The United Nations Declaration on the Rights of lndigenous Peoples (UNDRIP) stipulates that States shall consult in good faith with Indigenous peoples in order to obtain their free, prior and informed consent (FPIC) before implementing measures that may affect them.1 The federal UNDRIP Act affirmed that UNDRIP has legal effect in Canada as an international human rights instrument.2 The Truth and Reconciliation Commission’s Call to Action #92 calls upon the corporate sector to adopt and implement UNDRIP “as a reconciliation framework and to apply its principles, norms, and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources.
Foley Hoag LLP’s report to banks which funded the controversial Dakota Access Pipeline Project recommended that international industry good practices on FPIC mean going beyond the minimum standards set by domestic law.4 Failing to consider FPIC also overlooks a material risk. Companies which only seek domestic legal minimums and fail to obtain FPIC routinely see project delays, conflict, and other significant legal, political, reputational and operational risks.
The Government of Canada has stated that FPIC is contextual and there is no “one size fits all” approach, and operationalizing FPIC may require different processes or new creative ways of working together.5 A 2019 paper prepared for the Union of BC Indian Chiefs (UBCIC) entitled Consent 6(Consent Paper) attempts to clear up misconceptions about FPIC, namely that:
• “consent” and “veto” are not the same; they have different meaning and uses; and
• FPIC is not an extension of consultation and accommodation, which are procedural in nature. The Consent Paper outlines certain ways in which Canadian businesses can operationalize FPIC, including: • seeking and confirming Indigenous consent prior to major Crown processes;
• outlining the conditions necessary for obtaining and maintaining a Nation’s consent, as opposed to legal devices such as releases that are intended to limit Indigenous rights;
• using collaborative dispute resolution mechanisms and not limiting a Nation’s ability to take legal action; and
• building a process for future decision-making and obtaining consent before any approvals are sought from the Crown.
RBC’s Human Rights Position Statement invokes the United Nations Guiding Principles on Business and Human Rights (UNGPs) and states that RBC will take action to mitigate adverse human rights impacts, including by leveraging its business relationships. RBC has also disclosed ways in which it honours Call to Action #92. Shareholders believe further action is required to operationalize FPIC and Call to Action #92 into RBC’s corporate policies and activities. An explicit reference to operationalizing FPIC will help mitigate human rights risk while giving RBC additional leverage to effect meaningful and necessary change on the path towards reconciliation