Introduction
The 51łÔąĎÍřSGI Transformative Business Law Summer Academy (TBLSA) is a week-long intensive policy writing course devoted to the study of pressing topics on sustainable finance, ESG, and climate change, among others. The 2025 TBLSA took place from 4-10 May at the 51łÔąĎÍřFaculty of Law. Its theme was “Contested Sustainabilities”, with students split between six sub-topics of “Legislating Sustainability”; “Litigating Sustainability”; “Algorithmic Sustainability”; “Financial Sustainability”; “Indigenous Knowledge, Human Rights and Sustainability”, of which I was a part; and “ESG, DEI, Sustainability, and then what?”. Each sub-group was assigned faculty mentors from all around the world, and contributed a chapter and policy recommendations to the final “”. By the time the Impact Paper was published on the last day of the Academy, I certainly felt transformed—not only by the rigorous schedule, but by the painstaking level of detail, reflection, and deep thought everyone in my sub-group had given to our section of the Impact Paper.
In my sub-group, my partner Gabrielle and I were tasked with researching Indigenous consent and contested decision-making. This collaboration permitted me to not only expand on my pre-existing interest in land sovereignty issues, but also to learn more about public international law and the developing field surrounding free, prior, and informed consent (FPIC) in Canada.
Our research into consent also tied in another interest of mine. I had previously competed in the 2024 Canadian National Negotiation Competition, held at McGill’s Faculty of Law in March 2024. In preparation for and during the different stages at the CNNC, I learned immensely valuable oral advocacy and dispute resolution skills. Participants were taught by their coaches, including academics and practicing attorneys, how to leverage positions of relative advantage or disadvantage to obtain better results for our clients. We were reminded never to negotiate in bad faith or to outright lie, rules that, in our artificial scenarios, were meant to promote equality and trust between parties. Negotiations between Indigenous and settler parties, however, address a far more delicate power dynamic than that between employer and employee, or small company and larger company. Simply coming to the table in good faith does not prevent the settler party from exercising all the tools at their disposal. Even if procedurally, Indigenous peoples’ free, prior, informed, and revocable consent is sought, the power imbalance between negotiating powers allows for the exploitation of more urgent concerns, such as health, education, and employment. It also did not escape us that many of those concerns themselves arose due to colonial oppression, and might now be leveraged to obtain consent that, if not wholly coerced, is not truly free.
Development of research and thought process
To reiterate, our research task was to determine the available legal frameworks for the consent of Indigenous peoples within and without Canada, how they have facilitated and impeded consent, and how they contribute to sustainability. We drew on the other sub-groups’ points on the importance of Indigenous stewardship and knowledge, and the imminent “boom” of natural resource development in Canada, to sketch out the wider context in which our topic attains its particular weight and significance today. The UN General Assembly resolutions and , adopted 7 October 1960 and 14 December 1962, respectively, affirmed that sovereignty over natural resources is a part of self-determination. As our work at the Academy underscored, the notion of self-determination is placed under particular strain when considering some populations’ starkly inegalitarian exposure to climate change. Indigenous peoples worldwide are by extractive development and climate change. over industrial development projects. Given their relative vulnerability and the significance of their stewardship knowledge, it is crucial in our present moment that Indigenous peoples have the ability to decide what happens to their lands and resources.
My research centred on the endorsement of (UNDRIP) in Canada, Canada’s own duty to consult, and how that duty has been altered by the domestication of UNDRIP. Following initial opposition, Canada endorsed UNDRIP without qualification in 2016, “”. In 2021, Parliament adopted the (UNDRIP Act), which affirmed that UNDRIP was applicable in Canadian law and set out a framework for its implementation. These legislative actions have impacted the scope of Canada’s pre-existing obligations surrounding consultations with Indigenous peoples.
Beyond the legal analysis, I also felt it was important to explore Indigenous conceptions of consent. What would constitute meaningful consent for Indigenous communities, and how might that be centred via policy? For example, the Yellowhead Institute, an Indigenous-led research centre at Toronto Metropolitan University, in 2019 that consent ought to be restorative, epistemic, reciprocal, and legitimate. It should centre Indigenous models of governance and law; accept Indigenous languages and knowledges; ensure Indigenous communities determine the terms of consent and are able to revoke it; and obtain consent from all legitimate authorities in the community, not solely band councils who may conflict with other hereditary forms of governance.
It is important to recognize that UNDRIP’s characterization of FPIC does not include the qualifier of revocability, a concept that is explicitly highlighted in the above principles. The need for “stability” in business investment may motivate against revocability. Equally important, however, is to acknowledge that obtaining consent does not mean being “granted a pass” indefinitely, but instead that the committed search for consent through the employment of the FPIC process marks the beginning of an ongoing collaborative engagement that holds both sides accountable. Also crucial to note is that these principles are guidelines, not a pan-Indigenous framework. Indigenous communities may have their own different or additional principles on consent that should take precedence. This aspect is reflective also of the geographical diversity and fragmentation of Indigenous life across Canada. In an effort to invite continued critical engagement with the notion of pan-Indigeneity, our group also wanted to give special mention to the residing in urban settings, whose rights to FPIC—whether in their urban places of residence, or in their communities of origin—are often overlooked.
