A/HRC/21/55 (v) With whom to consult: representation of indigenous peoples 15. States, extractive enterprises and others must bear in mind that indigenous peoples have the right to determine their own representatives themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. Furthermore, account should be taken of potential changes in the traditional authority structures of indigenous peoples as a result of outside influences. 16. Indigenous peoples should make clear to governments and extractive enterprises who should be consulted and from whom to seek consent.10 Where there are conflicting views on the legitimate representatives and/or representative structures of an indigenous people, the group should establish its own appropriate procedures to determine with whom governments and extractive enterprises should consult and/or seek consent. If necessary and desired, indigenous peoples can seek outside, independent assistance, including financial, to determine disputes. 17. Where indigenous peoples have conflicting views on proposed or ongoing extractive activities, they should seek to work together to determine their joint response. (b) Free, prior and informed consent 18. Depending on the indigenous peoples‟ decision-making processes concerned and the nature of the activity concerned, consent may not always require indigenous peoples to reach a unanimous consensus agreement to the extractive activity for it to proceed.11 On the other hand, and again dependent on the particular decision-making processes of the indigenous peoples concerned, majority support may also not be adequate. There may be traditional mechanisms that set out other requirements. 19. At the start of a consultation process indigenous peoples should make clear, and agree on, how they will make a collective decision on the extractive activity, including the threshold to indicate there is consent. (i) Mandatory requirement to obtain indigenous peoples‟ consent 20. In some cases, the duty to obtain the free, prior and informed consent of indigenous peoples is mandatory. Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples prohibits the forcible removal of indigenous peoples from their lands or territories, which includes forcible removal in relation to proposed or ongoing extractive activities. It states: “No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” Equally, article 29, paragraph 2, states that “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent”. (ii) Contextual requirement to obtain indigenous peoples‟ consent 21. In other cases, such as where the approval of projects will affect indigenous peoples‟ lands, territories and resources although they are not situated on such lands, territories and 10 11 18 The Special Rapporteur on the rights of indigenous peoples states, “indigenous peoples may also need to develop or revise their own institutions, through their own decision-making procedures, in order to set up representative structures to facilitate the consultation processes” (A/HRC/18/35, para. 52). IFC Performance Standard 7 states that “free, prior and informed consent does not necessarily require unanimity and may be achieved even when individuals and groups within the community explicitly disagree” (para. 12).