I. Introduction: Is there normative convergence around free, prior and informed consent?
Natural resources extraction is one of the main points of contact between Indigenous and non-Indigenous societies. Indigenous struggles to protect their communities’ ancestral territories and their people’s knowledge, political institutions and practices are increasingly being embodied in their opposition to extractive projects.Footnote 1 Arguably, the inherent tension between Indigenous self-determinations and state sovereignties is insoluble in contexts where dominant political economies depend on extractivism. For that reason, reconciling the two implies radical social transformations and wide-ranging institutional reforms that are only viable if they are backed by vibrant political communities.Footnote 2 This is already challenging when these political communities share a common legal architecture;Footnote 3 in many contemporary contexts, however, societies are presented with a tangle of norms whose articulation is increasingly ad hoc. As a corollary, in what often presents itself as a market of norms, different free, prior and informed consent (FPIC) instruments—regimes, standards, expert know-how, toolkits, mediation services and so on—are put forward as normative solutions to violence, conflict, instability, disruptions and/or human rights violations surrounding extractive projects.
In the business and human rights (BHR) literature, such instruments are often analysed discretely. One can compare, for example, the Organisation for Economic Co-operation and Development’s Guidelines for Multinational Enterprises on Responsible Business Conduct (OECD Guidelines) and the International Finance Corporation’s Performance Standards on Environmental and Social Sustainability (IFC Performance Standards) in terms of their distinct procedural rules and how they define FPIC.Footnote 4 A recent study also compares a ‘rigorous private standard’ with ‘public regulation’. In this study, researchers found that the two standards have some overlapping elements, yet they also have an ‘independent coexistence’.Footnote 5
Increasingly, however, FPIC instruments tend to refer to each other. For example, in addition to serving as a reference or being integrated into national laws, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is mentioned in a myriad of private instruments, including corporate social responsibility (CSR) codes and industry standards.Footnote 6 UNDRIP is also referred to, albeit timidly, in international investment law and investor-state arbitrations.Footnote 7
Such cross-referencing may give the impression that norms and standards are converging; with regard to FPIC, it could be interpreted as the hegemonisation of the UNDRIP definition.Footnote 8 This perception of convergence or, conversely, the identification and characterisation of divergences, is central for orienting collective organisation and effective political action. In our view, the thesis of norm convergence around FPIC reflects an excess of optimism, with the negative consequence that objectively essential political mobilisation might seem unnecessarily costly.
In this article, we argue that this optimism is at least partly based on a theoretical blind spot. Normative instruments are rarely applied on their own: their effects on the ground are most often the result of their interaction with other normative instruments.Footnote 9 Normative solutions also often promise goods (regulation, order, legitimacy, justice, reparation, etc.) through bricolages combining several instruments and implementation regimes to produce sui generis normative devices. In our view, the ‘political grammar’ of these arrangements can have a more decisive impact than the ‘referential content’ (in other words, the vocabulary) that they mobilise. By ‘political grammar’ we mean the way normative devices distribute authority, obligations, accountability and truth. In this, we agree with Webber’s point that legal determination and implementation mechanisms significantly determine normative content.Footnote 10
We aim to illustrate the heuristic potential of the distinction between political grammar and referential content by analysing a specific normative solution put forward by Canada’s export credit agency, Export and Development Canada (EDC), a Crown corporation. The dispositive analysed purports to provide FPIC compliance, notably in the context of extractive projects, and combines references to UNDRIP, the Equator Principles, IFC Performance Standard 7 on Indigenous Peoples (IFC PS7) and EDC’s own Environmental and Social Risk Management Policy (ESRMP). EDC, in fact, proposes a kind of do-it-yourself (DIY) FPIC kit, with the implied promise that a legitimate order can be established around extractive projects independently of the defects and shortcomings of the jurisdictions in which these projects take place. What is the underlying logic normative entrepreneurs convey when they promote their DIY FPIC kit, and what is the impact of that logic on the normative ecosystem?Footnote 11 We will show that EDC’s DIY FPIC toolkit draws legitimacy precisely from the narrative of deficient host jurisdiction. Before undertaking an analysis of how this has come about and certain of its implications, it is useful to take a theoretical detour. We will demonstrate that the political grammar of this normative device diverges sharply from the political grammar of self-determination included—at least virtually—in UNDRIP’s definition of FPIC. Since it transfers responsibility from public to private actors, this corporate by-passing of local (albeit imperfect) jurisdictions—Indigenous, national or otherwise—appears to be particularly risky.
We proceed in four steps. We start in Part II by outlining our theoretical framework, which highlights the role of what we call norm entrepreneurs in giving shape to the global governance of extraction. We then proceed in Part III to sketch out the implications of FPIC as articulated through the political grammar of self-determination and point to the open-endedness of UNDRIP in that regard. Part IV contrasts this with the political grammar of FPIC as put forward by EDC’s normative solution. We then conclude in Part V with certain implications and risks of the current short-sighted approach in dealing with deeply rooted structural problems that are the result of particular historical, institutional and political contexts.
