The inherent right of Indigenous peoples to free, prior and informed consent (FPIC), has been prominent in public discourse in British Columbia and Canada recently. FPIC has been informed by multiple articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). [Note 1] Following Cowichan Tribes v Canada (Attorney General), 2025 BCSC 1490 and Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 last year, which were released in the midst of an unprecedented economic threat from the United States, fear mongering regarding Indigenous rights has sadly accelerated. But advancing Indigenous rights is a moral and legal imperative that aims for a more just and prosperous future for everyone.
What FPIC is for. FPIC is a critical procedural safeguard designed to ensure that substantive Indigenous rights are fully realized and respected. The former UN special rapporteur on the rights of Indigenous peoples, James Anaya, explained:
“…together, principles of consultation and consent function as instrumental to rights of participation and self-determination, and as safeguards for all those rights of indigenous peoples that may be affected by external actors, including rights that indigenous peoples have under domestic law or treaties to which they have subscribed, or rights recognized and protected by authoritative international sources like the United Nations Declaration on the Rights of Indigenous Peoples…”
(emphasis added, para. 28 of the Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, A/HRC/24/41, 1 July 2013)
The Indigenous jurisdiction underlying the “veto” debate. Understanding FPIC as an instrumental or procedural safeguard for other substantive Indigenous rights helps clarify a longstanding debate about whether or not FPIC amounts to an Indigenous “veto” over projects or decisions that affect them. FPIC is not a “veto”, because that implies an arbitrary ability to override decisions of other levels of government, in the way that a private landowner might refuse to leave property that is in the way of a new highway. But Indigenous peoples are not like fee simple owners – they are peoples (or pre-colonial states) with self-determination and inherent jurisdiction. Fully realized FPIC rights would be an expression of that jurisdiction as party of a legal pluralistic confederation. Decades ago, Campbell et al v. AG BC/AG Cda & Nisga’a Nation et al, 2000 BCSC 1123 recognized an Indigenous “right to self-government akin to a legislative power to make laws” as an unwritten underlying value of the Constitution (para. 81). The promise of reconciliation embedded within s. 35 of the Constitution Act, 1982 is the promise of a recognized Indigenous sphere of jurisdiction, sitting equally with federal and provincial powers set out in ss. 91 and 92 of the Constitution Act, 1867.
We are not there yet, unfortunately. Indigenous peoples must still spend millions of dollars and an unreasonable amount of time either in complex negotiations or acrimonious litigation, simply to get recognition of their inherent, unceded rights, notwithstanding s. 35’s recognition of “existing” rights.
Canada’s and BC’s commitment to UNDRIP opens the door to a different and more promising way of advancing reconciliation. In terms of FPIC, in the absence of Crown recognition of Aboriginal title (most of BC remains unceded territory, with the Crown merely recognizing “claims” of title), courts are already recognizing that UNDRIP’s application to Canadian law has altered existing constitutional doctrines on the duty to consult.
The presumption of conformity. Gitxaala concluded that there is a presumption of conformity between Canadian laws and UNDRIP, given Canada has bound itself to UNDRIP by endorsing it without reservation and passing implementation legislation. As one result of this, the court said that Indigenous peoples may raise their UNDRIP rights during consultations (para. 163). In the Federal Court case of Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, the court also concluded there is a presumption of conformity and that this “gives rise to an enhanced obligation to consult” (para. 124), consistent with FPIC, which is a “single universal standard” rather than “a spectrum based on the strength of the section 35 right asserted” (para. 112). A decision on the appeal from the Federal Court of Appeal is pending.
The end of the “pending claim”. In practice, this means that Crown decision makers can no longer rely on consultation frameworks developed after Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, which articulated a duty to consult “pending resolution of the claim” (para. 27). The concept of “pending claims” to rights is incompatible with UNDRIP, which, like s. 35(1), treats Indigenous rights as existing, not to be determined.
What the FPIC standard requires. Rather, the Crown must ensure its consultations meet the FPIC standard. It must deal with First Nations as governments and must meet each element of FPIC:
- “free” (meaning “no coercion, intimidation or manipulation” – so, for example, no economic pressure and no “divide and conquer” tactics relying on purported agreement by one group to pressure others),
- “prior” (meaning consent sought “sufficiently in advance” and “respect is shown to time requirements” of Indigenous peoples’ own processes and legal requirements), and
- “informed” (meaning all relevant information is provided including “the nature, size, pace, reversibility and scope of an proposed project”, “the purpose of the project as well as its duration”, “locality and areas affected”, “a preliminary assessment of the likely economic, social, cultural and environmental impact”, and all in a format accessible and understandable to the relevant Indigenous peoples).
The Supreme Court of Canada recognized the need for information in a format accessible and understandable to the relevant Indigenous peoples in Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, where information was improperly provided as thousands of pages of inaccessible documentation, not translated into the Indigenous language (Inuktitut) and without any effort to determine whether the information was accessible to affected communities.
Consent becomes the faster route. These minimum procedural obligations are more important than ever, as Canada and BC continue to accelerate infrastructure and resource-extraction projects to meet the American threat. If our country is to rise to the moment, it cannot be on the backs of Indigenous peoples. Disregarding their minimum, inherent and constitutionally-protected rights is a recipe for uncertainty, litigation, and stalled projects. On the other hand, doing the work know to incorporate and respect Indigenous jurisdiction at the earliest stages of decision-making is the best way to ensure that projects that really are in the national interest can advance quickly.
A Manitoba judge, now on the Supreme Court: On the legal front, courts continue to recognize UNDRIP’s application to Canadian laws. Most recently, newly-appointed SCC Justice Joyal, when he was still at the Court of King’s Bench of Manitoba, decided in Chief Heidi Cook et al. v. The Government of Manitoba et al., 2026 MBKB 65 that “s. 35 should be interpreted consistent with international law principles, including UNDRIP” (para. 682) and, similar to the R. c. Montour, 2023 QCCS 4154 case, found the 1990s-era Van der Peet framework for assessing claims to Aboriginal rights “ill fitting when assessing an Aboriginal rights claim to self-government” (para. 682).
What comes next. We will soon hear from the Federal Court of Appeal in Kebaowek. Montour is making its way through the Quebec courts. Gitxaala will be considered by the Supreme Court of Canada, likely next year. To date, all these decisions have concluded that UNDRIP does apply to all Canadian laws, including statute, the common law and the constitution. The legal winds are shifting and the Crown should take note – it is no longer possible (and has never been ethically acceptable in any case) – to disregard Indigenous jurisdiction.
Ruben Tillman
Notes:
[Note 1] FPIC is supported by UNDRIP articles 10, 19, 29(2) and 32(2) (respecting forced relocation, administrative and legislative measures, the store of hazardous substances, and resource extraction and industrial projects, respectively), as well as articles 11(2) and 28(1) (regarding rights to redress where FPIC has not been respected).