Indigenous and Aboriginal Rights: An Analysis of Challenges to Free, Prior and Informed Consent amidst the Legal Politics of Canada

Abstract

For decades, the Supreme Court of Canada has redefined Aboriginal law. However, claims that these reforms have only been for the benefit of Indigenous communities ignore the tendency of Canadian courts to reject fundamental categories of legal responsibility regarding Indigenous peoples. In order to clarify the promise and constraints of the newly forming regime of Indigenous participation rights, this research paper encourages intellectual and empirical cross-fertilization. The paper emphasises on moral questions and challenges that extend far the bounds of legislation of Canada while drawing their ideas from the Canadian context. Contributions that exist comparatively reinforce the many parallels that exist across the Americas in discussions on free, prior and informed consent and the difficulties that Indigenous peoples have in implementing the policy into practice. When it comes to Indigenous rights law, Canada is developing more quickly than most other nations. In accordance with the obligation to consult framework, consultation is necessary before making important decisions that might have an impact on still-controversial Aboriginal and treaty rights. A made-in-Canada strategy for Free prior and informed consent adoption in Canada requires further work. But there is cause for optimism given the nation’s recent track record. The paper subsequently refutes claims about Free, prior and informed consent that have emerged in various industries, and it raises additional issues that highlight some of the difficulties in putting it into practise. The objective is to provide the foundation for a new strategy to Free, prior and informed consent that benefits Indigenous people, governments, and business.