II. Theoretical framework: Norm entrepreneurs and the production of order in normative ecosystems
It is a commonplace observation that globalisation has unsettled the relationship between norms and power by calling into question the hegemony that modernity had granted to states and law.Footnote 12 One could say that this observation is at the very origin of the BHR field in its current form.Footnote 13 In a paradigm dominated by the state, the image of the pyramid, for example, implied an imperative of coherence and hierarchisation of the normative domain.Footnote 14 In contemporary constitutionalism, this coherence is intrinsically linked to societies’ democratic aspirations; only by deliberatively defining its own legal order can a society self-determine. As for hierarchisation, its purpose is to place, at the top of the pyramid, the fundamental values against which societies measure the legitimacy of all other norms. Under that logic, law’s worth is determined by its conformity with society’s highest aspiration: this is what we call teleological legitimacy. In contemporary constitutionalism, human dignity can therefore be posited as a teleological imperative, an imperative that is expressed, in particular, in the corpus of human rights.Footnote 15
We focus on the global extractive sector—which we define here in the broadest sense as the intensive exploitation of natural resources, including mining and energy mineralsFootnote 16—because it is a good illustration of the extent to which the image of the pyramid no longer corresponds to the way in which power is constituted and exercised. Indeed, the sector’s contemporary governance is characterised by a tangle of different kinds of diversely binding normative regimes, including state, Indigenous and international legal regimes.Footnote 17 The governance of each extractive project is also made up of a web of contracts in several jurisdictions.Footnote 18 Other normative instruments, such as standards, certification schemes, algorithms,Footnote 19 self-regulation schemes and so-called best practices,Footnote 20 counterinsurgency doctrines,Footnote 21 and knowledge regimes organised around ‘global cities’ and academic institutionsFootnote 22 also play important roles. Other pertinent norms are best described as ‘moral economies’,Footnote 23 or meta-discourses deployed here and there: ‘the era of reconciliation’ in Canada,Footnote 24 ‘democratic transition’ or ‘post-conflict’ narratives in Latin America and elsewhere, notably AfricaFootnote 25 and the global ‘energy transition’ narrative.
One would be hard-pressed to find coherence in this tangle of norms, let alone an explicit teleological imperative subjected to deliberation by a given political community. The theoretical question this observation raises is one of internormativity. The notion of internormativity differs from the notion of legal pluralism, which refers to a scientific field structured around a definition of law that is not centred around the state and whose theoretical centre of gravity is a debate around the ontological and epistemological status of law. As the ontological status of these regimes is not our primary concern, we call internormativity the coexistence of a set of phenomena ranging from state law to morality and including more diffuse discursive regimes or technologies of power in the Foucauldian sense.Footnote 26
In what ways do these different norms interact? Is an ‘order’ produced? Is this order compatible with democracy and human dignity? At an empirical level, internormativity raises numerous questions: which agents are likely to promote which normative articulations? According to which identities, narratives, ontologies and/or objectives? Can societies effectively pursue democracy and dignity in the face of this tangle?
BHR issues are a relevant entry point for answering these questions because they are already structured, on the one hand, by the teleological imperative of human rights and, on the other, by the notion of a widening ‘governance gap’.Footnote 27
Following proponents of the notion of global law,Footnote 28 we thus propose to examine the configuration of normative interactions without prejudging their coherence or any hierarchy. The aim is therefore to see how ‘different norms or other normative instruments, whether public or private, fit together, complement (or counteract) each other, whether in a concerted manner or not, whether deliberately or accidentally, in order to produce regulatory effects’.Footnote 29 We note that in doing so, the normative sphere no longer appears as a pyramid, but rather as an ecosystem. We argue that if the normative ecosystem adopts a given configuration—if it produces a certain ‘order’—it is largely a function of the success of different networks of ‘norm entrepreneurs’ who ‘tinker’ and ‘cobble together’ different normative bricolages:
norm entrepreneurs [develop] systems that they cobble together from materials of all kinds and types that they borrow or recover from various legal and normative systems. All they have to do is help themselves to an environment saturated with norms, which is obviously no guarantee of their effectiveness. They are spoilt for choice in the multiplicity of national laws available, the proliferation of international standards and soft law rules, fundamental rights and general principles that are universal or proclaimed as such. In so doing, our normative tinkerers are in no way concerned with the coherence of any one system. In fact, they borrow standards and procedures from a multitude of different ‘orders’, whose elements they freely combine and mix.Footnote 30
Rather than assuming coherence in the normative sphere, the key issue is therefore to identify the underlying logic, the macro-discourse or the regime of reason that normative entrepreneurs and their DIY normative devices convey and to analyse the configuration of the resulting normative ecosystem. The underlying logics sustaining such ecosystems and the logics that emerge in these specific bricolages shape the implementation and application of normative devices and thus have a strong regulatory component. We find the metaphor of a ‘normative ecosystem’ to be heuristic, not least because it allows us to consider the relationship between norms and politics in a new light, that is, the type of conditions a given normative ecosystem offers to deliberation, democracy, autonomy, participation, self-determination, and so on.
Before we apply this framework to what we call EDC’s DIY FPIC regime, however, it is important to recall how Indigenous revindications of FPIC are rooted in struggles for self-determination. As such, the underlying grammar of Indigenous conceptions of FPIC is informed by such struggles.
