan også spørre seg hvor langt Sametinget kan gå i retning av å vaere «utsettere» eller til og med «stoppere» av store og mellomstore industriprosjekt uten at lokal og regional konflikt blir ødeleggende for alle parter i et så integrert og tillitsbasert system som det norske. Vil forståelsen av hva FNs urfolksdeklarasjon (UNDRIP) innebaerer, medføre at slik uformell og indirekte urfolksmakt vi har sett utspille seg for eksempel når det gjelder gruvedrift i Kvalsund og i en rekke vindkraftprosjekt, også bli omformet til formell makt gjennom en styrking av kravene til «Free, prior and informed consent» (FPIC) (Papillon & Rodon, 2019)? Hva vil det ha å si for det lokale og regionale politiske miljøet i nord at samepolitikken gjennom tilkoblingen til det globale urfolksfeltet i økende grad framstår som noe annet og mer enn lokale og regionale saerinteresser? ...
... Toutefois, en imposant aux gouvernements un devoir de consulter, sinon même d'obtenir le consentement des autochtones, afin de limiter les atteintes à ces droits, elle se trouve à encourager indirectement les communautés autochtones à fixer elles-mêmes les balises d'une consultation jugée adéquate. Et quelle meilleure démonstration de leur bonne foi les gouvernements et les promoteurs pourraient-ils faire, sinon en adhérant volontairement aux critères de consultation élaborés par les communautés autochtones ?Enfin, il ne faut pas oublier que les délais et les coûts associés à l'incertitude juridique entourant l'obligation constitutionnelle de consulter et d'accommoder les droits ancestraux et issus de traités sont, en eux-mêmes, une raison suffisante pour les promoteurs et les gouvernements de chercher à obtenir le consentement des communautés autochtones(Coates et Flavell 2016;Forget 2018;Papillon et Rodon 2017). Une manière efficace d'y parvenir est d'obtempérer à l'application des protocoles unilatéraux autochtones. ...
Article
Full-text available
This article argues that the (Western-oriented) right to religion has been proven inadequate in protecting Indigenous Peoples’ rights. It recognizes that this is partly because of the distinctive characteristics of Indigenous religions, which differ from other dominant religions, but also because of the way in which religion has been used by colonialism with dramatic effects on Indigenous Peoples and their beliefs, spiritualities, and worldviews. The article focuses on Latin America to argue further that in addition to colonialism, the early Constitutions also attacked Indigenous religions. As Indigenous rights are more acknowledged in Latin America, we take this region as an excellent, albeit painful, example of how Indigenous religions have been pushed aside even in the most positive contexts. The article uses the constitutional and legal arrangements in Latin American states, mainly Ecuador and Bolivia, to critically assess the protection that these favorable to Indigenous Peoples legal systems’ guarantee to Indigenous rights despite a persistent implementation gap. Also, this article highlights the weaknesses of the international system in mitigating the manifold threats that Indigenous Peoples have to face on a daily basis in their struggle to maintain and transmit their religions and spirituality, including the assault of other religions and sects into their communities and the so-called neo-extractivism. The article finally draws some concluding remarks and recommendations on how to improve the freedom of and violations from religion(s) of Indigenous Peoples in the context of Latin America as well as international law more broadly.
Article
In the Schefferville mining region, as in many other places in Canada, Indigenous peoples experience and negotiate mining encounters at the crossroads of overlapping, and often competing, governance frameworks and territorial rights regimes. While prevailing legal frameworks shape the participation of Indigenous peoples in mining decision-making processes, ambiguities in these arrangements, as argued by researchers, can also generate spaces for Indigenous peoples to assert their jurisdiction and exercise their agency on extractive projects within their traditional lands. Drawing on participant observation during our field school in the region of Schefferville and on one of the authors’ fieldwork, this article uses the case of Tata Steel Minerals Canada’s projects to highlight how the different colonial trajectories and Indigenous peoples’ rights configurations in the area have contributed to shape the agency of Indigenous peoples in mining development. Our case study illustrates how Indigenous peoples’ agency in mining projects can be embedded within, or emerge beyond, the formal recognition of Indigenous peoples’ rights through the mobilization of a variety of political and legal strategies.
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Full-text available
Le projet d’uranium Matoush de Ressources Strateco était promu par le gouvernement Charest, notamment dans le Plan Nord ; cependant, il n’était pas acceptable pour la communauté crie de Mistissini qui a obtenu l’appui du Grand Conseil des Cris d’Eeyou Istchee. Cet article documente la mobilisation de la norme du CPLE (Consentement préalable, libre et éclairé) par les Cris dans leur opposition au projet. Les auteurs montrent qu’en bloquant le projet Matoush, les Cris ont su créer un contexte politique favorable au respect de leur consentement sur la gestion des activités extractives, comme la politique minière crie l’indique clairement. Ils mettent ainsi en oeuvre le CPLE prévu par la Déclaration des Nations unies sur les droits des peuples autochtones et ce, même si le Canada ne l’a pas encore mise en oeuvre dans ses législations
Comprendre la construction du moratoire administratif sur l'exploration/ l'exploitation uranifère: L'influence des coalitions allochtones et autochtones
  • S Bourgeois
S. Bourgeois, Comprendre la construction du moratoire administratif sur l'exploration/ l'exploitation uranifère: L'influence des coalitions allochtones et autochtones (Department of Political Science, Université Laval, Quebec, 2017).
Consent and Consultation: Case Study of the Cree Nation's Stand against Uranium' , presented at the Modern Treaty and Reconciliation Conference (Ottawa, November 2017), <landclaimscoalition.ca/pdf/BO1B-ConsentandConsultation-Orkin171114.pdf>
  • J Orkin
J. Orkin, 'Consent and Consultation: Case Study of the Cree Nation's Stand against Uranium', presented at the Modern Treaty and Reconciliation Conference (Ottawa, November 2017), <landclaimscoalition.ca/pdf/BO1B-ConsentandConsultation-Orkin171114.pdf>, visited on 29 March 2019.