At the December 2009 climate talks in Copenhagen, treaty negotiators agreed to include recognition of the U.N. Declaration on the Rights of Indigenous Peoples in the proposed draft agreement to succeed the Kyoto Protocol. If approved, the new climate treaty would be the first international environmental law to maintain that indigenous peoples must express their “free, prior, and informed consent” for any conservation program to proceed within their territory. (In a promising move, the precautionary brackets on this controversial text were removed in Bonn earlier this month.)

The inclusion of “free, prior, and informed consent” would, theoretically, protect indigenous peoples from unfair treatment in the Reducing Emissions from Deforestation and Forest Degradation (REDD) deals that are under way as part of international climate agreements. Many indigenous peoples organizations are concerned that groups may be coerced into REDD benefit-sharing agreements or forced off their land entirely.

Due in large part to opposition from the three countries that had not adopted the U.N. Declaration on the Rights of Indigenous Peoples—Canada, New Zealand, and the United States—the draft climate treaty states only that safeguards “should” be followed and merely “notes” that the UN has adopted the declaration.

But these countries are beginning to shift their positions. New Zealand has since affirmed the declaration, and Canada’s governor general plans to endorse it, according to a March announcement. Both governments, however, noted that the declaration is merely an “aspirational” document that will not have an impact on domestic law. The United States is conducting a formal review of the declaration, UN Ambassador Susan Rice said in April.

Industry players, too, appear to be more willing to accept the premise of “free, prior, and informed consent.” Talisman Energy, a Canadian oil and gas company, released a report in May on the feasibility of adopting such a policy. The report concludes that “in the long-term, the benefits for oil and gas companies of obtaining community agreement based on [free, prior, and informed consent] principles, and thereby both supporting their social license to operate and reducing legal and reputational risks, are likely to outweigh the substantial challenges of securing consent.”

The World Bank, which oversees the funding for many REDD projects, continues to adhere to a standard of “free, prior, and informed consultation,” rather than “consent.” The term “consultation” is a “truncated approach to the broad ‘community consensus’ each project is intended to secure,” wrote Laura Westra in her 2008 book Environmental Justice and the Rights of Indigenous Peoples. In other words, the World Bank is off the hook if it informs indigenous peoples about a project. As the Bank stated in a recent publication: “It is important that any adverse impacts [on indigenous peoples] are avoided, or where not feasible, minimized or mitigated.” With “minimized” not defined by consensus, I worry.

If the United States and Canada ratify the indigenous peoples’ declaration, the World Bank may agree to change its legal language to “consent,” said former Bank environment advisor Robert Goodland at an event in Washington, D.C. this week. “The World Bank will have to eat its words, get real, and follow free, prior, and informed consent,” Goodland said.

Such support from the United States and Canada may also help improve the “safeguards” for indigenous peoples when climate negotiators meet for the next major climate summit this November in Cancun, Mexico.