FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

Canada Announces Intent to Fully Implement UNDRIP

In May, Canada took further steps towards more fully supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had been one of the four states that voted in opposition of General Assembly approval in 2007. But with an announcement by Canada’s Indigenous Affairs Minister on May 10,2016, Canada now has declared its intention to fully implement the Declaration. 

The announcement was made during a session of the UN  Permanent Forum on Indigenous Issues.

Canada reversed its initial opposition to the Declaration in 2010, when it announced its endorsement of the instrument. 

The announcement in May of an intention to fully implement is seen by some as a milestonefor indigenous rights in Canada. 

But there are mixed views on Canada’s announcement. Tori Cress, who attended the UNPFII, does not see the intentions of implementing the UNDRIP in accordance with the Canadian Constitution as a step forward for indigenous rights. 

Cress also criticizes the UNPFII as a forum dominated by state participants, leaving the indigenous participants in a “subordinate position.” 

Grass-roots campaign to save Pe'Sla

James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, issued a call for consultation to occur over the proposed auction of land in South Dakota that is revered as a sacred place for the Lakota, Dakota and Nakota peoples.

The auction has been cancelled, but the future status of the sacred land remains unclear at this time.

Pe'Sla has a unique and special place in the cosmology of the Lakota, Nakota and Dakota peoples.

Since word of the planned auction spread, there has been a concerted effort by individuals and tribes to raise awareness about Pe’Sla and to raise funds to try to purchase at least some of the land at the auction.


The call for consultation by the UN Special Rapporteur is one that is significant. Under the United Nations Declaration on the Rights of Indigenous Peoples, there are several provisions that address indigenous rights to sacred land such as Pe’Sla.

Article 8(2)(b) requires states to have “effective mechanisms for prevention of, and redress for... any action which as the aim or effect of dispossessing them of their lands, territories or resources.” State obligations go much further than that, however. Article 26 requires states “to give legal recognition and protection” to lands which have been “traditionally owned, occupied or otherwise used or acquired.”

There can be no doubt that Pe’Sla fits the description of lands given in Article 26. The United States should heed the call to consult with indigenous groups, but its obligations transcend mere consultation. It has a duty to protect Pe’Sla.


But waiting on the United States to take actions to protect Pe’Sla might prove fruitless. To this end, an amazing grass-roots campaign was sparked, seeking donations and raising awareness about both the sacred nature of Pe’ Sla, and how the planned auction jeopardised Pe’ Sla. This campaign, organised through joint efforts of Lastrealindians.com and the Rosebud Sioux .. call for donations to help raise money towards the purchase of at least part of Pe’ Sla.

The response has been tremendous, with on-going donations now totalling over $ 266,000 with a further contribution of funds from the Rosebud Sioux Tribe of $1.3 million.

International instruments are often criticised for providing rights that are not practically accessible. It is hoped that the combined efforts of the campaigners to save Pe’ Sla, and the call issued by the UN Special Rapporteur will result in the protection of Pe’ Sla as required by the United Nations Declaration—an instrument now endorsed by the United States. Just as grass-roots advocacy movements were the genesis for the campaign for indigenous rights going international, it seems that grass-roots movements have not lost their importance in continued efforts to promote and protect indigenous rights.

International Indian Treaty Council Statement of Support for Winnemem Wintu

The International Indian Treaty Council has released a statement in support of the right of the Winnemem Wintu peoples to be able to conduct an upcoming spiritual ceremony without the disruption and disturbance that the ceremony and its participants have been subjected to in the past. The Winnemem Wintu have made requests to have the ceremonial site protected by restrictions being placed on boats going past on the river which borders the site.

The International Indian Treaty Council statement highlights provisions of the United Nations Declaration on the Rights of Indigenous Peoples that give a right to privacy to as to religious sites and the rights of indigenous peoples to exercise and express their culture:

"We affirm the inherent and inalienable rights of the Winnemem Wintu and all Indigenous Peoples, as stated in Article 11 and 12 of the United Nations Declaration on the Rights of Indigenous Peoples, “to maintain, protect and develop the past, present and future manifestations of their cultures” and “to have access in privacy to their religious and cultural sites.”"

The plight of the Winnemum Wintu peoples and their efforts to hold the ceremonies without disturbance have been the subject of previous blog posts with links here and here.

It is hoped that the United States government will take the steps necessary to ensure that the ceremonies are conducted in privacy and without fear of disrespectful interruptions. The rights that are in place in the UN Declaration are given little value and importance if they can be so easily disregarded and ignored.

When Talk is Cheap: The Meaningful Implementation of Free, Prior and Informed Consent

There has been a lot written about states' reception to the rights in the UN Declaration on the Rights of Indigenous Peoples and the need for these rights to be recognised and effectively implemented. More recently, focus has turned to the specific principle of free, prior and informed consent. Earlier blog posts have addressed the importance of adherence to this principle. There are some hopeful signs in that some companies have signalled an intention to comply with the principles of the Declaration, which then would presumably include that of free, prior and informed consent.

But--as the saying goes-- as with any of these stated intentions, actions speak louder than words. Free, prior and informed consent requires a much different sort of engagement with indigenous peoples than mere consultation.

To that end, it is useful to consider the concept of "normative salience." Normative salience considers the level to which a state puts a norm into use. Loren Cass, in his book, "The Failures of American and European Climate Policy: International Norms, Domestic Politics and Unachievable Commitments" (State University of New York Press, 2006, pgs 9-10) presents a scale of 8 different levels of salience--or 8 different levels at which a state may or may not accept a norm and put in into use.

The first level is "Irrelevance.National leaders do not acknolwedge the emergent international norm in any way, and it is not part of the foreign or domestic policy dialogue. National leaders do not even feel compelled to justify actions that contravene the proposed norm."

Mid-way on the scale at level four is "Rhetorical Affirmation. National leaders affirm the norm as a result of political pressure from within and/or internationally. The norms is now a part of the domestic and foreign policy dialogue, but it has not been translated into foreign and domestic policy changes."

The end of the scale, at level eight, is "Taken for granted. The norm has become embedded in the domestic institutional structure of the state, and compliance with the norm is nearly automatic."

Research by Sheryl Lightfoot ("Selective Enforcement without Intent to Implement: Indigenous Rights and the Anglosphere" (2012) 16(1) International Journal of Human Rights 100) looks at the issue of "selective enforcement" of indigneous rights--that is states pick and choose which rights within the Declaration they will implement and which they will not.

Thus the questions must be raised about the principle of free, prior and informed consent. Is it simply getting lip-service ( if that?) from states-- a right that will remain low on the Cass normative salience scale? Or is there an intention by states to ensure that the norm is implemented and effectively adhered to?

The words that states and corporations use to discuss free, prior and informed consent bear close scrutiny. As the Cass scale points out, talk at the rhetoric level is one thing, effective implementation another. Talk at the level of rhetoric might well be evidence of what Lightfoot cautions about: state decisions to not implement certain norms.