Legislating Support for Self-Determination and FPIC: Lessons from Colombia
July 10, 2025
BY Llana Arreza
Recent developments in Colombia shed light on potential pathways for strengthening state recognition of self-determination and free, prior, and informed consent (FPIC) of Indigenous peoples through legislation. In May 2025, the national government of Colombia published Decree 0488/2025,[1] which advances Indigenous self-determination and autonomy within state recognized Indigenous Territories through the force of law. The Decree’s introduction recognizes the establishment of new relationships between the state and Indigenous populations, particularly ones that are horizontal rather than vertical in nature.[2] It also clarifies that Indigenous Peoples are determining actors in the construction of the nation.[3]
Indigenous Territories within Colombia are reserves over which Indigenous Peoples hold title and rights. They are constitutionally recognized political and administrative entities, which comprise approximately one third of Colombia’s geographic area.
The Decree lays out a process for self-determining Indigenous Councils to establish themselves as state recognized bodies with self-governing powers within a delimited geographic area.[4] Where distinct Indigenous authorities have overlapping territories, the process requires consent as between those Indigenous authorities. State recognition leads to an intercultural agreement to clarify powers and functions and the coordination of such with other state and territorial authorities.[5] The framework emphasizes legal pluralism, self-determination, and decision-making guided by Indigenous Peoples’ own systems of knowledge. Article 18 confirms that Indigenous Territories are to be governed by a body formed and regulated in accordance with Indigenous Peoples’ own laws, subject only to the Constitution.
The Decree also outlines mechanisms for strengthening Indigenous jurisdictions. Specifically, legal practitioners must recognize and respect the authority of Indigenous Councils to establish their own judicial norms in accordance with their laws and jurisdiction.[6] Provisions are also included for state financial support to strengthen the exercise of Indigenous jurisdiction and support projects led by Indigenous Peoples within their Territories.[7]
Importantly, the Decree provides that the Colombian government has “no influence whatsoever” on the decisions of an Indigenous Council[8] – signalling the country’s adoption of FPIC.
Drawing Parallels to Canada’s Laws
Decree 0488/2025 is a recent enactment, and it remains to be seen how it will be implemented. This is a clear and innovative example of how a law can be structured to lend support to the right of self-determination and FPIC. It moves beyond recognition, and implements procedures for legal pluralism and financial support for Indigenous jurisdiction at a broad level, creating a framework that diverse Indigenous nations in Colombia can choose to engage with.[9]
Within Canada’s constitutional framework, legislation and courts play a key role in interpreting and enforcing laws. The enactment of BC’s Declaration on the Rights of Indigenous Peoples Act (DRIPA),[10] and the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA)[11] require that legislation be consistent with UNDRIP. This means that legislation needs to support pluralism within the legal processes it provides for. Legislation can enable legal pluralism by creating a transparent and stable framework for the operation of both state legal systems and Indigenous legal orders. Legislation can do this while continuing to uphold rights and protect citizens from arbitrary exercises of power – key aspects of the rule of law.
Interpretative principles requiring that legislation be construed as upholding the rights of Indigenous peoples is one pathway towards applying law in a legally plural manner. Another pathway, exemplified in Colombia’s Decree, is to shift legislative frameworks towards explicitly enabling procedures for the exercise of rights and jurisdiction flowing from the right to self-determination. A proposed amendment to the recently passed federal Building Canada Act, put forward by Senator Paul Prosper, demonstrated one way in which the new law could explicitly recognize the right of Indigenous peoples to FPIC.[12] The proposed amendment would have required the Governor in Council to consider the extent to which a project could “advance the interests of Indigenous peoples by fulfilling Canada’s commitment to obtaining free, prior and informed consent of those peoples”.[13] While the amendment did not pass, it is an example to consider as we innovate ways to meet the requirements of DRIPA and UNDA.
In the 2025 Speech from the Throne, His Majesty King Charles III explicitly affirmed Canada’s commitment to upholding FPIC in its approach to Indigenous relations and resource development.[14] Weaving the rights of self-determination and FPIC into Canada’s legislative fabric could support the implementation of this commitment. As quoted by Senator Prosper using the words of Chief Shelly Moore-Frappier of the Temagami First Nation, “The honour of the Crown is not just ceremonial; it is the moral foundation of your relationship with First Peoples. That honour is on the line.”[15]
Learning from and understanding developments in other jurisdictions can provide guidance for the implementation of UNDRIP in Canada. Colombia’s Decree 0488/2025 is an important development showing how innovative legal and institutional mechanisms can support a more pluralistic approach to Crown–Indigenous relations.
[1] Republic of Colombia, Decreto 0488 de 2025, translated in English (5 May 2025) (“Decree 0488/2025”).
[2] Ibid, in the last paragraph of the introduction.
[3] Ibid, in the third paragraph of the introduction.
[4] Ibid, at arts 5-11.
[5] Ibid, at art 11.
[6] Ibid, at art 25.
[7] Ibid, at art 26.
[8] Ibid, at art 19.
[9] Ibid, at art 6 (para 2). The Decree sets out a framework for when the jurisdictional scope of the Indigenous Territory “is located in more than one reservation or other indigenous territorial entity” . Under such circumstances, this provision requires the application for the Indigenous Territory to be signed by the respective Indigenous governing bodies.
[10] Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44.
[11] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.
[12] Canada, Debates of the Senate (Hansard), 45th Parl, 1st Sess, Vol 154, No 16 (26 June 2025) (P. Prosper) at 11:50.
[13] Ibid at 12:20.
[14] Canada, His Majesty the King in Right of Canada, Building Canada Strong: A bold, ambitious plan for our future Speech from the Throne to open the first session of the 45th Parliament of Canada (Library and Archives Canada, 2025).
[15] P. Prosper, supra note 9 at 12:20.
