39/62 Free, prior and informed consent: a human rights-based approach - Study of the Expert Mechanism on the Rights of Indigenous Peoples
Document Type: Final Report
Date: 2018 Aug
Session: 39th Regular Session (2018 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Item5: Human rights bodies and mechanisms
Human Rights Council Thirty-ninth session
10–28 September 2018
Agenda items 3 and 5
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Human rights bodies and mechanisms
Free, prior and informed consent: a human rights-based approach
Study of the Expert Mechanism on the Rights of Indigenous Peoples
The Expert Mechanism on the Rights of Indigenous Peoples carried out the present
study on a human rights-based approach to free, prior and informed consent in accordance
with its mandate under Human Rights Council resolution 33/25.
The study concludes with Expert Mechanism advice No. 11 on indigenous peoples
and free, prior and informed consent.
United Nations A/HRC/39/62
1. In accordance with its mandate under Human Rights Council resolution 33/25, at its
tenth session, held in July 2017, the Expert Mechanism on the Rights of Indigenous Peoples
decided to produce a study on free, prior and informed consent, as it appears in several
provisions of the United Nations Declaration on the Rights of Indigenous Peoples. For this
purpose, the Expert Mechanism held a seminar in Santiago on 5 and 6 December 2017. The
present study was informed by presentations shared at the seminar and submissions by
Member States, indigenous peoples, national human rights institutions, academics and
2. The study seeks to contribute to an understanding of free, prior and informed
consent in the context of developing practices and interpretations of this human rights norm
enshrined in the Declaration. Taking into account 11 years of advocacy and jurisprudence
following the adoption of the Declaration, the present study is not intended to be either
exhaustive or definitive, but should contribute to the body of interpretative guidance now
available to States, indigenous peoples and others working on issues of concern to
II. Human rights basis of free, prior and informed consent
3. Free, prior and informed consent is a human rights norm grounded in the
fundamental rights to self-determination and to be free from racial discrimination
guaranteed by the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights and the International Convention on the
Elimination of All Forms of Racial Discrimination. The provisions of the Declaration,
including those referring to free, prior and informed consent, do not create new rights for
indigenous peoples, but rather provide a contextualized elaboration of general human rights
principles and rights as they relate to the specific historical, cultural and social
circumstances of indigenous peoples (see A/HRC/9/9, para. 86), as shown in the following
4. Consistent with the right to self-determination, indigenous peoples have always had
the inherent power to make binding agreements between themselves and other polities. The
contemporary concept and practice of mutually negotiated, consensual agreement among
indigenous peoples and State governments is deeply grounded in the historic treaty-making
process that characterized indigenous-State relations for several hundred years in many
regions of the world and persists in many places where those treaties remain the law of the
land, 2 even if they have often been dishonoured. 3 Historically and today, it can be
challenging for indigenous peoples to negotiate with States under conditions of colonization
and the many other limitations that often characterize the situation of indigenous peoples
around the world.
5. Yet, as Special Rapporteur Miguel Alfonso Martínez concluded in his final report,
the process of negotiation and seeking consent inherent in treaty-making is the most
suitable way not only of securing an effective contribution from indigenous peoples to any
effort towards the eventual recognition or restitution of their rights and freedoms, but also
of establishing much needed practical mechanisms to facilitate the realization and
implementation of their ancestral rights and those enshrined in national and international
texts. It is thus the most appropriate way to approach conflict resolution of indigenous
1 All the submissions are available from
2 E.g., Treaty No. 6 between the Cree and other Nations with the British Crown, in 1876, made
reference to the requirement for “consent” in paragraph 3, as did article 16 of the 1868 Treaty of Fort
Laramie between the United States of America and the Oceti Sakowin States.
3 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).
issues at all levels with indigenous free and educated consent (see E/CN.4/Sub.2/1999/20,
para. 263). He also referred to a widespread desire of indigenous peoples to establish a
solid, new and different kind of relationship — quite unlike the almost constantly
adversarial, often acrimonious relationship they had always had — with the non-indigenous
sector of society in countries where they coexisted (ibid., para. 262). In this context, the
standards for free, prior and informed consent articulated in the Declaration are particularly
important to indigenous peoples’ relationships with States today and going forward.
6. The right to self-determination is the fundamental human right upon which free,
prior and informed consent is grounded. It includes internal and external aspects. 4
Historically, the right to self-determination, which is rooted in the decolonization
movement, was devised to ensure subjected nations and peoples could recover their
autonomy, preside over their destinies, make decisions for themselves and control their
resources.5 The right to self-determination was indeed construed as a pillar right, including
other rights of peoples and nations to be free from coercion of any sort, to live in dignity
and to enjoy all rights equally, including the right to be responsible for their futures, to be
fully informed and to be in a position to freely refuse or accept offers, plans, projects,
programmes and proposals that affected them or their resources.
7. The concepts of being free, being fully informed, having the right to say yes or no
and having control over their own lands and resources as nations or peoples are not
therefore new in international human rights law.6 These concepts derive from the elements
of the right to self-determination, on which the Declaration bases its provisions on free,
prior and informed consent, as a way of operationalizing the right to self-determination,
taking into account the particular historical, cultural and social situation of indigenous
8. The international legal framework that conceptualized the right to self-determination
paid particular attention to peoples and nations recovering control over their lands and
natural resources as an important constituent element of the right to self-determination.7 It
is for this reason that free, prior and informed consent is of particular relevance to lands and
9. Free, prior and informed consent is also grounded in the human rights framework
devised to dismantle the structural bases of racial discrimination against indigenous
peoples. The Doctrine of Discovery,8 along with other doctrines of conquest that justified
the legal and policy framework for dispossessing indigenous peoples of their lands and
annihilating their cultures, was based on racial theories and principles that considered
indigenous peoples as inferior beings who could not possibly own lands and decide their
own futures. The international indigenous rights movement in the 1960s and 1970s
highlighted systemic racial discrimination and human rights violations faced by indigenous
peoples, prompting a study on the issue by the Sub-Commission on Prevention of
4 See Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge, Cambridge
University Press, 1995).
5 See General Assembly resolution 1514 (XV).
6 See General Assembly resolution 1803 (XVII); and Nicolaas Schrijver, “Self-determination of
peoples and sovereignty over natural wealth and resources” in Realizing the Right to Development:
Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to
Development (United Nations publication, Sales No. E.12.XIV.1).
7 See Marion Mushkatt, “The process of decolonization: international legal aspects”, University of
Baltimore Law Review, vol. 2, No. 1 (Winter 1972).
8 See the recommendations of the Permanent Forum on Indigenous Issues following its discussion on
“The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for
past conquests” (see E/2012/43-E/C.19/2012/13).
