Free, Prior, and Informed Consent (FPIC) in the Yukon: Established Practice or Untravelled Path?

Abstract

The Northern Review 47 (2018): 113–134

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has catalyzed Indigenous rights conversations in Canada around free, prior, and informed consent (FPIC). Discussions and debates on FPIC are ubiquitous in scholarly, legal, and political communities, at international and Canadian scales, as all players continue to grapple with understandings of the right to FPIC. The Yukon territory, where mineral extraction has a long history and a majority of First Nations have self-government and settled land claims, offers an ideal case for assessing how FPIC is being defined and exercised in light of possible mine developments. Surprisingly, semi-structured interviews with key informants representing Yukon governance institutions, and a document review, both completed in 2017, reveal limited explicit engagement with the FPIC concept. This paper serves to identify and make sense of this situation in an exploratory way. Three factors are offered to explain what appears to be a lack of engagement by these key Yukon institutions: 1) that modern treaties and associated established governance systems are well respected; 2) that key institutions are awaiting federal action; and 3) that explicit engagement with FPIC will eventually surface in the territory, but has been delayed by established governance systems and treaty implementation priorities. This dynamically evolving and yet ambiguous situation creates an opportunity for better dialogue with specific Indigenous communities and governments regarding their unique expectations and understandings of their right to exercise FPIC.