III. FPIC as an expression of Indigenous self-determination
‘Self-rule’, according to James Tully, ‘is the oldest political good’.Footnote 31 In this section, we describe how the right to FPIC has emerged in the context of Indigenous struggles for self-determination and why, for that reason, it is best understood, from their point of view, as an expression of their self-determination. This is particularly important given that doctrinal developments in international law, for example, are centred around the tension that must necessarily exist between Indigenous self-determination and state sovereignty.Footnote 32 We hope that this section helps clarify, at least in part, the incongruity of a notion of FPIC compliance that ignores how this tension is expressed locally.Footnote 33
Resource extraction has historically shaped the complicated relationship between Indigenous Peoples and state administrations.Footnote 34 From a legal perspective, it can be argued that the narratives created to discredit Indigenous claims and existence have contributed to the legal foundations for the codification of those relationships in a way that facilitates land dispossession and the disruption of Indigenous place-based and grounded worldviews.Footnote 35 On the other hand, resistance to resource extraction has also led to the codification of legal regimes aimed at protecting Indigenous and human rights in general.Footnote 36 The different governance regimes that emerge both from the promotion of and resistance to resource extraction show how Indigenous, state and corporations’ territorialities—or relationships to land—have become entangled and now contribute simultaneously to governance regimes connected to extractivism.Footnote 37 Extractive territories—where all those norms interact constantly—are thus sites of great tension and violence.Footnote 38
FPIC has emerged as one of the most important normative references for Indigenous Peoples hoping to protect their interests and their lands in the context of resource exploitation.Footnote 39 Prima facie, FPIC’s objective is to establish an obligation to consult Indigenous Peoples and obtain their consent prior to the implementation of large-scale extractive development projects on their lands, ensuring bottom-up participation in the decision-making process around these projects.Footnote 40 FPIC, however, is referenced by normative instruments and actors in radically divergent ways.
Indigenous Peoples’ use of FPIC can be traced to the emergence of global Indigenous movements. Violence against Indigenous Peoples led to the rise of global Indigenous activism and the peasant movement in the 1970s and 1980s.Footnote 41 At the time, Indigenous Peoples in North America were fighting against states’ assimilationist policies and demanding their right to exist and their right to self-determination. The difficulties these mobilisations encountered prompted their members to enter the international arena. Non-governmental organisations allied with the movement held conferences which, in 1977, led to the beginning of negotiations between Indigenous Peoples and states at the United Nations. These initiatives allowed Indigenous Peoples to carve out a place for themselves in the mechanisms of the international system.Footnote 42
FPIC emerged gradually in international human rights law provisions. Over the last four to five decades,Footnote 43 it has been included in several international instruments such as the American Declaration on the Rights of Indigenous Peoples,Footnote 44 the International Labour Organization Convention 169 on Indigenous and Tribal Peoples (ILO 169) and more recently, UNDRIP. The United Nations Guiding Principles on Business and Human Rights also promote FPIC.Footnote 45
FPIC has been grounded in principles of autonomy and self-determination, which are also the basis for other cultural, political and land rights.Footnote 46 By claiming their Indigenous and collective rights under international law, Indigenous movements fought to allow Indigenous nations to live according to their worldviews, which are embedded and grounded in the land.Footnote 47 Consequently, what the Indigenous movements were advocating for by claiming a right to FPIC is far broader and more complex than a right to a consultation or economic participation in resource extraction. They requested that states acknowledge the multifaceted meaning of land for Indigenous nations, as articulated, for example, by Glen Coulthard: land as a central resource for material survival; land as an identity that is constitutive of the formation of a people; and land as a relationship that depends on accountability to human and non-human entities.Footnote 48
The international human rights regime is arguably favourable to this interpretation. Self-determination is central to applying FPIC as it depends on the particular status Indigenous Peoples bear in international law.Footnote 49 As laid out in Article 4 of UNDRIP, ‘Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions’.Footnote 50 Sarah Morales convincingly argues that UNDRIP, in the context of increasing extraction, implies mechanisms through which Indigenous laws and practices can be operationalised.Footnote 51
The fact that UNDRIP is now almost universally referenced does not, however, automatically translate to the actual realisation of FPIC as self-determination. States have been quick to (unilaterally) re-interpret the right to FPIC as an obligation to seek consent, not to obtain it.Footnote 52 Indigenous and other critical scholars, Indigenous authorities and Indigenous communities have expressed the worry that the universal endorsement of UNDRIP merely consolidates a body of discourses, politics and laws whose aim is to ‘domesticate’ Indigenous self-determination’s inherent unsettling of states’ claims to exclusive sovereignty.Footnote 53 Furthermore, there are concerns that the manner in which some actors have implemented FPIC has reduced it to a technical procedure divorced from its original substanceFootnote 54 and that extractive companies’ use of FPIC as a social management tool contradicts broader principles of legitimacy, representation and inclusiveness.Footnote 55
The point here is that the political grammar of FPIC is somewhat open-ended.Footnote 56 There is no question, however, that the promotion of FPIC by Indigenous nations, activists and intellectuals, and by other human rights defenders, pursues a teleological principle: self-determination. From that perspective, FPIC regimes are legitimate inasmuch as they are coherent with Indigenous self-determination, that is, inasmuch as they realise self-determination. Under that logic, self-determination constitutes the political grammar of FPIC: it must be rooted in and foster the structuring of Indigenous political communities.
The next part explores Canadian norm entrepreneurs’ efforts at uprooting FPIC from the principle of self-determination.