Discrimination and Protection of Minorities.9 This eventually led to the elaboration of the
Declaration, as a dual framework combining remedial rights with ongoing rights.
10. As early as 1997, 10 years before the adoption of the Declaration by the General
Assembly, the Committee on the Elimination of Racial Discrimination concluded that racial
discrimination constituted the main underlying cause of most discrimination suffered by
indigenous peoples. It affirmed that discrimination against indigenous peoples fell under
the scope of the Convention and that all appropriate means had to be taken to combat and
eliminate such discrimination. 10 The Committee pointed specifically at “consent” as a
human rights norm seeking to negate false doctrine and dismantle conceptual structures that
dispossessed and disempowered indigenous peoples. It called upon States to ensure that
members of indigenous peoples had rights in respect of effective participation in public life
and that no decisions directly relating to their rights and interests were taken without their
informed consent. 11 It also called upon States to recognize and protect the rights of
indigenous peoples to own, develop, control and use their communal lands, territories and
resources and, where they had been deprived of their lands and territories traditionally
owned or otherwise inhabited or used without their free and informed consent, to take steps
to return those lands and territories.12
III. Free, prior and informed consent as a human rights norm
11. Free, prior and informed consent as provided for in the Declaration has three major
rationales. First, it seeks to restore to indigenous peoples control over their lands and
resources, as specified in article 28. Some authors argue that, “free, prior and informed
consent has its origins in the native title principle, according to which native people have
their right to lands based on their customary law and sustained connection with the land”,13
and others that “historical legal doctrine firmly establishes indigenous peoples’ sovereign
rights over ancestral lands and resources as a matter of long-standing international law”.14
Second, the potential for free, prior and informed consent to restore indigenous peoples’
cultural integrity, pride and self-esteem is reflected in article 11 of the Declaration.
Indigenous peoples’ cultural heritage, including human remains, taken without consent, are
still held by others. Third, free, prior and informed consent has the potential to redress the
power imbalance between indigenous peoples and States, with a view to forging new
partnerships based on rights and mutual respect between parties (see
A/HRC/EMRIP/2010/2), as reflected in articles 18 and 19 of the Declaration.
B. Nature of free, prior and informed consent as a human rights norm
12. The Declaration recognizes collective rights and protects collective identities, assets
and institutions, notably culture, internal decision-making and the control and use of land
and natural resources. The collective character of indigenous rights is inherent in
indigenous culture and serves as a bulwark against disappearance by forced assimilation.
13. Free, prior and informed consent operates fundamentally as a safeguard for the
collective rights of indigenous peoples. Therefore, it cannot be held or exercised by
9 See “Martínez Cobo Study” (E/CN.4/Sub.2/476 and Add.1–5; E/CN.4/Sub.2/1982/2 and Add.1–7;
and E/CN.4/Sub.2/1983/21 and Add.1–7).
10 See Committee on the Elimination of Racial Discrimination general recommendation No. 23 (1997)
on the rights of indigenous peoples.
13 See MacInnes, Colchester and Whitmore submission.
14 S. James Anaya, “Divergent discourses about international law, indigenous peoples, and rights over
lands and natural resources: toward a realist trend”, Colorado Journal of International Environmental
Law and Policy (Spring 2005).
individual members of an indigenous community. The Declaration provides for both
individual and collective rights of indigenous peoples. Where the Declaration deals with
both individual and collective rights, it uses language that clearly distinguishes “indigenous
peoples” from “individuals”. Understandably, however, none of the provisions of the
Declaration dealing with free, prior and informed consent (arts. 10, 11, 19, 28, 29 and 32)
make any reference to individuals. To “individualize” these rights would frustrate the
purpose they are supposed to achieve.15
C. Scope of free, prior and informed consent
1. Free, prior and informed consent: rights to consultation, participation and to lands
14. Free, prior and informed consent is a manifestation of indigenous peoples’ right to
self-determine their political, social, economic and cultural priorities. It constitutes three
interrelated and cumulative rights of indigenous peoples: the right to be consulted; the right
to participate; and the right to their lands, territories and resources. Pursuant to the
Declaration, free, prior and informed consent cannot be achieved if one of these
components is missing.
15. States’ obligations to consult with indigenous peoples should consist of a qualitative
process of dialogue and negotiation, with consent as the objective (see A/HRC/18/42,
annex, para. 9). The Declaration does not envision a single moment or action but a process
of dialogue and negotiation over the course of a project, from planning to implementation
and follow-up. Use in the Declaration of the combined terms “consult and cooperate”
denotes a right of indigenous peoples to influence the outcome of decision-making
processes affecting them, not a mere right to be involved in such processes or merely to
have their views heard (see A/HRC/18/42). It also suggests the possibility for indigenous
peoples to make a different proposal or suggest a different model, as an alternative to the
one proposed by the Government or other actor.
16. Former Special Rapporteur on the rights of indigenous peoples James Anaya
underscored that the Declaration suggests a heightened emphasis on consultations that are
in the nature of negotiations towards mutually acceptable arrangements prior to decisions
on proposed measures, rather than mechanisms for providing indigenous peoples with
information about decisions already made or in the making, without allowing them
genuinely to influence the decision-making process (A/HRC/12/34, para. 46). Consultation
will also often be the starting point for seeking free, prior and informed consent.
17. The right of indigenous peoples to participate in decision-making is provided for
separately in article 18 of the Declaration, a provision grounded in article 25 of the
International Covenant on Civil and Political Rights, which guarantees every citizen’s right
to “take part in the conduct of public affairs”. The Declaration adapts this general right to
participation to the needs and circumstances of indigenous peoples by seeking to achieve
two objectives: first, to correct de jure and de facto exclusion of indigenous peoples from
public life or decision-making processes owing to many factors, including prejudiced views
against them, a low level of education, difficulties in obtaining citizenship or identification
documents and non-participation in electoral processes and political institutions; and,
second, to revitalize and restore indigenous peoples’ own decisions-making and
representative institutions that have either been disregarded or abolished. These institutions
should be recognized, revitalized and given opportunities to participate in decision-making.
18. The Human Rights Committee has also elaborated on indigenous peoples’ right to
participate in a way that goes beyond consultation, noting that participation in the decision-
making process must be “effective”.16 The supervisory bodies of the International Labour
Organization (ILO) have underlined the interconnection between consultation and
15 See Siegfried Weissner, “Rights and Status of Indigenous Peoples: A Global Comparative and
International Legal Analysis”, Harvard Human Rights Journal, vol. 12 (1999).
