Fortier: Consent More Than a Simple "Yes or No"

Partner Michael Fortier has spoken with Law Times about free, prior and informed consent and allowing First Nations to play an important part when projects are happening on their land.

The article discusses the successful agreement that was reached between the Ontario Power Generation and the Saugeen Ojibway Nation; the agreement was required for a proposed nuclear waste site on the Bruce Peninsula to proceed.

The agreement is notable as it “reversed the years-long trend to exclude the Indigenous community in the development of projects and the benefits they reap.”

When speaking with Law Times, Michael said the Canadian government has indicated The United Nations Declaration of the Rights of Indigenous People’s (UNDRIP) concept of free, prior and informed consent could be the new benchmark.

Michael said free, prior and informed consent was “an approach that allows First Nations to play a meaningful role in projects that are being developed within their territories.”

“One of the issues with consent is it sounds like it is an obvious concept,” he told Law Times.

“The idea of consent as a one-time ‘I give consent to something’ is often not what is truly desired. And I think it is also not advantageous.

“Ideally, what you create is a long-term relationship where the various parties are respectful, understand the interests of the others, try to accommodate them and then create something that’s better for everybody.

“That’s a more involved and perhaps deeper form of consent.”

A team of Torys lawyers have written a five-part series on free, prior and informed consent. 

You can learn more about Torys’ Indigenous work by heading to the practice page.