Leclair J. (avec Martin Papillon et Dominique Leydet) (2020). Free, Prior and Informed Consent: Between Legal Ambiguity and Political Agency, Vol. 27, International Journal on Minority and Group Rights 223-232.

Résumé

Cet article est l’introduction d’un numéro spécial dirigé par les trois auteurs et portant sur les enjeux soulevés par le droit reconnu par le droit international aux peuples autochtones de consentir aux atteintes portées à leurs territoires traditionnels.

The lack of conceptual clarity surrounding the notion of Indigenous consent is rightly considered an obstacle to its institutionalisation. As the articles featured in this special issue demonstrate, FPIC’s uncertain legal meaning and scope allow for very different interpretations, themselves leading to a broad range of institutional responses. Between definitions of consent as a preferable but not necessarily mandatory outcome of consultation procedures and more substantive/robust conceptions of FPIC as a right to say ‘yes’ or ‘no’ to a given project, the gap is significant and the implications very real. Yet, this ambiguity also creates opportunities. Several contributions to this special issue of the International Journal of Minority and Group Rights underscore the agency of Indigenous peoples, not only in challenging restrictive approaches to their participatory rights, but also in giving FPIC a more situated meaning, grounding the principle into their legal traditions and worldviews. FPIC is therefore best approached less as a legal notion endowed with immanent meaning than as a contested principle that will be given persuasive force (including in the legal field) through its mobilisation as a political resource, most notably by the different actors involved in the governance of natural resources. Such mobilisations, of course, do not operate in a political or institutional vacuum. The capacity of Indigenous and non-Indigenous actors to mobilise FPIC for transformative purposes is bound to be influenced (in both positive and negative ways) by the legal and institutional environment they operate in.