16 See Poma Poma v. Peru (CCPR/C/95/D/1457/2006), para. 7.6.
participation.17 Participation connotes more than mere consultation and should include the
development of initiatives by indigenous peoples. “In this sense, the intertwined concepts
of consultation and participation are mechanisms to ensure that indigenous peoples can
decide their own priorities for the process of development and exercise control over their
own economic, social and cultural development”.18
19. The rights of indigenous peoples over their lands, resources and territories are also
integral parts of free, prior and informed consent, as construed in the Declaration. The right
to “own, use, develop and control” the lands, territories and resources (art. 26) gives rise to
a right to free, prior and informed consent consistent with indigenous peoples’ right of self-
determination. In this regard, the role of free, prior and informed consent is to safeguard
indigenous peoples’ cultural identity, which is inextricably linked to their lands, resources
2. Constituent elements of free, prior and informed consent
20. As affirmed in the Declaration, decisions to grant or withhold consent must be free.
The term “free” is understood as addressing both direct and indirect factors that can hinder
indigenous peoples’ free will. To that end, for a process of consultation to be genuine in the
form of a dialogue and negotiation towards consent, the following should occur or the
legitimacy of the consultation process may be called into question:
(a) The context or climate of the process should be free from intimidation,
coercion, manipulation (see A/HRC/18/42, annex, para. 25) and harassment, ensuring that
the consultation process does not limit or restrict indigenous peoples’ access to existing
policies, services and rights;
(b) Features of the relationship between the parties should include trust and good
faith, and not suspicion, accusations, threats, criminalization (see A/HRC/39/17), violence
towards indigenous peoples or prejudiced views towards them;
(c) Indigenous peoples should have the freedom to be represented as traditionally
required under their own laws, customs and protocols, with attention to gender and
representation of other sectors within indigenous communities. Indigenous peoples should
determine how and which of their own institutions and leaders represent them. They should
therefore enjoy the freedom to resolve international representation issues without
(d) Indigenous peoples should have the freedom to guide and direct the process
of consultation; they should have the power to determine how to consult and the course of
the consultation process. This includes being consulted when devising the process of
consultation per se and having the opportunity to share and use or develop their own
protocols on consultation. They should exert sufficient control over the process and should
not feel compelled to get involved or continue;
(e) Indigenous peoples should have the freedom to set their expectations and to
contribute to defining methods, timelines, locations and evaluations.
21. Any free, prior and informed consent process must also be prior to any other
decisions allowing a proposal to proceed and should begin as early as possible in the
formulation of the proposal. The Inter-American Court of Human Rights in Saramaka
People v. Suriname (2007) (the Saramaka case) uses the terms “early stage” and “early
notice”. To that end, the “prior” component of free, prior and informed consent should
(a) Involving indigenous peoples as early as possible. Consultation and
participation should be undertaken at the conceptualization and design phases and not
17 See ILO Committee of Experts on the Application of Conventions and Recommendations, general
observation on indigenous and tribal peoples (observation 2010/81).
18 See International Labour Organization, Understanding the Indigenous and Tribal Peoples Convention,
1989 (No. 169): Handbook for ILO Tripartite Constituents (Geneva, 2013), p. 19.
launched at a late stage in a project’s development, when crucial details have already been
(b) Providing the time necessary for indigenous peoples to absorb, understand
and analyse information and to undertake their own decision-making processes (see
A/HRC/18/42, annex, para. 25).
22. Consultation in the free, prior and informed consent context should be “informed”,
(a) The information made available should be both sufficiently quantitative and
qualitative, as well as objective, accurate and clear;
(b) The information should be presented in a manner and form understandable to
indigenous peoples, including translation into a language that they understand.
Consultations should be undertaken using culturally appropriate procedures, which respect
the traditions and forms of organization of the indigenous peoples concerned (see
A/HRC/18/42). The substantive content of the information should include the nature, size,
pace, reversibility and scope of any proposed project or activity (see E/C.19/2005/3); the
reasons for the project; the areas to be affected; social, environmental and cultural impact
assessments; the kind of compensation or benefit-sharing schemes involved; and all the
potential harm and impacts that could result from the proposed activity;19
(c) Adequate resources and capacity should be provided for indigenous peoples’
representative institutions or decisions-making mechanisms, while not compromising their
independence. Such institutions or decision-making processes must be enabled to meet
technical challenges — including, if necessary, through capacity-building initiatives to
inform the indigenous peoples of their rights in general — prior or parallel to the process of
consultation. For example, the Australian Referendum Council recommended that the
Government of Australia consider proposals designed by Aboriginal and Torres Strait
Islander peoples during 13 regional dialogues and a national indigenous constitutional
convention in May 2017 calling for a new First Nations representative public institution
called “Voice to Parliament” based on articles 18 and 19 of the Declaration.20 In two cases
(Finmark Estate Agency v. Nesseby regional society (the Unjárga case) and Norway v.
Jovsset Ánte Iversen Sara (the Sara case)), the Supreme Court of Norway referred to the
consent and participation of the Sami Parliament as support for its decision that national
legislation was in accordance with international law on indigenous rights, including the
Declaration, the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights and the ILO Indigenous and Tribal
Peoples Convention, 1989 (No. 169).21 However, in the Sara case, the Court referred to the
participation of the Sami Parliament as support for its decision, although consent was not
achieved. It is a concern if participation is used as support for State decisions where consent
is not achieved, as this could discourage indigenous peoples from participating in decision-
23. Failure to engage with legitimate representatives of indigenous peoples can
undermine any consent received. In the Declaration it is clear that States and third parties
should consult and cooperate with indigenous peoples “through their own representative
institutions” (arts. 19 and 32) and “in accordance with their own procedures” (art. 18). All
parties should ensure representation from women, children, 22 youth and persons with
disabilities, and efforts should be made to understand the specific impacts on them (see
19 United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest
Degradation in Developing Countries, Guidelines on Free, Prior and Informed Consent (Geneva,
20 See www.referendumcouncil.org.au/final-report.
21 See www.domstol.no/en/Enkelt-domstol/-norges-hoyesterett/rulings/rulings-2018/the-scope-of-
22 The Committee on the Rights of the Child in its general comment No. 11 (2009) on indigenous
children and their rights under the Convention notes that the right of the child to be heard includes the
right to representation.
A/HRC/18/42). Yet, identifying the legitimate representatives of indigenous peoples can be
challenging. States should be mindful of situations where indigenous peoples’ decision-
making institutions have been undermined by colonialism and where communities have
been dispersed, dispossessed of land or relocated, including to urban areas. These situations
may require State assistance to rebuild indigenous peoples’ capacity to represent
themselves appropriately. It is important for States or third parties to ensure that institutions
supporting indigenous peoples and claiming to represent them are so mandated.