To fulfill these principles, more action is needed on implementing FPIC in Canada. Thus far, the Canadian government’s execution of UNDRIP has been lackluster. While its (Action Plan) professed to further the implementation of UNDRIP in Canada, in reality, it is more of a plan to make a plan, committing only to “develop” and “pursue” rather than carry out.
On the judicial front, the 2004 decision handed down in [MOU1] is particularly noteworthy. In light of Haida, Canada’s duty to consult arises from the “honour of the Crown” to Indigenous peoples, notably a framework which remains focused on Crown sovereignty and paternalistic largesse. Its very nature does not contemplate Indigenous communities and the Crown as equal negotiators. While the UNDRIP Act expanded the duty to consult, recent jurisprudence has inconsistently interpreted UNDRIP’s applicability across levels of government, as can be seen in the contrasting opinions of and . In Gitxaala, decided in 2023, the British Columbia Supreme Court mandated that B.C. establish a consultation program with Indigenous peoples in its mineral claims registration system, while simultaneously holding that B.C.’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), the first provincial legislation to enshrine UNDRIP, does not actually implement UNDRIP into B.C.’s domestic law. On the federal level, the Federal Court in 2024 affirmed in its Kebaowek decision that UNDRIP was part of Canadian law and should be used to interpret Canadian law, including interpreting the duty to consult in light of FPIC.
Development of recommendations
Our research during the 2025 Academy underscored the importance of pursuing the equalization of negotiating power for Indigenous communities, and improving the implementation of UNDRIP in Canada. While identifying these goals and performing the relevant research might have seemed straightforward at the start, elaborating meaningful and potentially impactful recommendations was another story. Reminding us of the intricacies of policy writing, we struggled to formulate recommendations in a way that would be sufficiently concrete and practical while also being crafted towards the generation of real change.
At the outset, one avenue under consideration was the separation of the duty to consult and UNDRIP as discrete concepts in Canadian law. This was based on the recognition that if UNDRIP was limited, as it has been thus far in jurisprudence, to an expansion on the duty to consult, then negotiations with Indigenous communities would persist under an umbrella of assumed Crown sovereignty. While perhaps a necessary distinction to make in principle, it remained an open question what the practical effects of such a declaration would be, or how exactly it might come about.
My research then turned to Canada’s domestication of UNDRIP, and contemplated amending the Preamble to the UNDRIP Act to be more consistent with the language used in Article 4 of UNDRIP. , and would involve adding the omitted phrase “ways and means for financing their [Indigenous peoples’] autonomous functions” to the section of the Preamble that draws from Article 4. Ultimately, this approach didn’t seem promising to achieve real, enforceable change. Moreover, “ways and means” does not explicitly include or exclude existing pathways of funding, such as those furnished via treaties. It would be possible for the government to claim it is already providing funding—often itself insufficient or greatly delayed—and thus avoid this obligation.
As a bright light in the evolution of transnational global value chain accountability jurisprudence, the Canadian Supreme Court’s 2020 decision in attracted our attention. Of particular relevance to our topic was its ruling that violation of customary international law norms can ground a cause of action against private parties in Canada. Some rights laid out in UNDRIP have been recognized as customary international law norms, and as such could ground claims in theory, but they are more nebulous and less cut-and-dry than those discussed in Nevsun.
Ultimately, we zeroed in on an effort to ameliorate Article 32 of the Action Plan, including using Article 20 of UNDRIP to inform a call for a new, independent source of funding during negotiations and consultations. The final recommendation, one of six total put forward by my sub-group in the 2025 Academy Impact Paper, reads as follows:
“We call on the Canadian government to, in light of its commitment in Article 32 of the 2023–2028 United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, develop an enforceable mechanism to engage with Indigenous communities on natural resource projects that enforces UNDRIP’s provision on free, prior, and informed consent. We also call on the Canadian government to mandate that funding be provided, in the spirit of Article 20 of UNDRIP, to Indigenous communities during consultations on natural resource projects. This commitment should be carried out by the end of the Action Plan in 2028, and the funding provided should be independent of any furnished under existing treaties and agreements.”
Though not referenced in the recommendation, it is important to draw attention to the issue of Aboriginal Title. Despite still being a mechanism of asserting legitimacy under colonial law, Aboriginal Title can offer a pathway toward self-determination that will allow Indigenous communities more negotiating power. For example, the cites mediation, arbitration, the Haida tribunal, and other procedures under Haida law as mechanisms of dispute resolution should disagreement arise during implementation. This relieves the Haida Nation of the burden of resolving disputes in colonial courts and places them as an equal party in further reconciliation negotiations.
My experience at the 2025 Academy further illuminated the complexity and multi-disciplinarity of climate change law, and the array of different angles from which the same problem can be approached. I truly appreciated the opportunity to explore my interests, hone my policy writing skills, and discuss ideas with incredible colleagues and faculty from around the world.