to underpin the KI opposition to Ontario approach to mining in their territory. The Far North Act,
providing for community land use planning, was also enacted following the legal action of the KI.
However, the KI regard this Act as a means through which Ontario is attempting to assert jurisdiction
over their territories. Their demands for recognition of the requirement for FPIC are framed with the
broader question of claims to jurisdiction and sovereignty over their territories.
The KI position is that they refuse any engagement with companies until the underlying issues of
jurisdiction and Treaty 9 rights are addressed in nation to nation negotiations.130 They continue to
affirm that their inherent jurisdiction implies that their consent is required for any development of lands,
water and resources within their territory.131 They also passed a declaration through a community
referendum nationalizing the resources in their territories. In keeping with their moratorium all mining
operations have withdrawn from their territories.
General observations arising from the overall KI Experience
The Kitchenuhmaykoosib Inninuwug are perhaps the clearest example of a First Nation which has
been successful in using its consultation and FPIC protocol as a means to: a) resist unwanted projects
and inadequate consultation processes; b) challenge the constraints imposed by the national legal
framework which requires consultation and accommodation but which to date, in most cases, has
not been interpreted as embodying a right to withhold consent; and c) ensure corporate commitment
to engagement and consent seeking based on community defined terms.
The KI have demonstrated that where indigenous communities resist non-consensual encroachments,
and are prepared to pay the potentially high personal and social costs that doing so may entail, they
have a de-facto consent power over State and corporate actions. However, the potential for this form
of assertion of rights and resistance in the context of violent State repression of indigenous peoples’
rights and corporate engagement of para-military groups is significantly reduced. In addition the KI
are extremely remote, accessible only by air, and have minimal state presence in their territories.
As a result, in a context such as Canada where the use of violent force against indigenous peoples
is increasingly unacceptable, the territory is effectively ungovernable and projects impossible to
impose absent community consent.132
An important issue which emerges from the KI case is how the requirement for FPIC addresses the
issue of consultation fatigue, whereby communities are expected to engage in multiple FPIC process
with a series of mining companies seeking to access and exploit resources in their territories? The
capacity of most indigenous communities to sustain multiple FPIC processes, especially if they
are attempting to withhold their consent, is severely limited. As a result if communities are not in a
position to enforce mining moratoria after they have withheld their consent, the requirement for FPIC
cannot be operationalized in a manner which is consistent with the realization of their rights.
The KI case also challenges the legitimacy of State imposition of consultation and land use rules
and procedures through legal frameworks and policies, without first engaging in good faith with
the First Nations to address the unresolved issue of inadequate State recognition of their territorial
jurisdiction. In the absence of this type of State engagement the KI have unilaterally declared full
ownership over the resources in their territories. By effectively nationalizing these resources they
have rejected the power of the provincial government to regulate or administer their usage.
The KI consultation and FPIC protocol was developed in the context of resistance to an imminent
threat. While clearly elaborating on the principles of engagement, it remains more ambiguous than
the Taku River Tlingit First Nation’s (TRTFN) mining policy with regard to certain aspects of how
a FPIC process might play out in the context of a full blown engagement with mining companies,
should the communities decide to proceed with a project. This may not be a limitation of the protocol
as it provides a greater degree of flexibility to the First Nation to address the different types of
engagements and negotiations which may arise when dealing with a spectrum of mining companies.
It also illustrates that protocols do not have to be drafted from Eurocentric legal perspectives, as
implied by the principle of legal plurality and the primacy of customary law within the territories of
indigenous peoples. The consultation protocol is in effect superseded by a moratorium which the KI
have imposed on all mining activities in their territories.
Making Free, Prior and Informed Consent a Reality
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