IV. Canadian normative bricolages and the uprooting of FPIC
Paradoxically or not, the inscription of Indigenous rights in international law coincides with the general devaluation of the legal form in favour of informal, diffuse and private-based instruments in global governance.Footnote 57 This shift away from teleological justifications was accompanied by a discourse exalting ‘pragmatic’, ‘dialogic’ and ‘horizontal’ modes of governance.Footnote 58
The global governance of natural resources itself took a sharp pragmatic turn in the 1990s. This resulted, in large part, from several waves of neoliberal reforms to national mining regimes worldwide since the 1980s. In line with international investment agreements before and since, these reforms all put forward different iterations of the ‘free entry’ principle, prioritising legal security and predictability for foreign investors over other principles and values such as democratic territorial organisation, sustainable development, sectoral linkages and Indigenous stewardship of the land.Footnote 59 In the process, laws were also uprooted from their teleological underpinnings, in the sense that their legitimacy depended increasingly on their effectiveness—or even their ability to self-implement through market rule—rather than on their consistency with the overall objectives they are supposed to help achieve.Footnote 60
Canada played an important role in this process, both as a model jurisdiction for extractive activities and as an active promoter of normative ‘solutions’ that might be applied in other jurisdictions. Indeed, the hegemonisation of the principle of free entry reproduced, in other jurisdictions, the same contradictions that existed in Canada between extractive political economies and Indigenous self-determination.Footnote 61 As the extractive frontier expanded at every new boom of the commodities cycle, conflicts with local communities multiplied.Footnote 62 A new field of ‘normative innovation’ has flourished in response to these conflicts and two interrelated areas of policy intervention and research have emerged under the umbrellas of CSR and BHR. We argue that by underlining enterprises’ responsibility, such innovations help justify their primary role in extractive sector governance and public actors’ secondary role or complete retreat, despite explicit parallel legal obligations of states.
In this part of the article, we describe how Canadian entities tinker with normative innovations in the field created between the de-teleologisation of governance and the conflicts this creates and contribute to reframing the political grammar underlying the right to FPIC—in other words, uprooting FPIC from Indigenous self-determination. We advance three interrelated hypotheses. They are:
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(i) Canada frames CSR as a palliative for defective host jurisdictions (‘weak governance zones’, ‘failed states’, etc.)—a sort of DIY normative device to compensate for a supposed lack of local rule of law caused by deficiencies in local jurisdictions. These include, as we will describe, Indigenous jurisdictions;
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(ii) The notion of ‘leverage’, as illustrated by EDC’s example, is at the core of CSR’s political grammar; and
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(iii) FPIC is profoundly transformed by this political grammar—uprooted from Indigenous Peoples’ self-determination, to be reframed as a social domestication instrument that extractive corporations can use to mitigate the risks of operating in Indigenous territories and in so-called defective jurisdictions.
We now examine each of these hypotheses in more detail.
Canada’s framing of CSR as a palliative for defective jurisdictions
Canada has long played a role as a norm exporter in the global extractive ecosystem, promoting a particular governance configuration for the global extractive sector and generating normative innovations for extractive governance since the 1990s, several of which originate in the private sector.Footnote 63
Canada has positioned itself as a convenient home jurisdiction for mining firms operating globally. Companies listed on Canadian stock exchanges (TSX and TSX-V) raise between a third and a half of the capital invested in the sector worldwide, and between 40 per cent and 55 per cent of mining companies, depending on the source, are listed on Canadian stock exchanges.Footnote 64 Canadian governments have worked hand in hand with industry to promote and justify these norms, deploying a global network of ‘norm entrepreneurs’Footnote 65 such as diplomats, mining executives, industry consultants and business associations.Footnote 66
Canada’s official CSR policies, for their part, have developed amid a debate that puts in opposition voluntary and mandatory measures for Canadian corporations operating overseas.Footnote 67 The notion that these measures are rendered necessary by deficiencies in host jurisdictions has been shared on both sides of the debate—although policy conclusions diverge sharply. Arguing in favour of mandatory measures implemented by home states, Simons and Macklin, for example, underline that the human rights violations corporations commit are enabled by ‘weak governance zones’.Footnote 68 The government of Canada, for its part, defines CSR as ‘the voluntary activities undertaken by a company over and above legal requirements’Footnote 69 and justified its voluntary Building the Canadian Advantage CSR policy in 2009, for example, by stating that ‘many countries face considerable capacity challenges in implementing extractive sector strategies, legislations and regulations that ensure investments and operations are socially and environmentally responsible; support the protection of human rights; and, [sic] produce sustainable benefits for communities’.Footnote 70
Canada eventually adopted the term ‘responsible business conduct’ (RBC) rather than CSR.Footnote 71 The Canadian RBC policy was last updated in 2022.Footnote 72 Although we discuss some of the changes made with this update below, they have not fundamentally altered the underlying logic of Canada’s approach towards voluntary and mandatory measures ‘to set out expectations and legal requirements for corporate conduct’.Footnote 73
The rationale of the Canadian government’s CSR and RBC policies is to help corporations mitigate risks inherent to operating in defective host jurisdictions. These policies do not focus on operations within Canada, as it is assumed, rightly or wrongly, that enterprises operating there will be attentive to their practices and that domestic regulations will apply if needed. The 2009 policy stated that CSR ‘makes good business sense since it enables companies to manage the social and environmental risks of their operations’.Footnote 74 The Office of the Extractive Sector CSR Counsellor was established at that time as an informal mediation body under the rationale that
[u]nresolved disputes directly affect businesses through expensive project delays, damaged reputations, high conflict management costs, investor uncertainty, and, in some cases, the loss of investment capital. In consultation with stakeholders, there was a strong support for a mechanism to enable the sector to resolve CSR disputes […] in a timely and transparent manner.Footnote 75
The political grammar of CSR as a means for businesses to mitigate operational risks in weak jurisdictions—rather than as a means to regulate corporate behaviour to prevent companies from benefitting from these weaknesses, or simply to prevent human rights abuses—was then reinforced by the fact that the CSR Counsellor would ‘not review the activities of a Canadian company on his or her own initiative, make binding recommendations or policy or legislative recommendations’ and would ‘only undertake review with the consent of the involved parties’.Footnote 76 In other words, the ‘normative good’ the CSR Counsellor provided was mediation services if extractive companies requested them. The protection of any substantive rights would come from the mediation itself.