24. As former Special Rapporteur James Anaya has stated, consent is not a freestanding
device of legitimation. The principle of free, prior and informed consent, arising as it does
within a human rights framework, does not contemplate consent as simply a “yes” to a
predetermined decision (A/HRC/24/41, para. 30). This means that consent can only be
received for proposals when it fulfils the three threshold criteria of having been free, prior
and informed, and is then evidenced by an explicit statement of agreement.
25. Consent is a key principle that enables indigenous peoples to exercise their right to
self-determination, including development that involves control over or otherwise affects
their lands, resources and territories. With such an understanding, indigenous peoples are
considered to engage with and are entitled to give or withhold consent to proposals that
26. Indigenous peoples’ decision to give or withhold consent is a result of their
assessment of their best interests and that of future generations with regard to a proposal.
When they give their consent it provides an important social licence and a favourable
environment to any actor operating on and around their lands, territories and resources, as
many studies and research have shown, including by the private sector. 23 Indigenous
peoples may withhold their consent in a number of situations and for various purposes or
(a) They may withhold consent following an assessment and conclusion that the
proposal is not in their best interests. Withholding consent is expected to convince the other
party not to take the risk of proceeding with the proposal. Arguments of whether indigenous
peoples have a “veto” in this regard appear to largely detract from and undermine the
legitimacy of the free, prior and informed consent concept;
(b) Indigenous peoples may withhold consent temporarily because of
deficiencies in the process. Such deficiencies often consist of non-compliance with the
required standards for the consent to be free, prior and informed. Indigenous peoples may
seek adjustment or amendment to the proposal, including by suggesting an alternative
(c) Withholding consent can also communicate legitimate distrust in the
consultation process or national initiative. This is generally the situation in countries where
there is insufficient recognition of indigenous peoples or protection of their rights to lands,
resources and territories. Cases of indigenous peoples being harassed, arrested and even
being killed for resisting “trap-like” consultation offers are numerous.
27. Withholding consent can be a positive mechanism for democratic and inclusive
governance. It can be of critical importance to the ultimate success of a proposal or project.
Indigenous peoples’ consent should be given “in accordance with international human
rights standards” (Declaration, art. 34) and particular attention should be paid “to the rights
and special needs of indigenous elders, women, youth, children and persons with
disabilities”, including in the elimination of all forms of discrimination and violence against
indigenous children and women (ibid., art. 22).
23 Cathal M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative
Role of Free Prior and Informed Consent, Routledge Research in Human Rights Law (London and
New York, Routledge, 2014), chap. 5.
28. In any event, a number of countries and stakeholders have endorsed a policy not to
proceed if indigenous peoples withhold their consent. The United Nations Global Compact,
in its business reference guide on the Declaration,24 advises its members not to proceed with
a project after the withholding of consent by indigenous peoples. A State or stakeholder that
decides to proceed after consent is withheld by indigenous peoples moves into a legal grey
area and exposes itself to judicial review and other types of recourse mechanisms,
potentially including international, regional and national tribunals, and by indigenous
peoples’ own institutions (see paras. 38–41 below);
29. Particular caution should be exercised regarding indigenous peoples in voluntary
isolation or of recent contact, including the non-imposition of contact and the obligation to
protect their territories, natural resources and lives. In the case of indigenous peoples in
voluntary isolation, the decision and expression not to be in contact or not to have constant
interaction with other societies and the Government can be an expression of non-consent.
States should respect their will and are obliged to protect their lives through the protection
of their territories and natural resources.25
30. If indigenous peoples choose to give their consent to a project, consent should be
consistent with indigenous peoples’ own laws, customs, protocols and best practices,
including representation by legal counsel whenever possible and as required by law. In
many, if not all, instances, consent must be recorded in a written instrument, negotiated by
the parties, and signed affirmatively by a legitimate authority or leader of the relevant
indigenous peoples, which may include more than one group (see paras. 42–45 below). Full
understanding by indigenous peoples must be ensured and additional measures should be
taken by the State in cases involving indigenous peoples of recent contact.
E. Operationalization of free, prior and informed consent
1. When is free, prior and informed consent required?
31. The Declaration contains five specific references to free, prior and informed consent
(see arts. 10, 11, 19, 29 and 32), providing a non-exhaustive list of situations when such
consent should apply. Free, prior and informed consent may be required for adoption and
implementation of legislative or administrative measures 26 and any project affecting
indigenous peoples’ lands, territories and other resources, within the context referred to in
the paragraphs below (arts. 19 and 32). It is also required in instances of relocation of
indigenous peoples from their lands or territories and storage of hazardous materials on
their lands or territories (arts. 10 and 29).27
32. The role of free, prior and informed consent in the realm of natural resource
development is set out in article 32 of the Declaration. This provision is particularly
important given the well-known risks and impacts of extractive industries on indigenous
peoples (see A/HRC/24/41, A/HRC/21/52 and A/HRC/21/55). As stated by James Anaya,
the general rule in the case of extractive industries’ projects within the territories of
indigenous peoples is that the free, prior and informed consent of indigenous peoples is
required. Indigenous peoples’ consent may also be required when extractive activities
24 See www.unglobalcompact.org/library/541.
25 See http://periodicos.unb.br/index.php/ling/article/view/26661 (in Portuguese).
26 Many indigenous peoples suggest that social development programmes often have an impact on their
customary laws, traditions and customs, including cultural, intellectual, religious and spiritual
property for which free, prior and informed consent should be obtained (cf., Declaration, art. 11, para.
2; see also http://iphrdefenders.net/statement-asia-indigenous-peoples-pact-asia-indigenous-peoples-
27 Article 29 of the Declaration is the basis for the revision of the International Code of Conduct on the
Distribution and Use of Pesticides and review of the Rotterdam Convention on the Prior Informed
Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade by the
Special Rapporteur on the implications for human rights of the environmentally sound management
and disposal of hazardous substances and wastes.
otherwise affect indigenous peoples (outside their territories), depending upon the nature of
and potential impacts of the proposed activities on their rights (see A/HRC/24/41).
2. The proportionality principle
33. In several articles, the Declaration calls for free, prior and informed consent
regarding matters, projects or issues that “affect” indigenous peoples. This concept is not
limited to matters that affect indigenous peoples exclusively. To the contrary, matters of
broad societal application “may affect indigenous peoples in ways not felt by others in
society” (see A/HRC/12/34, para. 43). Measures and projects considered to “affect”
indigenous peoples to the extent that free, prior and informed consent will be required
under articles 19 and 32 include matters of “fundamental importance to their rights,
survival, dignity and well-being” (A/HRC/21/55, para. 27). Relevant factors in this
assessment include: the perspective and priorities of the indigenous peoples concerned; the
nature of the matter or proposed activity and its potential impact on the indigenous peoples
concerned, taking into account, inter alia, the cumulative effects of previous encroachments
or activities 28 and historical inequities faced by the indigenous peoples concerned (see
A/HCR/18/42 and A/HRC/21/55).
