Picking up on FPIC
You might have heard this term “FPIC” or “Free, Prior, and Informed Consent,” tossed around, but what does it really mean?
FPIC comes from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It requires members of a First Nation to be involved at each stage when considering projects and associated impacts. The TCG must include their members in all stages of considering the new mine at Eskay.
In addition, First Nations under Canadian law owe a fiduciary duty to their members when considering a decision that may affect member rights and interests. What does fiduciary mean? It means the Tahltan Nation has a legal duty to act in our best interests with good faith, care, and loyalty.
[Scroll to the bottom if you want to see the kinds of questions that TCG should be asked related to implementing and protecting members rights under FPIC.]
Before a project even starts, members must consent
Free, prior, and informed consent must be obtained from the Tahltan Nation prior to any approval of a project that may adversely affect the way of life of its members. Here’s what that sounds like in UNDRIP:
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization, or exploitation of mineral, water, or other resources.
FPIC entitles the Tahltan Nation to effectively determine the outcome of decision-making for a project that affects our way of life within our traditional territory. The TCG has determined that 50% plus 1 of their members may determine the outcome of decision-making in their referendum procedures.
Through any government approval process like the Environmental Assessment, B.C. and Skeena Resources (the company that wants to build a new mine at Eskay) need to obtain the free, prior, and informed consent of the Tahltan Nation prior to the approval of any environmental certificate or permits for a new mine that may adversely affect the rights of Tahltan people.
What do Tahltan members need to know
FPIC requires the Tahltan Nation to:
provide for transparent processes to obtain the free, prior, and informed consent of membership; and
act in the best interests of membership:
disclose all information; and
provide for effective processes to engage membership.
Give me an F: What does the Free part mean in FPIC?
Free refers to how the Tahltan Nation engages its membership in considering a project, including:
free to engage membership;
free to follow membership engagement processes;
free to consider strategy, options, and positions;
free for members to approve any financial administration law or policy, including for honoraria and travel claims for leadership;
free to establish processes, timelines, and decision-making processes;
free to explain the project in the Indigenous language or with translation services; and
free for members to participate in the assessment and decision-making process.
The free element is not met if there is evidence of:
spreading of false or misleading information;
subjecting members to lateral violence;
holding leadership meetings in camera to prevent the sharing of information with members;
inducement, manipulation, intimidation, coercion, bribery, or corruption of leaders or members;
convening of meetings in ways and at times that will exclude members;
gifts of benefits to leaders from proponents; or
gerrymandering of referendum procedures.
Give me a P: What about the Prior in FPIC?
Prior requires that consent be sought from membership in advance of any major decision, prior to the execution of any Impact Benefit Agreement (IBA). Membership must also be given adequate time to make an informed decision. TCG is providing less than 3 weeks notice for members to vote on the IBA.
Prior refers to how the Tahltan Nation must engage their membership prior to providing their consent to a project, including:
sufficient time to understand, access, and analyze all of the information on the proposed project including the IBA terms and conditions;
information must be provided prior to project activities being initiated or approved; and
decision-making timeline must be respected, as it reflects the time needed to understand, analyze, and evaluate the project.
Give me an I: What does Informed mean in FPIC?
Informed requires that the Tahltan Nation provide membership with the information necessary for membership to make an informed decision about the new mine at Eskay and the IBA. The information needs to be independent and objective without accepting everything that Skeena has asserted.
The best practices for informing members includes:
a. Sharing of information to the membership regarding all aspects of the proposed project;
b. The disclosure and distribution of any proposed IBA to membership;
c. Sharing of information to membership regarding the proposed financial administration of revenue from the project to be paid to the Indigenous Nation, including elements from the Financial Administration Law:
i. financial plans and annual budgets for review by membership;
ii. risk management for business activity for disclosure to membership;
iii. conditions for investments for input by membership;
iv. risk of fraud - identification and assessment of the risk of fraud for disclosure to membership;
v. financial reporting to membership e.g., monthly financial information; quarterly financial statements; review of annual audited financial statements; annual report.
vi. whether there are plans for leaders to receive honourariums and travel expenses;
d. An opportunity for membership to ask questions and share any concerns in writing and at a meeting; and
e. A further opportunity for membership to consider how their questions were responded to by leadership.
The best practices demand that information should be:
accessible, accurate, and transparent;
delivered in the Indigenous language and in a culturally appropriate format;
complete, including a preliminary assessment of the possible cultural, economic, social, and environmental impacts, including potential risks and benefits;
delivered with sufficient time to be understood and verified; and
provided on an ongoing basis throughout the FPIC process, with a view to enhancing communication and decision-making processes.