Under pressure from Canadian civil society, however, Canada’s evolving CSR strategy progressively integrated regulations for corporations operating abroad—the underlying ‘problem’ being, again, deficient foreign jurisdictions since, as Seck notes, ‘the possible application of the international CSR standards endorsed in the Strategy to problems associated with extractive companies operations within Canada does not appear to have been considered’.Footnote 77 Although the 2014 Doing Business the Canadian Way policy still considered CSR to be a risk-management tool, the policy recognised that reputational risks to ‘the Canadian brand’ could only be efficiently deterred by exercising a certain degree of constraint over company behaviour. As a result, companies that refused to participate in mediation processes led by the CSR Counsellor, for example, were exposed to the withdrawal of government advocacy support abroad, while participation made them eligible for ‘enhanced […] economic diplomacy’.Footnote 78 However, it is worth noting that sanctions only followed for corporations that refused to participate in mediation processes, and not for those that failed to meet substantial standards. It is also worth noting that a degree of reputational sanction was contemplated for any party—corporation or community, human right defender or Indigenous nation—involved in extractive socio-environmental conflicts under the CSR Counsellor’s review, since ‘a decision by either party not to participate in the CSR Counsellor’s Office […] review process [would] be made public’.Footnote 79 The corollary of this injunction to engage in dialogue is, of course, to translate substantive human rights considerations into communication issues. Moral values associated with communication thus become the focus of legitimation narratives associated with the relationship between extractive companies and the social actors surrounding their projects, irrespective of power asymmetries or any teleological hierarchisation of the interests involved.Footnote 80
In fulfilment of an electoral promise, the Government of Canada further reviewed its CSR policy and established the Office of the Canadian Ombudsman for Responsible Enterprise (CORE) in 2019. Although CORE’s mandate is listed in the 2019 Responsible Business Abroad policy as ‘voluntary company-community dialogue facilitation and dispute resolution’,Footnote 81 it nonetheless differs in some important ways from that of the CSR Counsellor, which it replaced.Footnote 82 Even though CORE was denied the powers anticipated in initial government promises to give it the power to compel evidence from corporations, CORE’s power to review complaints for human rights abuses and to initiate a review independently of the consent of the corporation implicated represents a fundamental policy shift.Footnote 83 Furthermore, materials CORE has published explicitly acknowledge a potential contradiction between mediation and the appropriate treatment of human rights issuesFootnote 84 and CORE has taken some steps towards ensuring that its processes do not increase claimants’ vulnerabilities.Footnote 85
These elements diverge from Canada’s epistemological bias towards seeing its CSR and RBC policies as tools to enhance the competitiveness of Canadian companies operating in defective jurisdictions, as CORE’s mandate and procedures clearly incorporate a teleological, human rights logic. These elements notwithstanding, however, Canada’s underlying conception of CSR as a palliative for operating in weak jurisdictions is largely maintained. As mentioned above, CSR standards are considered to be minimum norms to be followed when host country laws fail to reflect ‘Canadian values’. As well, CORE’s mandate only applies outside Canada.Footnote 86 Many limits also remain in CORE’s mandate that hinder its ability to investigate human rights abuses, such as the lack of power to compel testimonies and documents.Footnote 87 Most importantly, as CORE can only recommend sanctions to the Canadian government, what influence it may have on the extractive sector’s normative ecosystem largely depends on whether the government upholds these recommendations—or even responds to them. The government has, to date of publishing, failed to acknowledge any of the CORE’s substantive determinations.Footnote 88
As the next section illustrates, other rather powerful Canadian norm entrepreneurs also act in this normative ecosystem. For them, not only is CSR a palliative for defective jurisdictions, but through different bricolages, it can help extractive companies establish legitimate order even where local jurisdictions fail to: DIY normative orders.
