Expectations for meaningful free, prior, and informed consent: an exploration by the Little Salmon/Carmacks First Nation

Abstract

Indigenous self-determination plays an increasingly prominent role in lands and resources development decisions. One way of operationalizing self-determination is through the realization of free, prior, and informed consent (FPIC) for development impacting Indigenous Peoples and their lands, as recognized in the United Nations Declaration on the Rights of Indigenous peoples (UNDRIP). In the Yukon, Canada, where some consent and consent-like rights are held by First Nations, few First Nations have formally articulated their expectations for the meaningful expression of their consent. This paper begins to address this gap based on a case study by the Little Salmon/Carmacks First Nation (LS/CFN), a self-governing, Northern Tutchone Yukon First Nation located proximate to past, present, and potentially future mineral development. Though LS/CFN's expectations of FPIC are not formalized today, this exploratory research presents that LS/CFN participants expect: early engagement; to be fully informed; space for self-defined internal processes; ongoing engagement with proponents and the Crown; mitigation of resource barriers; enforceability of commitments; contextually relevant processes; appropriate representation; agreed upon definitions of terminology; mitigation of power imbalances; and mutual agreement on the consent process itself. More broadly this article makes a case for a covenantal, rather than a solely contractual, approach to make FPIC meaningful.