The United Nations Declaration on the Rights of Indigenous 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. The federal UNDRIP Act affirms that UNDRIP has legal effect in Canada.1
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.”2
Foley Hoag LLP’s report to banks which funded the controversial Dakota Access Pipeline Project recommended that international industry good practices on FPIC means going beyond the minimum standards set by domestic law.3
Failing to consider FPIC also overlooks a material risk. Companies which only seek domestic legal minimums or 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.4
A 2019 paper prepared for the Union of BC Indian Chiefs entitled Consent5 (Consent Paper) attempts to clear up misconceptions about FPIC, including:
“consent” and “veto” are not the same; they have different meaning and uses; andFPIC is not an extension of consultation and accommodation, which are procedural in nature.The Consent Paper outlines ways in which Canadian businesses can operationalize FPIC, including:
seeking and confirming Indigenous consent prior to making decisions;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; andbuilding a process for future decision-making and obtaining consent before any approvals are sought from the Crown.TD outlines a mechanism for evaluating FPIC within its Environmental and Social Credit Risk assessments. A good first step, but the process is not transparent and relies on the Equator Principles which are not aligned with the Consent Paper. The material risks related to the failure to obtain FPIC are not captured in current policies and have not been reflected in financing decisions.
Further action is required to operationalize FPIC and Call to Action #92 into TD’s corporate policies and activities. An explicit reference to operationalizing FPIC will help mitigate human rights risk while giving TD additional leverage to effect meaningful and necessary change on the path towards reconciliation.
 
1 https://daccess-ods.un.org/access.nsf/Get?OpenAgent&DS=A/RES/61/295&Lang=E
2 https://www.rcaanc-cirnac.gc.ca/eng/1524506030545/1557513309443
3 https://www.foleyhoag.com/news-and-insights/publications/ebooks-and-white- papers/2017/may/good_practices_social_impacts_oil_pipelines_united_states/
4 https://www.justice.gc.ca/eng/declaration/bgnrcan-bgrncan.html
5 https://www.ubcic.bc.ca/consent_paper