EDC’s contribution to the normative ecosystem: leverage
EDC is an often overlooked but crucial element of the network of Canadian norm entrepreneurs mentioned above. EDC is one of the largest export credit agencies in the world, facilitating an annual volume of over CAD130 billion in exports, foreign investment and trade development activities, about a quarter of which are in the mining, oil and gas sectors.Footnote 89 About 60 per cent of its support is in the form of credit insurance, helping corporations mitigate credit risk and enabling them to conduct business in ‘higher-risk’ markets.Footnote 90
EDC adheres to the OECD Common Approaches, a non-binding document with recommendations for ECAs. It is also an Equator Principles Financial Institution (EPFI).Footnote 91 Both the Common Approaches and the Equator Principles encourage financial institutions to ensure that those seeking financial support comply with the IFC Performance Standards. EDC’s Environmental and Social Review Directive, which has been developed ‘in close alignment’ with the IFC Performance Standards and the Equator Principles, is binding on EDC. It does not, however, oblige EDC to follow the IFC Performance Standards or the Equator Principles. EDC uses the IFC Performance Standards ‘as an overarching framework for environmental and social performance for projects where host country requirements are less stringent than the IFC Performance Standards’.Footnote 92 EDC maintains discretion when it comes to making a decision about funding, even where the client company does not meet the IFC Performance Standards.
EDC’s human rights, environmental and social risk assessment procedure is outlined in its ESRMP, last updated in 2022 following consultations with stakeholders.Footnote 93 EDC’s ESRMP also mobilises the IFC Performance Standards.Footnote 94 As an EPFI, EDC is expected to back these standards with formal contractual sanctions. It could, for example, withdraw funding to clients who fail to comply with the IFC Standards. Such measures, however, are rare among EPFIs and undocumented as far as EDC is concerned.Footnote 95 From the point of view of EDC, the Equator Principles are better understood as ‘a risk management framework […] for determining, assessing and managing environmental and social risk in projects and […] primarily intended to provide a minimum standard for due diligence and monitoring to support responsible risk decision-making’.Footnote 96 Under that logic, central to EDC’s understanding of its role is the notion of ‘leverage’:
Our practice is to use leverage to influence our customers’ actions to prevent and mitigate their actual and/or potential severe human rights impacts. We recognize that the extent of our leverage is variable and impacts our ability to influence the actions of our customers. Where we have insufficient leverage, EDC seeks ways to increase our leverage so that those severe human rights impacts can be effectively prevented and mitigated.Footnote 97
As EDC states in its submission to a 2018 Parliament of Canada legislative review:
[W]e want our financial partners and customers to know that best commercial practices are being upheld. This cannot always mean saying ‘no’ to transactions and leaving opportunities for Canada behind. Sometimes, it means being a force of positive influence for the companies we work with, and helping our customers achieve long-term responsible business success.Footnote 98
EDC’s impact as a normative entrepreneur is worth analysing in terms of the particular configuration of leverage induced in the normative ecosystem that surrounds the IFC Standards. Critics have long argued that under the logic of leverage, EDC treats the IFC Standards as merely aspirational, aiming to enhance Canadian business competitiveness rather than preventing human rights abuses.Footnote 99 Indeed, the stated purpose of EDC’s ESRMP is ‘to make Canadian companies internationally recognized as leaders in sustainable and responsible business, giving them the competitive advantage they need to succeed internationally’.Footnote 100
If using one’s leverage ‘cannot always mean saying no’, it is unclear under which circumstances it means, for EDC, ‘not saying yes’. Civil society organisations (CSOs) have identified several instances of companies receiving EDC support despite credible or proven allegations of environmental damage, corruption and human rights violations. For instance, one year after receiving EDC support, Canadian oil company Frontera’s operations were suspended by Colombia’s Constitutional Court because the company violated the rights of an Indigenous community. The Canadian company Kinross Gold received four EDC loans between 2014 and 2017, and then another in 2018. Earlier loans were granted after public authorities raised concerns about environmental damage and violations of community rights at a Brazilian mine, while the latter loan came after US authorities charged the company with corruption-related offences. Finally, Canadian tech company Netsweeper received a guarantee from EDC to sell internet censorship technology in 2016 to the Government of Bahrain, a country frequently criticised for suppressing human rights defenders through censorship, surveillance, arbitrary detention and torture.Footnote 101
Indeed, although the ESRMP allows financial support to be withheld based on environmental, social and human rights due diligence, EDC does not disclose information on such occurrences or whether there is an established threshold to do so.Footnote 102
Leverage is a powerful tool in the normative ecosystem. As noted above with regard to the injunction of dialogue, it puts aside substantial teleological principles and associated sanctions in favour of maintaining fluid communication between EDC and its clients. In doing so, the normative ecosystem tends to lose its teleological leaning in favour of implicit, pragmatic values related to reputation and competitiveness. In keeping with this logic, EDC’s impact on the normative ecosystem is to consolidate a notion of FPIC as a mere procedural rule of engagement between extractive companies and Indigenous communities, rather than a means for self-determination.
DIY FPIC: From self-determination to extractive companies ‘fixing’ Indigenous representation
A teleologically coherent solution to conflicts, violence and human rights violations linked to extractivism in Indigenous territories, as mentioned in the introduction, implies radical social transformations and wide-ranging institutional reforms supported by vibrant political communities—Indigenous and non-Indigenous. Logically, the most determinant processes underlying these reforms should deploy themselves at the national and sub-national level.
EDC, however, proposes that extractive companies mobilise transnational normative instruments to ‘cobble together’ FPIC. FPIC could then be ‘had’ regardless of a coherent normative architecture organising the relationship between state sovereignty and Indigenous self-determination. With EDC’s normative solution, transnational extractive companies do not depend on host jurisdictions. Rather, they bring FPIC kits in their toolboxes: they can do it themselves.