34. The perspective of the indigenous peoples concerned on the potential broader impact
of a decision is the starting point for assessing whether a legislative or administrative
measure or any project affecting their lands or territories and other resources affects them
(see A/HCR/18/42). Indigenous peoples should have a major role in establishing whether
the measure or project affects them at all and, if it does, the extent of the impact.
Indigenous peoples may highlight possible harms that may not be clear to the State or
project proponent, and may suggest mitigation measures to address those harms.
35. As to impact, if a measure or project is likely to have a significant, direct impact on
indigenous peoples’ lives or land, territories or resources then consent is required (see
A/HRC/12/34, para. 47). It has been referred to as a “sliding scale approach” to the
question of indigenous participatory rights, which means that the level of effective
participation that must be guaranteed to indigenous peoples is essentially a function of the
nature and content of the rights and activities in question.29 This view is supported by the
Human Rights Committee,30 which uses the language “substantive negative impact”, and
the Committee on Economic, Social and Cultural Rights. Both have linked the issue of free,
prior and informed consent to the nature and the effects that a proposed initiative will have
on indigenous peoples’ rights in the respective human rights treaty: an approach in line with
the jurisprudence of the Inter-American Court of Human Rights 31 and the African
Commission on Human and Peoples’ Rights. 32 Assessment of the impact requires
consideration of the nature, scale, duration and long-term impact of the action, such as
damage to community lands or harm to the community’s cultural integrity.
36. Other projects requiring free, prior and informed consent and tending to have
“adverse impacts” as defined by International Finance Corporation Performance Standard
7, include projects located on lands, or natural resources on lands, subject to traditional
ownership or under customary use; and projects significantly impacting on critical cultural
heritage of indigenous peoples or using cultural heritage, including knowledge, innovation
or practices for commercial purposes.33
37. A number of domestic court decisions support these principles. An expansive view
of consent was recently taken by the Supreme Court of Canada in the case of Tsilhqot’in
Nation v. British Columbia (2014). The Court decided that once the right of an indigenous
28 See Saramaka case.
29 Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative
Perspective, International Studies in Human Rights, vol. 102 (Brill/Nijhoff, 2009), p. 113.
30 See Länsman et al. v. Finland (CCPR/C/52/D/511/1992) and Poma Poma v. Peru.
31 See Saramaka case.
32 See Centre for Minority Rights Development v. Kenya, 276/03 (the Endorois case).
33 See Performance Standard 7 (2012) on Indigenous Peoples; and Doyle, Indigenous Peoples, Title to
Territory, Rights and Resources, chap. 5.
community to control a portion of land has been recognized, no use of that land will be
permitted without the consent of that community.34 The Constitutional Court of Colombia
recognizes three situations in which consent is mandatory: displacement of indigenous
peoples; the storage of toxic waste; and when the existence of the group is put at risk.35 The
Constitutional Court of the Plurinational State of Bolivia has recognized similar situations
as warranting consent, as established by the Inter-American Court of Human Rights.36 The
need for consent in the case of large-scale development projects on indigenous lands was
generally agreed by the Constitutional Court of Colombia.37 The Supreme Court of Belize
has made express references to free, prior and informed consent, including to article 32 of
the Declaration, ultimately finding that the failure to obtain consent prior to granting
concessions and permissions was unlawful.38
38. Certain rights, such as the right to be free from torture, are never subject to
limitation by States. Even for those rights that may, theoretically, be limited by States in
accordance with article 46, paragraph 2, of the Declaration, such limitation must be
necessary and proportionate for the purpose of achieving the human rights objectives of the
society as a whole and be non-discriminatory. As James Anaya has said, “no valid public
objective is found in mere commercial purpose, private gains or revenue-raising
objective”.39 Given the nature of the impact of large-scale development projects on the
rights of indigenous peoples, it will often be difficult to justify such projects in view of
39. The burden of proof is on the State to demonstrate that the decision to pursue the
activity following failure to obtain consent meets these exceptional criteria. In Tsilhqot’in
Nation, the Supreme Court of Canada held that consent may only be overridden in strict
circumstances when the government can demonstrate that: it has discharged its
responsibilities in respect of the rights of the peoples concerned, including a procedural
duty to consult; the action is aimed at pursuing an objective that is compelling and
substantial from the perspective of the broader public and the indigenous community; the
action will not substantially deprive future generations of an aboriginal group of the
benefits of their land; and the principle of necessity and proportionality applies.40
40. Any decision to limit indigenous peoples’ rights within the exceptional
circumstances of article 46 must be accompanied not only by necessary safeguards,
including redressing balance-of-power issues, impact assessments, mitigation measures,
compensation and benefit sharing, but also by remedial measures taking into account any
rights violations. The need for benefit sharing was also referred to in the Saramaka case,
and in the Endorois case the African Commission on Human and Peoples’ Rights stated
that benefit sharing may be understood as a form of reasonable equitable compensation
resulting from the exploitation of traditionally owned lands and of those natural resources
necessary for the survival of the community. Of course, in some cases, including injuries to
human life, sacred sites and cultural practices, it may be difficult or impossible to put a
financial valuation on rights violations. Any tensions in this regard arising within
indigenous communities in the process of seeking free, prior and informed consent should
be resolved by the indigenous peoples themselves, in accordance with their own laws,
traditions and customs, through their own representative institutions.
34 For more Canadian Supreme Court cases see Mauro Barelli, “Free, Prior and Informed Consent in the
United Nations Declaration on the Rights of Indigenous Peoples”, in The UN Declaration on the
Rights of Indigenous Peoples: A Commentary, Jessie Hohmann and Marc Weller, eds. (Oxford,
Oxford University Press, 2018). 35 Case T-129 of 3 March 2011.
36 Case No. 2003/2010 R of 25 October 2010 and Barelli, “Free, Prior and Informed Consent”.
37 Cases T-769/09 of 29 October 2009, T-129 of 11 March 2011 and T-376/12 of 18 May 2012; see also
Barelli, “Free, Prior and Informed Consent”.
38 See Sarstoon Temash Institute for Indigenous Management v. Belize, 3 April 2014.
39 S. James Anaya and Sergio Puig, “Mitigating State sovereignty: the duty to consult with indigenous
peoples”, University of Toronto Law Journal, vol. 67, No. 4 (Fall 2017).