Give me a C: What does the C mean in FPIC?
Consent requires that the Tahltan Nation involve its members in any decisions through a process that enables membership to provide their consent. The TCG has not sought any input on the referendum process from their members. The will of membership must be evident before any consent is provided.
The Tahltan Nation has the choice to give or withhold consent to a project that may affect their way of life or their territory.
The consent standard has the following attributes:
a freely given decision that may be a “Yes”, a “No”, or a “Yes with conditions”;
a collective decision in accordance with customs and traditions;
provided in phases for distinct stages or phases of the project.
The elements of “consent” include:
member engagement to uphold the fiduciary duty of leadership to beneficiary members;
information dissemination to members, including how the members will benefit from the funds paid pursuant to the IBA;
disclosure of draft IBA to members;
approval process for membership that reflect the will of the people;
approval of the financial administration policy or law for the management of the IBA payments; and
approval of an accommodation agreement with the Crown, and
approval of an IBA with the proponent company.
As IBAs are an accommodation of Indigenous Rights, the best means to achieve the FPIC standard for membership consent is through a ratification vote that is open to all members eligible to vote and is fair and transparent. We know that there have been complaints about the 2022 and 2025 remote voting system which have remained unanswered.
We also know that the Province of British Columbia and the Government of Canada have failed to provide any accommodation measures for the new mine at Eskay beyond a percentage of mineral royalties from BC. TCG cannot implement FPIC without support from both governments to independently and objectively assess mining in our territory.
What does it spell?: Nothing about us, without us
Any structuring for managing revenue from an IBA must consider the collective nature of Indigenous rights. At this point, we don’t know where the money is going as the TCG has not consulted members about how it will be distributed.
Did the TCG use best practices to obtain FPIC for an IBA?
1. Providing accurate information on the nature of the proposed project;
2. Making proponent leadership available to answer member questions;
3. Participation in any assessment and study process;
4. Making traditional knowledge and scientific data available for review;
5. Explaining any environmental risks and mitigation efforts being proposed to address environmental and cultural concerns;
6. Seeking the perspective of members in relation to the proposed project and the implementation of any member benefits;
7. Disclosing how the collective Indigenous title and/or rights of the membership will be impacted and how members will be accommodated, including opportunities for training, employment, education, and contracting; and
8. Providing the community with an opportunity to participate in how the funds received through an IBA will be prioritized and spent for the benefit of members.
Here are some questions Tahltans can ask of the TCG:
Has TCG delivered its fiduciary duty of FPIC to its membership?
Was there a custom TCG FPIC plan in place prior to consultation?
Has TCG ensured ALL members will benefit from this agreement?
Has TCG made ‘free’ to engage ALL membership? Were participants muted? Were environmental assessment questions freely asked? Was the agreement freely available to all Tahltans?
Have TCG executives, board members, and/or employees been offered or accepted ‘gifts’ as incentives from the proponent (ie. Skeena)?
Has TCG withheld any sharing of information pertinent to consent or non-consent?
Has TCG provided a plan for the benefits of the agreement? How will members benefit?
Has TCG engaged neighbouring Nations with their potential impacts?
Has TCG corresponded with members’ inquiries?
Are there financial plans and budgets in place for members to review?
What are the prerequisites for Tahltan businesses and contractors to access these benefits?
Are there fraud prevention indicators in place?
Will TCG provide consistent financial reporting to the members?
Will TCG provide criteria for distributing travel allowances, honorarium, and salaries?
Will salaries be contingent upon the quality/quantity of work provided? Will compensation be in line with industry standards? Will employees be required to report on their duties monthly?
Will TCG engage membership and seek consensus when negotiating major investment deals and/or purchases?
Has TCG developed an Economic Development Entity? Who is involved?
Has this potential agreement altered the current corporate structure? If so, how so? Has/will membership be involved with creating this new structure?
Will a portion of, or portions of, the monetary value be secured within the Tahltan Heritage Trust?
Are there any board members in conflict with negotiating, communicating, delivering, and/or benefiting in this agreement?
Are there any contractors and/or relationship agreements in conflict with negotiating, communicating, delivering, and/or benefiting in this agreement?
Has a conflict-of-interest protocol been created? Have all board members, employees, contractors, and relationship agreements been screened?
Has TCG ensured ALL members are being represented by their respective family representatives?
Has TCG equipped the family representatives with the information they need to fulfill their fiduciary duty under FPIC?
Have all TCG partners and associated entities been informed of the potential signing of this agreement? Have the effects of the agreement been communicated to them? Has feedback been received?
Will TCG provide membership statements of benefits distributions on a regular basis?
Will leadership payments from the benefits agreement be approved by the membership?