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"Statement - Legal Commentary on the Concept of Free, Prior and Informed Consent"(Government of Canada)

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The following statement is from the Government of Canada website:


"Statement - Legal Commentary on the Concept of Free, Prior and Informed Consent.


July 20, 2005



Canada welcomes the opportunity to revisit the concept of free, prior and informed consent (FPIC). As you know, this issue was discussed in detail at the International Experts' Workshop on Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples, organized by the UN Permanent Forum on Indigenous Issues in New York in January 2005.

At that workshop, Canada made, inter alia, the following points:

  • The concept of free, prior and informed consent continues to evolve, and there are differing views of its nature and application;
  • We must always keep in mind the extra-ordinary diversity of indigenous interests, rights and circumstances which free, prior and informed consent attempts to address;
  • In Canada's view, a broad, flexible and inclusive policy framework, free from the confines of a rigid definition, would best serve the interests of the greatest number of parties, both indigenous and non-indigenous;
  • Canada believes that what is of fundamental importance here is the changing of behaviour, on the part of all interested parties, so that indigenous communities and peoples are more fully involved and consulted and, where appropriate, accommodated on development and other decisions that directly affect their interests and ways of life;
  • In Canada's experience, the meaningful involvement of indigenous peoples and the development of processes that support the fair and equitable balancing of interests have been far more important than focussing on consent per se. Indeed, it is more useful to conceptualize a “continuum” of approaches, of which consent is one important option.

Canada is tabling updated interventions made at the Permanent Forum workshop, for the information of the Working Group on Indigenous Populations and in support of your consideration of this important issue.

Thank you."




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Free and Prior Informed Consent and Individual Treaties


"Treaty Rights and Free, Prior, Informed Consent
48. The right to free, prior and informed consent is also a fundamental, underlying principle that is inherent to the relationships established by treaties between indigenous peoples and states and their predecessors.  It is a general principle of law and a basic tenet of international treaty law that contractual arrangements such as treaties are founded on the consent of parties and that future acts that fall within the scope of the treaty’s terms must also be consistent with this consent-based relationship.#  The consent of the parties is thus an ongoing and integral element of treaty relations between indigenous peoples and states and is central to the performance of treaty obligations and treaty interpretation.# " 




"United Nations Treaty Collection"




The term "protocol" is used for agreements less formal than those entitled "treaty" or "convention". The term could be used to cover the following kinds of instruments:

(a) A Protocol of Signature is an instrument subsidiary to a treaty, and drawn up by the same parties. Such a Protocol deals with ancillary matters such as the interpretation of particular clauses of the treaty, those formal clauses not inserted in the treaty, or the regulation of technical matters. Ratification of the treaty will normally ipso facto involve ratification of such a Protocol.

(b) An Optional Protocol to a Treaty is an instrument that establishes additional rights and obligations to a treaty. It is usually adopted on the same day, but is of independent character and subject to independent ratification. Such protocols enable certain parties of the treaty to establish among themselves a framework of obligations which reach further than the general treaty and to which not all parties of the general treaty consent, creating a "two-tier system". The Optional Protocol to the International Covenant on Civil and Political Rights of 1966 is a well-known example.

(c) A Protocol based on a Framework Treaty is an instrument with specific substantive obligations that implements the general objectives of a previous framework or umbrella convention. Such protocols ensure a more simplified and accelerated treaty-making process and have been used particularly in the field of international environmental law. An example is the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer adopted on the basis of Arts.2 and 8 of the 1985 Vienna Convention for the Protection of the Ozone Layer.

(d) A Protocol to amend is an instrument that contains provisions that amend one or various former treaties, such as the Protocol of 1946 amending the Agreements, Conventions and Protocols on Narcotic Drugs.

(e) A Protocol as a supplementary treaty is an instrument which contains supplementary provisions to a previous treaty, e.g. the 1967 Protocol relating to the Status of Refugees to the 1951 Convention relating to the Status of Refugees.

(f) A Proces-Verbal is an instrument that contains a record of certain understandings arrived at by the contracting parties."




Definition of key terms used in the UN Treaty Collection

Exchange of Notes
Memoranda of Understanding
Modus Vivendi
Signatories and Parties




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