This subsection focuses on EDC’s implementation of IFC PS7 regarding Indigenous Peoples. To comply with IFC PS7, FPIC from affected communities is required in the following cases: if a project is located on lands traditionally owned by Indigenous Peoples, and adverse impacts such as loss of access to assets or resources or restrictions on land use can be expected;Footnote 103 if a project implies relocation from ‘communally held lands and natural resources’;Footnote 104 if a project significantly impacts critical cultural heritage;Footnote 105 or if a project proposes to use cultural heritage, including knowledge, innovations, or practices of Indigenous Peoples, for commercial purpose.Footnote 106
IFC PS7 cites UNDRIP. It also insists, however, that ‘there is no universally accepted definition of FPIC’Footnote 107 and formulates its own:
[FPIC] will be established through good faith negotiation between the client and the Affected Communities of Indigenous Peoples. The client will document: (i) the mutually accepted process between the client and Affected Communities of Indigenous Peoples and (ii) evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree. Footnote 108
IFC PS7 carefully ignores FPIC’s self-determination roots and reframes FPIC as procedural rules of engagement, thus avoiding any definition of FPIC that would relativise states’ sovereignty over their natural resources.Footnote 109 While the guidance notes that accompany IFCPS7 elaborate on issues such as Indigenous Peoples’ vulnerability with regards to ‘their past and ongoing relationship with dominant groups and the mainstream economy’ and ‘participatory approaches [that] reflect the views of the Affected Communities of Indigenous Peoples on expected project risks, impacts, and benefits’,Footnote 110 it also explicitly dismisses these views inasmuch as they contradict the state’s unquestioned sovereignty over natural resources. The Guidance Notes insist that ‘[a] determination that a group or community is indigenous for the purpose of Performance Standard 7 does not affect the political or legal status of such a group or community within specific countries or states’Footnote 111 and that ‘states have the right to make decisions on the development of resources pursuant to applicable national law, including those laws implementing host country obligations under international law. Performance Standard 7 does not contradict the state’s right to develop its resource’.Footnote 112
This limit to FPIC significantly contradicts the principles of self-determination and self-government outlined in UNDRIP.Footnote 113 With regards to self-government, the Guidance Notes stipulate that extractive companies must take account of ‘existing social structures, leadership, and decision-making processes as well as social identities such as gender and age’.Footnote 114 These Notes also advise seeking FPIC by ‘build[ing] upon existing customary institutions and decision-making processes’, with the important caveat that:
[i]n many situations, projects introduce issues that existing institutions and decision-making processes are poorly equipped to address. Inadequate capacity and experience may result in decisions and outcomes that have detrimental consequences for the Affected Communities and project relations with them. Specifically, poor processes, decisions, and outcomes may lead to challenges to existing institutions, decision-making processes, and recognized leadership and to disputes over agreements between the Affected Communities of Indigenous Peoples and the project.Footnote 115
Furthermore, the Guidance Notes situate issues of Indigenous leadership, governance and representativeness squarely under proponents’ authority:
Communities of Indigenous Peoples may be affected by issues related to governance, leadership and representativeness. Assessment of these issues will inform the engagement and negotiation process. Where administrative and traditional systems recognize different leaders, where leadership is known to be highly politicized and/or only marginally representative of the affected population or if there are multiple groups representing different interests, FPIC should rely on identification, recognition and engagement of greater numbers or representativeness of stakeholder subgroups.Footnote 116
The reference to ‘highly politicized leadership’ is not benign, especially where Indigenous governments invoke their own legal principles to determine their position on projects. The meaning of the expression is, to say the least, ambiguous—what political leadership is not politicised? It is safe to assume, however, that the degree of ‘politicization’, from the extractive company’s point of view, is proportional to the degree of resistance to the project or with the means employed to express opposition, and whether these are deemed ‘legal’ by state authorities.
That is already problematic, given that DIY FPIC is supposed to safeguard against the host state’s shortcomings, but the main point here is that leaving the legitimacy of Indigenous leadership to the company’s determination contradicts the very meaning of self-determination and forecloses jurisdictional arrangements that are necessary to reconcile Indigenous self-determination and state sovereignty. While states and companies often characterise Indigenous practices of opposition to extractive projects, such as road blockades, as de facto rather than de jure measures, for example, under Indigenous legal philosophies, ‘territorial rights’ not only articulate rights over the territory but legal obligations towards it—obligations that might include, in some cases, blockading.Footnote 117 Disqualifying Indigenous leadership as ‘highly politicized’ in that context dismisses these jurisdictional conflicts in favour of a vague, philosophically incoherent criteria associating ‘politicized’ with ‘conflictual’, ‘conflict’ with ‘negative’.Footnote 118
In conclusion, IFC PS7 frames FPIC as a communication framework whereby the political dimensions of Indigenous Peoples’ collective decision-making are translated into technical issues to be arbitrated not by Indigenous political communities themselves, not by wider political processes at the regional or national level, but by extractive companies.
Leverage in that context, one has to assume, would involve for EDC to offer recommendations over the company’s proper identification of their interlocutors, possibly circumventing ‘highly politicized and/or only marginally representative’ political representation: a process that, prima facie, would seem to contradict the very essence of Indigenous self-determination.