40 See Endorois case.
41. Given that the pursuit of an activity or measure that affects indigenous peoples may
result in a violation of their human rights, there should be a possibility for judicial or
administrative review in the event that indigenous peoples wish to challenge that decision.41
Such judicial or administrative review should be based on indigenous peoples’ rights in the
Declaration, including their rights to self-determination and effective remedies,42 and their
rights under human rights treaty law, regional and domestic law, and indigenous peoples’
own laws, customs and protocols.
3. Documenting, monitoring, reviewing and recourse mechanism for free, prior and
42. Free, prior and informed consent should be documented, capturing the steps for
accomplishing such consent and the essence of the agreement reached by the concerned
parties, in accordance with indigenous peoples’ customary norms and traditional methods
of decision-making, including diverging opinions and conditional views. Guidelines or
models for seeking free, prior and informed consent that are developed by either States or
private actors should not prevail over indigenous peoples’ own community protocols or
traditional practices of capturing or recording agreements.
43. Forms of expressing consent may include, for example, treaties, agreements and
contracts. Often terms are commemorated in a memorandum of agreement or
understanding, or other document that is satisfactory to the indigenous peoples. Translation
services must be provided where needed. Indigenous peoples must have the opportunity,
moreover, to consent to each relevant aspect of a proposal or project. A generalized or
limited statement of consent that, for example, does not expressly acknowledge different
phases of development or the entire scope or impact of the project will not be considered to
meet the standard for consent. Consent must be “ongoing” with express opportunities and
requirements for review and renewal set by the parties.
44. Agreements on consent should include detailed statements of the project, its duration
and the potential impacts on the indigenous peoples, including their lands, livelihoods,
resources, cultures and environments (see A/HRC/24/41, para. 73); provisions for
mitigation, assessment, and reimbursement for any damages to those resources; statements
of indemnification of indigenous peoples for injuries caused to others on their lands;
methods and venues for dispute resolution; detailed benefit-sharing arrangements
(including investment, revenue sharing, employment and infrastructure); and a timetable of
deliverables, including opportunities to negotiate continuing terms and licences. As a matter
of best practice, any form of consent should include a detailed description of the process of
notice, consultation and participation that preceded the consent.
45. As a dynamic process, the implementation of free, prior and informed consent
should also be monitored and evaluated regularly. Such agreements should “include
mechanisms for participatory monitoring” (ibid.). The ILO Committee of Experts on the
Application of Conventions and Recommendations underlines the need for “periodic
evaluation of the operation of the consultation mechanisms, with the participation of the
peoples concerned” to continue to improve their effectiveness.43 The implementation of
free, prior and informed consent should also include accessible recourse mechanisms for
disputes and grievances, devised with the effective participation of indigenous peoples,
including judicial review.
41 See statement of James Anaya at conference on “The role of the Ombudsman in Latin America: the
right to prior consultation with indigenous peoples”, Lima, 25 April 2013. Available from
del-derecho-internacional (in Spanish).
42 See Poma Poma v. Peru.
43 ILO observation 2010/81, p. 7.
IV. Review of free, prior and informed consent practices
46. The United Nations Declaration on the Rights of Indigenous Peoples and the ILO
Indigenous and Tribal Peoples Convention, 1989 (No. 169) are complementary and
mutually supportive, and both are cited by judicial and quasi-judicial bodies. As
emphasized by the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-
Corpuz, following a visit to Guatemala, “compliance with the obligations of ILO
Convention 169 is not limited to the regulation of the right to consultation, but requires the
application of the full range of rights affirmed in that instrument”.44
47. The Declaration, including its free, prior and informed consent requirements, is
founded on the right to self-determination, which was not necessarily at the heart of the
ILO Convention when it was drafted in 1971. The travaux preparatoires of that Convention
appear to reveal that this instrument did not specifically address the right to self-
determination of indigenous peoples. As a result, the free, prior and informed consent
requirement under the Declaration goes beyond the consultation requirement of the ILO
Convention, at least as interpreted in the past by some States and others, such as in Latin
America, where the ILO Convention is most widely ratified. 45 Yet, while the ILO
Convention contains different wording from “free, prior and informed consent”, elements
of consent requirements are present46 that would not preclude a substantive free, prior and
informed consent-driven approach. Noting that “the protection of human rights evolves”,47
the Human Rights Committee has stated that the International Covenant on Civil and
Political Rights should be interpreted as a living instrument, with the rights protected under
it applied in context and in the light of present-day conditions. A similar approach applied
to the ILO Convention could broaden an interpretation that some may regard as overly
48. With regard to consent, Indigenous and Tribal Peoples Convention, 1989 (No. 169)
cannot be interpreted in isolation from the Declaration and other international instruments.
As emphasized by ILO, differences in the legal status of the Declaration and the ILO
Convention “should play no role in the practical work of the ILO and other international
agencies to promote the human rights of indigenous peoples ... The provisions of
Convention No. 169 and the Declaration are compatible and mutually reinforcing”. 48
Special Rapporteur on the rights of indigenous peoples Victoria Tauli-Corpuz also affirms
that the ILO Convention is not the only source of legal obligation with respect to
consultation and free, prior and informed consent (see A/HRC/33/42/Add.1, para. 98 (b)).
State obligations to consult indigenous peoples also derive from universal and regional
human rights instruments of general application and the interpretative jurisprudence by
supervisory mechanisms of these instruments. The interpretation of the ILO Convention
could be aligned with the emerging consensus of human rights bodies on free, prior and
informed consent, as imposing both procedural and substantive requirements, including the
emerging consensus in international law that large-scale development projects affecting
indigenous peoples will often trigger free, prior and informed consent requirements. The
Special Rapporteur’s view is reflected in article 35 of the ILO Convention, which states
that: “the application of the provisions of this Convention shall not adversely affect rights
and benefits of the peoples concerned pursuant to other Conventions and
Recommendations, international instruments, treaties, or national laws, awards, custom or
44 See www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23068&LangID=E.
45 Ibid; see also “Additional comments on Honduras, 9 June 2017” available at
observations.pdf (in Spanish).
46 See S.J. Rombouts, “The evolution of indigenous peoples’ consultation rights under the ILO and UN
regimes”, Stanford Journal of International Law, vol. 53, No. 2 (Spring 2017). 47 See Judge v. Canada (CCPR/C/78/D/829/1998), para. 10.7.
