Kenneth Deer, of the Mohawk Nation, at the Tenth Session of the United Nations Permanent Forum on Indigenous Issues.

First Nations to U.N. Forum: Prior and Informed Consent, Not Just Consultation


Canada and the U.S. may have signed on with the United Nations Declaration on the Rights of Indigenous Peoples back in November and December, respectively. But in at least two areas—genetic resources and mining—both countries are trying to wiggle out of the clause requiring “prior and informed consent” from indigenous peoples when it comes to activities on their land and person.

In a working-group session for the Commission on Sustainable Development just before the Forum began, four nations—Canada, Australia, New Zealand and the U.S.—asked that the words “free, prior and informed consent” (FPIC) regarding indigenous and local communities be deleted when it came to mining, according to session notes distributed by the Earth Negotiations Bulletin, a website that tracks information on environment and development negotiations.

Mohawk Nation representative Kenneth Deer noted as much in his May 16 address to the Tenth Session of the United Nations Permanent Forum on Indigenous Issues and spoke of the attempted undermining of the agreement in other arenas too. Speaking on behalf of Canada’s indigenous groups, Deer, who hails from the Mohawk Nation at Kahnawà:ke, expressed concern about Canada’s interpretation of the “C” in FPIC as “consultation” rather than “consent.”

FPIC shows up in four articles of the U.N. Declaration, which also says that any entity violating that right must provide redress, he noted.

“The right of FPIC has far-ranging significance for indigenous peoples, especially in the context of human rights and climate change,” he said in his statement on behalf of Canada’s First Nations organizations, as well as Amnesty International and other groups. “These issues are generally key considerations, particularly where large-scale developments are concerned.”

Other international and U.S. bodies besides the Declaration refer to consent rather than consultation, he said. For instance the U.N. Committee on the Elimination of Racial Discrimination (CERD) stipulates that “no decisions directly relating to [indigenous] rights and interests are taken without their informed consent,” he noted.

“Our organizations are deeply concerned by the continued opposition to FPIC by some states,” Deer said. “There appear to be increasing efforts to undermine or roll back this vital human rights standard.”

For instance the U.S., even back when it endorsed the Declaration, mentioned “meaningful consultation” with tribal leaders but not necessarily agreement, Deer said. Under that interpretation, governments and corporations could just tell the indigenous communities what they were doing and continue doing it.

“This is contrary to the very purpose of FIPC,” Deer said.

He called on the Permanent Forum on Indigenous Issues PFII to “adopt a standardized interpretation of FPIC” that’s “consistent with human-rights standards”; address unequal bargaining power between state and third-party developers and indigenous peoples; urge states to uphold their international obligations and to “fully respect FPIC, in regard to all customary rights of Indigenous peoples to genetic resources without discrimination. Provisions in the Nagoya Protocol that could serve to dispossess Indigenous peoples of such resources lack validity and require urgent redress.”

Lastly, Deer said, states must be urged to adopt interim measures to guard indigenous rights, including FPIC.

“Too often, such rights are violated while Indigenous peoples are engaging in their own decision-making process and in negotiations on the development project being proposed,” Deer concluded.

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