V. Conclusion
Are norms converging around UNDRIP’s definition of FPIC? UNDRIP’s ubiquitous character in policies, codes of conduct, industry best-practices and CSR instruments would seem to suggest so. In this article, however, we argue that this convergence is based on an overly optimistic assumption. Cross-referral does not imply convergence. Even though UNDRIP is referred to as a source in other normative instruments, these can mobilise FPIC in isolation from the other elements that constitute UNDRIP’s conceptual economy, first and foremost, self-government and self-determination. In the case analysed here, EDC frames FPIC as a procedural tool for extractive companies to exert authority over Indigenous governance, effectively uprooting FPIC from self-determination.
For that reason, we suggest that it is vital to consider the interaction between all the different normative instruments that are deployed in extractive territories. We find the metaphor of a ‘normative ecosystem as an environment for political communities’ to be useful on two principal counts: first, to empirically describe the internormative dynamics at play; second, to emphasise the importance of addressing the dialectic between political processes and norms. That is why we contrast the divergent political grammars of Indigenous self-determination and DIY FPIC.
Indeed, comparing discrete FPIC instruments does not provide a complete picture, as different norm entrepreneurs constantly mobilise and combine different normative instruments as they see fit, according to the objectives they pursue. For the same reason, it is unreasonable to assume that norms are actually converging just because they share a common reference—UNDRIP, in our case. Because of this, documenting the role of different norm entrepreneurs in pushing forward different normative solutions in the global extractive sector is crucial to a proper understanding of BHR issues.
The Canadian norm entrepreneurs described above pursue a certain configuration of the normative ecosystem, where extractive projects are protected from Indigenous self-determination and jurisdiction, from democratic control, from the teleological imperatives of law—in short, from the structuring of societies in political communities. We characterise this kind of configuration as an extractive normative ecosystem.
Characterising EDC as a global norm entrepreneur and showing how its FPIC regime diverges from Indigenous conceptions of FPIC as rooted in self-determination should help inform social mobilisation in Canada and elsewhere. It should also encourage Canada to reconsider the idea that DIY FPIC can serve as an effective palliative for ‘weak’—or deficient in any way, regardless of the qualificative employed—jurisdictions. Without necessary social transformations and wide-ranging institutional reforms supported by vibrant Indigenous and non-Indigenous political communities, FPIC remains subject to existing asymmetrical relations of power among stakeholders, favouring the most powerful, including industry. Although they aim to address current dissatisfaction and put forward solutions, avenues such as DIY FPIC thus tend to mask more fundamental issues and needed regulatory, institutional and political changes. Looking ahead, one of the challenges that emerges is finding the political will to engage in debates about the issue of territorial control and the conditions under which resource development and the determination of competing uses take place—in Canada and around the world.
Our argument does not assume Indigenous political representation to be unproblematic. As in any society, Indigenous political representation is by definition contested, and answering the question ‘who has the right and responsibility to represent Indigenous Nations’ is not always straightforward. It certainly is not one that can be answered unequivocally in this article. Given some of the complexities alluded to above, pragmatic approaches such as those described here can be appealing inasmuch as they would allow for political nuances and context-specific solutions.Footnote 119
The proposition that extractive companies can serve as vectors for normative solutions, providing ‘legitimate order’ in conflict zones, unceded territories and fragile ecosystems, however, is profoundly risky. Indigenous Peoples have a long experience of colonial states tinkering with their political representation as a way to pre-empt or domesticate their collective action. The colonial toolkit has never been devoid of nuanced and context-specific instruments.
This is one of the reasons why our argument should not be interpreted as a plea for exclusively public or state-centred regulation. Indigenous self-determination, as we noted above, implies shared jurisdictions. On the other hand, EDC, as a Crown corporation, is also a stark example of how states themselves can take advantage of the blurry area between the public and private spheres to shroud certain economic interests from democratic accountability. The Canadian government is formally accountable for EDC, and EDC is ultimately accountable to the Canadian Parliament. Under the logic of leverage, however, most of EDC’s decisions are labelled as ‘private’ in the context of its relationship with its clients.
We do not, in this article, offer a way forward, but we hope to have convincingly argued that FPIC cannot be delegated exclusively to the extractive industry. If it seems illusory to put the genie of hybrid public-private regulation, so to speak, back in the bottle, we insist that by failing to strengthen the role of teleologically oriented regulation, on the assumption that private extractive enterprises are better equipped to pursue the public interest, current responses shy away from the potentially central role of public policies as transformative catalysts. Such a role would allow them to spur structural shifts, both social and economic, in favour of more equitable and environmentally sustainable options in the long term.
No sustainable solution can be attained without vibrant political communities, Indigenous and non-Indigenous, mobilised around a shared teleological imperative of human dignity. Normative solutions put forward by norm entrepreneurs such as EDC should be judged on the basis of whether they contribute to—or pre-empt—such mobilisation.
Competing interest
None of the authors declare any conflict of interest.
Acknowledgements
The authors are extremely grateful for the reviewers’ and the journal’s editors’ insightful comments. We are also indebted to Rachel Hatcher for her excellent linguistic revision.
We acknowledge the Social Sciences and Humanities Research Council of Canada’s funding (Grant 892-2021-1040).
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