48 “ILO standards and the UN Declaration on the Rights of Indigenous Peoples: Information note for
ILO staff and partners”, available from
49. In the private sector, free, prior and informed consent is developing into an
international standard for companies operating on indigenous lands. In November 2014,
First Peoples Worldwide published the “Indigenous Rights Risk Report”,49 finding that 89
per cent of the projects assessed had a high or medium risk exposure “to indigenous
community opposition or violations of indigenous peoples’ rights” and that Governments
that disregarded their commitments to the Declaration, often with the justification that they
were obstacles to development, “actually propagate volatile business environments that
threaten the viability of investments in their countries”. Many entities such as extractive
industries are aware of these risks inherent in not soliciting free, prior and informed consent
and have endeavoured to create their own free, prior and informed consent protocols.
50. There are numerous publications outlining the business case for free, prior and
informed consent50 and an increase in policy commitments to free, prior and informed
consent by companies between 2012 and 2015: a report from Oxfam concluded that,
“extractive industry companies are increasingly seeing the relevance of free, prior and
informed consent in their operations”.51 A guide for businesses by the United Nations
Global Compact equates consent with “a formal, documented social licence to operate”,
noting that “indigenous peoples have the right to give or withhold consent, and in some
circumstances, may revoke their consent previously given”.52 Thus, for example, between
1975 and 2015 First Nations entered into formal “impact benefit agreements” in respect of
198 mining projects in Canada; however, sometimes these are agreed upon in the
framework of an unwanted project to which First Nations believe they cannot object.
51. At least one third of the Sustainable Development Goal targets are linked to the
rights in the Declaration53 and a number of them have been connected to free, prior and
informed consent.54 In its Voluntary National Report 2017, Malaysia listed under Goal 15
(life on land) the aim to include indigenous and local communities in the management of
natural resources and recognition of their right to give or withhold consent to proposed
projects that may affect their lands. Indigenous peoples demand the recognition of free,
prior and informed consent in the implementation of the Sustainable Development Goals to
address their distinct circumstances with a view to ensuring that “no one is left behind”.
52. Article 8 (j) of the Convention on Biological Diversity, which refers to access to
traditional knowledge being subject to the approval and involvement of the holders of
traditional knowledge, has been consistently interpreted as “prior and informed consent”,
and “free, prior and informed consent”, as substantiated in the Akwé: Kon Voluntary
Guidelines. The Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from Their Utilization to the Convention on
Biological Diversity establishes that access to traditional knowledge associated with genetic
resources is based on “prior informed consent” or “approval and involvement” and on an
equitable sharing of benefits. The Green Climate Fund has developed its own interpretation
of free, prior and informed consent based on the Declaration. Article 29 of the Declaration
is also the basis for the revision of the International Code of Conduct on the Distribution
and Use of Pesticides as endorsed by the International Indian Treaty Council, the
Permanent Forum on Indigenous Issues and other bodies.
53. International Finance Corporation Performance Standard 7 on Indigenous Peoples
(2012) conditions funding of the private sector on documenting consent in certain
circumstances. The receipt of free, prior and informed consent is also one of the nine
fundamental principles guiding engagement of the International Fund for Agricultural
49 Available at https://mahb.stanford.edu/wp-content/uploads/2014/12/Indigenous-Rights-Risk-
50 E.g., Implementing a Corporate Free, Prior, and Informed Consent Policy: Benefits and Challenges
(Foley-Hoag LLP, July 2010); and Boreal Leadership Council, Free, Prior and Informed Consent in
Canada (September 2012).
51 See www.oxfam.org/en/pressroom/pressreleases/2015-07-23/global-mining-companies-improve-
52 See www.unglobalcompact.org/library/541, p. 28.
53 See http://nav.indigenousnavigator.com/images/Documents/Tools/Navigator_UNDRIP-SDGs.pdf.
54 Goals 3, 6, 8, 9, 11 and 15.
Development with indigenous peoples. The new Environment and Social Standard 7,
adopted by the World Bank in August 2016, is more aligned with a human rights-based
approach to consultation than its predecessor (Operational Policy 4.10), and calls for
borrowers to carry out consultations with indigenous peoples’ representative bodies and
organizations. This links consultation to the grass-roots indigenous organizations whose
lands and resources might be adversely affected. 55 The 2013 edition of the Equator
Principles, a risk management framework adopted by 80 financial institutions, expressly
requires that projects with adverse impacts on indigenous peoples will require their free,
prior and informed consent.
54. However, despite the recognition of free, prior and informed consent by financial
institutions and the private sector, the experience of indigenous peoples shows that
problems remain with its implementation. The process of seeking free, prior and informed
consent is, at times, viewed as merely procedural in nature, rather than focused on human
rights. It is sometimes seen as a goodwill gesture to indigenous peoples and can lead to
serving third party interests rather than protecting the rights-holders interests. A debate
around the first project of the Green Climate Fund in Peru in 2015, “PROFONANPE”, for
example, suggests a lack of understanding about the operative implications of free, prior
and informed consent and issues related to full and effective participation and consultation
of indigenous peoples. 56 Questions also remain on the application of free, prior and
informed consent as now recognized in World Bank Performance Standard 7; in no instance
should this policy lower the level of protection achieved for indigenous peoples.57
55. Some concerns have been raised about the many guidelines on free, prior and
informed consent, including that the language used is often imprecise and sometimes
introduces ambiguities, for example with respect to the point at which impact assessments
are required or when consultation should begin. Sometimes these guidelines do not address
the issue of indigenous peoples wishing to define their own consent process and to control
aspects of the impact assessments. In addition, there is sometimes ambiguity in the event
that consent is not forthcoming.
56. To ensure that financial institutions and the private sector can better align their
policies with the rights protected in the Declaration, there is a need to develop and adopt
stringent social and environmental safeguards, an indigenous peoples’ policy based on
international human rights standards and the Declaration, and effective oversight and
compliance mechanisms and to ensure that indigenous peoples are involved throughout the
process. As States are the duty bearers in implementing indigenous peoples’ rights, their
human rights obligations cannot be delegated to a private company or other entity (see
A/HRC/12/34) and they remain responsible for any inadequacy in the process.
57. Indigenous peoples are also establishing their own protocols for free, prior and
informed consent, particularly in North America and Latin America, including in Belize,
Bolivia (the Plurinational State of), Brazil, Canada, Colombia, Guatemala, Honduras,
Paraguay, Suriname and the United States of America. These protocols are an important
tool in preparing indigenous peoples, States and other parties to engage in a consultation or
free, prior and informed consent process, setting out how, when, why and whom to consult.
The establishment of these protocols is an instrument of empowerment for indigenous
peoples, closely linked to their rights to self-determination, participation and the
development and maintenance of their own decision-making institutions (see
A/HRC/EMRIP/2010/2). The right to be consulted “through their own representative
institutions”, mentioned in several articles relating to free, prior and informed consent,
suggests the seriousness with which they should be recognized. In some cases, these
55 Other international and regional organizations that have incorporated free, prior and informed consent
into their policies and programmes on indigenous peoples include the United Nations Development
Programme, the Food and Agricultural Organization of the United Nations, the Inter-American
Development Bank and the European Bank for Reconstruction and Development.
