A/HRC/21/55
26.
In its Performance Standard 7 (paras. 13-17), the International Financial Corporation
describes a number of situations in which indigenous peoples‟ free, prior and informed
consent is required, including those involving:
(a)
Impacts on lands and natural resources subject to traditional ownership or
under customary use (including where the indigenous peoples do not hold legal title to
those lands and resources);
(b)
Relocation of indigenous peoples from lands and natural resources subject to
traditional ownership or under customary use;
(c)
Impacts on certain cultural heritage, such as sacred sites.
27.
In summary, the factors relevant to assessing whether the duty to obtain indigenous
peoples‟ consent arises in the context of proposed and ongoing extractive activities include:
(a)
Matters of fundamental importance to rights, survival, dignity and wellbeing, assessed from the perspective and priorities of the indigenous peoples concerned,
taking into account, inter alia, the cumulative effects of previous encroachments or
activities and historical inequities faced by the indigenous peoples concerned;
(b)
The impact on indigenous peoples‟ lives or territories. If it is likely to be
major, significant or direct, indigenous peoples‟ consent is necessary;
(c)
(iii)
The nature of the measure.
Mutual consent, as set out in treaties
28.
The fundamental requirement for mutual consent to be obtained is foundational to
treaties between indigenous peoples and States, as recognized by numerous United Nations
studies. This has been affirmed by article 37 of the United Nations Declaration on the
Rights of Indigenous Peoples and preambular paragraphs 14 and 24, which underscore the
importance of forming partnerships between indigenous peoples and States.
29.
In advice No. 2, the Expert Mechanism noted that “several treaties between States
and indigenous peoples affirmed the principles of indigenous peoples‟ consent as an
underpinning of the treaty relationship between States and indigenous peoples” (para. 12).
C.
1.
(a)
Policy
States should provide clarity on consultation and consent seeking based on the legal
framework identified above
Objective of consultations
30.
Consent should always be the objective of consultations, as noted in advice No. 2
(para. 9).
(b)
How to consult, collaborate and build partnerships
(i)
Clarity of information
31.
Information about the potential impact of extractive activities should be presented in
a way that is understandable to indigenous peoples (A/HRC/12/34). Depending on the
circumstances, this may require that the information be presented orally to indigenous
peoples with interpretation into indigenous languages.
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