Free, prior, and informed consent in mining: no consent, no mine

Before a single shovel breaks ground, Indigenous Peoples and affected communities have the right to say no. That right has a name: free, prior, and informed consent. The term may sound like dense legal jargon, but it is quickly becoming one of the most important phrases in Canadian law.

In this article, we will discuss free, prior, and informed consent means both for communities and mining companies, and where legal professionals fit in. For anything else not discussed here, you can also reach out to a Lexpert-ranked mining lawyer.

What does free, prior, and informed consent in mining mean?

Free, prior, and informed consent (or FPIC) is the right of Indigenous Peoples and First Nations communities to say yes or no to development projects that affect their lands, territories, and resources. In mining, that means a company cannot simply show up, stake a claim, and start digging.

Affected communities have the right:

• to be consulted first
• to receive full information about what the project involves
• to give or withhold their consent before anything moves forward

FPIC can be understood through the three terms in its name:

• Free: This means that consent must be given voluntarily and without coercion, intimidation, or manipulation from outside forces. Consultation processes must be genuinely open-ended, and the outcome cannot be pre-determined by the proponent or the Crown
• Prior: Engagement must first occur before any decisions are made. Consultations must not be an afterthought once a project has already been designed. Several federal and international laws require both the government and the project proponent to consult affected communities before approving any project, whether it is a mine or an energy project
• Informed: This term means that communities must receive complete, accurate, and accessible information about a project (e.g., its benefits, its risks, and its alternatives) in a form and timeframe that enables them to make meaningful decisions. This is not a perfunctory disclosure obligation for proponents of development projects; rather, it requires ongoing information-sharing throughout the project’s lifecycle

Together, these three elements describe a process that is qualitatively different from pro forma notice-and-comment consultation.

Check out this video about recent applications of free, prior, and informed consent in mining across Canada:

Learn more about free, prior, and informed consent in mining by consulting with the best mining lawyers in Canada as ranked by Lexpert.

What are the laws related to free, prior, and informed consent in mining?

Several international, federal, and provincial laws together establish the FPIC requirement in mining projects.

These laws include the Constitution Act, 1982 and the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act). Common law also shapes how the courts interpret the FPIC requirement as it applies to the mining and energy industries.

Constitution Act, 1982

The relationship between FPIC and Canada’s constitutional duty to consult and accommodate flows from the honour of the Crown and section 35 of the Constitution Act, 1982.

The constitutional duty to consult was established in a trio of Supreme Court of Canada decisions. One of them is Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, where the Court held that the Crown must consult with and, where appropriate, accommodate Indigenous groups before making decisions that could adversely affect these groups’ asserted but unproven rights and title.

The depth of consultation required is proportionate to the strength of the claim and the seriousness of the potential impact. It ranges from simple notice at the lower end of the spectrum to deep consultation approaching consent at the upper end.

The Court in Haida Nation was clear that consultation does not give Indigenous groups the right to veto. The duty is procedural: it requires good-faith engagement, but it does not require the Crown to achieve an agreement before acting on a project.

UNDRIP Act

The UN General Assembly adopted the UNDRIP on September 13, 2007. The Declaration contains six articles that reference FPIC, with Article 32(2) being most directly applicable to the extractive sector. Article 19 also requires states to consult with Indigenous Peoples to obtain their free, prior, and informed consent before adopting legislative or administrative measures that may affect them.

UNDRIP was incorporated into Canada’s federal law through the UNDRIP Act in 2021. Notable provisions from the UNDRIP Act include:

• Section 4: affirms that the UNDRIP applies in Canadian law
• Section 5: requires the government to take all measures necessary to ensure Canadian laws are consistent with the UNDRIP

Under the UNDRIP, FPIC is a substantive requirement, not just a procedural one. It aims at achieving consent rather than simply undertaking consultation. Several provinces, including British Columbia (BC), have passed their own UNDRIP-implementing legislation, such as BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA).

The duty to consult is another legal requirement closely tied to free, prior, and informed consent in mining. The following video explains it in more detail:

Head over to our Special Edition on Mining Law for more resources to help both mining companies and communities surrounding mining projects in the country.

Landmark and recent cases on free, prior, and informed consent in mining

Below are some landmark and recent court decisions on FPIC:

• Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73: This foundational case on the duty to consult held that a genuine, good-faith consultation is required before decisions affecting Indigenous rights are made, and that this obligation exists even where rights have not yet been proven
• Nevsun Resources Ltd. v. Araya, 2020 SCC 5: The Court confirmed that customary international law, including evolving international human rights norms, is automatically adopted as part of Canadian common law where it is not inconsistent with existing statutes or binding precedent. This means international norms relating to Indigenous rights can inform the interpretation of Canadian law, including the duty to consult.
• Gitxaała v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430: On appeal, the majority of the Court (in a 2-1 split decision) held that DRIPA incorporates UNDRIP into BC’s positive law with immediate legal effect, and that courts can adjudicate whether provincial laws are consistent with UNDRIP. Applying that analysis, the Court found BC’s mineral claim regime inconsistent with Article 32(2) of the UNDRIP because it allowed automatic registration of mineral claims without prior consultation with affected Indigenous Peoples

The implications of these cases are significant. For instance, the Gitxaała case is the first appellate-level ruling to find that UNDRIP has a direct, justiciable legal force in a Canadian province. Even before the Court of Appeal’s ruling, BC has already implemented the Mineral Claims Consultation Framework (MCCF) in March 2025, requiring consultation with First Nations before new mineral claims are registered.

How can lawyers help clients in the mining sector regarding free, prior, and informed consent?

Here are the ways that lawyers can help clients in the mining industry when it comes to the FPIC:

• knowing what law applies, and how it works: a lawyer can help clients understand which of these laws apply, how they interact, and what they specifically require to certain entities
• knowing how and when to consult: common law now requires consultation before mineral claims are even registered, a lawyer can help clients identify which communities need to be consulted, when consultation needs to happen, and what a genuine, good-faith process looks like
• advising communities about their FPIC rights: in addition to representing mining companies, lawyers can also help a community understand the full scope of their rights under Canada’s mining laws, assess whether a proposed consultation process meets the legal standard, and decide whether to negotiate, seek accommodation, or challenge a decision in court
• structuring agreements that protect all parties: beyond consultations, lawyers can help parties negotiate and draft the agreements that give the FPIC a real-world effect, as these agreements need to be carefully structured to capture what was actually agreed, to allocate risk fairly, and to hold up if they are ever challenged

Free, prior, and informed consent in mining: consent as opportunity, not obstacle

Free, prior, and informed consent in mining, or FPIC, is no longer a distant principle debated in international forums. As common law shows, it is now being argued in Canadian courtrooms, reshaping mineral tenure systems and changing what regulators must consider before approving a project. Whether for an Indigenous or First Nations community asserting its rights, a mining company planning its next project, or an investor assessing risk, FPIC is now central to the conversation.

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