56 See www.forestpeoples.org/en/topics/un-framework-convention-climate-change-
57 See http://indianlaw.org/mdb/world-bank-approves-indigenous-peoples-policy.
protocols have been recognized by the State (for example, Brazil)58 and in others by the
World Bank (Belize). In January 2018, a Federal Court in the state of Amazonas in Brazil
demanded compliance with free, prior and informed consent for the Waimiri Atroari people
regarding any law or development plan affecting them and regarding military activities on
58. Many States have started to adopt legislation, practices and guidelines on consulting
and obtaining consent. In the United States, several federal statutes require consultation, for
example with respect to indigenous peoples’ sacred sites, cultural patrimony and human
remains. In some instances, federal agencies have adopted the Declaration60 or otherwise
entered into consensual agreements with indigenous peoples regarding these matters.61 In
Latin America, States have either enacted or are discussing enacting laws on consultation
with indigenous peoples. A general consultation mechanism aimed at obtaining free, prior
and informed consent has recently been established by Costa Rica.62 Assuming that the
necessary measures are taken to ensure its implementation, it can hopefully be used as a
good practice for other States. There are also laws, practices or guidelines in Argentina,
Canada, Chile, Ecuador, Finland, Guatemala, Mexico, Peru, the Philippines, the United
States and Venezuela (the Bolivarian Republic of), among others. Some States are in the
process of developing protocols on free, prior and informed consent, including the
Democratic Republic of the Congo, Chile, Honduras, Paraguay and Suriname. The
development of some of these laws has not been without criticism (see
E/CN.4/2004/80/Add.2, A/HRC/27/52/Add.3 and A/HRC/33/42/Add.2). The Expert
Mechanism has highlighted some of the requirements that such legislation should contain to
ensure free, prior and informed consent in an advisory note of 2018, including adequate
resources, equality and a mechanism to monitor agreements. 63 During its technical
cooperation mission to Mexico City, the Expert Mechanism welcomed the inclusion of free,
prior and informed consent in the City’s Constitution, adopted in January 2017.
59. In Colombia, there is no law regulating free, prior and informed consent. However,
between 1991 and 2012, around 156 consultations have taken place64 pursuant to
obligations laid down by the Constitutional Court (see para. 37 above). Of those, 3 out of
10 cases have been opposed by indigenous peoples,65 and 95 per cent of projects and
development activities have reached favourable outcomes.66 A recent consultation process
in Colombia, which culminated in a decree for the protection of isolated people, appears to
have been a good practice, having involved dialogue with indigenous organizations and
communities near isolated groups.67 South Africa does not have a mechanism, but
consultation and consent procedures have been successfully pursued through the Nagoya
Protocol. In the Russian Federation, on a subnational level indigenous peoples are entitled
to initiate and participate in “ethnological impact assessments” prior to decision-making on
planned economic and other activity, and to access the results and recommendations;
however, only international companies comply with this procedure due to the lack of
regulation and legal clarity on who can represent indigenous peoples in negotiations.68
58 The state and federal government are using the Wajãpi Consultation Consent Protocol in the case of
the expansion of a non-indigenous settlement neighbouring the Wajãpi indigenous land in the state of
59 See www.mpf.mp.br/am/sala-de-imprensa/docs/decisao-liminar-acp-waimiri-atroari-ditadura (in
60 See www.achp.gov/UNdeclaration.html.
61 See Robert J. Miller, “Consultation or consent: the United States duty to confer with American Indian
governments”, North Dakota Law Review, vol. 91 (2015).
62 See www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1
NRTC&nValor1=1&nValor2=77482&nValor3=97132&strTipM=TC (in Spanish).
63 Available from www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/Session11.aspx.
64 See Garavito and Díaz submission.
65 See Gerber submission.
66 See Colombia national human rights institution submission.
67 See http://opiac.org.co/los-pueblos-indigenas-de-la-amazonia-colombiana-celebramos-la-firma-del-
decreto-de-proteccion-para-pueblos-indigenas-aislados/ (in Spanish).
68 See Novikova submission (in Russian).
60. There are concerns, however, about some of the legislation and practices on free,
prior and informed consent emerging around the world. These include that some
consultation laws have been elaborated, quite ironically and problematically, without
consultation with indigenous peoples. Additional concerns include a narrow focus on
obligations under Indigenous and Tribal Peoples Convention, 1989 (No. 169) and not on
the United Nations Declaration or regional or international human rights obligations; a
focus on the procedural steps of a consultation process, without ensuring the genuine
participation and protection of the rights of affected indigenous peoples; and a failure to
address the structural concerns that violate the rights of indigenous peoples. Often, the right
to consultation has not been translated into a law guaranteeing its enforcement, and the
requirements of what constitutes consent are not clarified.
61. Indigenous peoples also raise concerns about “consultation fatigue”; “manufactured”
consent; limits put on consultation; a lack of a common understanding of international
standards relating to free, prior and informed consent; an increase in encroachments of
extractive industries; and a lack of structural change to ensure free, prior and informed
consent at the institutional level. These problems not only harm indigenous peoples, whose
rights are often disregarded in development plans, but also lead to work-stoppages, protests,
litigation and other problems with negative financial and political implications for States
and industry alike.69 For all of these reasons, the need for effective mechanisms for the
operationalization of free, prior and informed consent are becoming urgent. The absence of
rights-based regulatory mechanisms defining how to carry out a consultation encourages
contradictory interpretations of which measures and projects need to be preceded by
consultation processes and which require consent.
62. National human rights institutions play an important role in contributing towards the
implementation of free, prior and informed consent. As bodies acting independently from
the Government, some with an expertise in the area of indigenous peoples, they can and do
fulfil many roles in the consent context. For example, in Argentina, the national human
rights institution intervened in a project by ArSat Co. Telecommunications, where it had
several roles, including as general coordinator of the whole process, facilitator and
guarantor controlling compliance with the legal framework. Its engagement included an
open consultation process that overcame three years of roadblocks. In the Bolivarian
Republic of Venezuela, the national human rights institution promotes the application of
prior consultation mechanisms, ensures that the right to consultation is incorporated in
legislation and carries out activities promoting the right to prior consultation.
69 In North America, failed consultations regarding development using the traditional lands and
resources of indigenous peoples have led to years of costly litigation, protests and delay, even if the
projects are ultimately approved. See, e.g., