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.[1]The federal UNDRIP Act affirms 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.”[3]
Foley Hoag LLP’s report to banks which funded the controversial Dakota Access Pipeline recommends 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 or fail to obtain FPIC routinely see project delays, conflict, and other significant legal, political, reputational and operational risks.
A 2019 paper prepared for the Union of BC Indian Chiefs (UBCIC) entitled Consent[5] (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 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.BMO’s Statement on Human Rights invokes the United Nations Guiding Principles on Business and Human Rights (UNGPs). BMO also offers transparency around Indigenous business investment. However, BMO has faced scrutiny around treatment of Indigenous clients, and several projects it funds face criticism of violating Indigenous rights, including Coastal Gas Link in Wet’suwet’en territory and the Line 3 expansion into Northern Minnesota Anishinaabeg lands. Such conflicts have captured international headlines.
Shareholders believe further action is required to operationalize FPIC and Call to Action #92 into BMO’s corporate policies and activities. An explicit reference to operationalizing FPIC will help mitigate human rights risk while giving BMO additional leverage to effect meaningful and necessary change on the path towards reconciliation.
[2] https://www.canlii.org/en/ca/laws/stat/sc-2021-c-14/latest/sc-2021-c-14.html
[3] https://www.rcaanc-cirnac.gc.ca/eng/1524506030545/1557513309443
[4] https://www.foleyhoag.com/news-and-insights/publications/ebooks-and-white-papers/2017/may/good_practices_social_impacts_oil_pipelines_united_states/
[5] https://www.ubcic.bc.ca/consent_paper