l The spirit of FPIC: lessons from Canada and the Philippines 71
Canada (AANDC – a federal government
agency), who retains the ultimate authority
on land and resource use.
There are cases where this process has
led to the prevention of a mining project,
for example, a proposed uranium mine at
Screech Lake. To date, there has not been a
case where the minister has overturned a
decision by the boards.
By no means are these institutions
perfect. Critics point to the continuance of
Euro-Canadian, bureaucratic decisionmaking structures, heavily reliant on
written rules, complex documentation (all
in English) and hierarchal structures. These
conflict with the informal processes, oral
communication and egalitarian structures
that are more common in aboriginal
communities. As one First Nations participant commented (Fitzpatrick et al., 2008):
The opportunity is provided to participate
… but that participation is conditional on
people being able to act like western bureaucrats, and that is the real problem.
However, what these institutions seem
able to embrace is a flexibility that allows
them to evolve and better reflect indigenous
perspectives – and thereby challenge these
Euro-Canadian structures. For example, in
a review of consultations under the Snap
Lake Diamond project, unplanned technical sessions were organised to orally discuss
specific issues coming out of the consultations (with each issue given two days and
overseen by an independent moderator).
These were found to be the best way to
achieve consultation leading to a joint decision with face-to-face dialogues and open
discussions between the mine proponent’s
experts and the aboriginal government
representatives, civil society and federal
government (Fitzpatrick et al., 2008):
…when you get to the technical sessions
where you have the proper people there to
discuss issues you get resolution so much
quicker, and you can see where people stand
on the issues, and as a whole, you can get all
the parties involved, and I see that as being
much more effective (Interview 6).
These sessions were not part of the legislation but simply adopted by the MVRMA
Board, reflecting the values of that representative board and the flexibility of the
institutions to achieve effective participation.
Analysis and recommendations
Canada is not a case of FPIC but provides
important lessons as to how it might be
possible to achieve the ‘spirit of FPIC’.
Implementing FPIC requires flexibility of
institutions rather than legislative definition. To implement the ‘spirit of FPIC’
institutions need to be flexible to incorporate bottom-up design, dynamic cultural
processes and political pressures.
Both the NCIP in the Philippines and
the MVRMA in Canada are examples of
top-down institutional design that prioritise efficiency and risk disempowering local
communities. The Philippines case shows
clearly that a legal right to FPIC is not sufficient and can in fact have negative impacts
where the government feels the need to
engineer consent in order to comply with
the law.
On the other hand, the creation of new
bodies for participation in Canada has in
itself been a process of empowering civil
society and local indigenous groups in decisions affecting their land. The structures
themselves, such as the MVRMA, represent
a change in power relations in which indigenous groups, and their knowledge and
values, are equally represented.
Flexibility is integral to allowing the
dynamic processes of FPIC to empower
local communities through ‘social learning’
– whereby people reflect the behaviours of
the social context they operate in. There
remain difficulties with the Canadian
system in cases where decision-making
practices continue to be based on western
framings that focus on efficiency and ration-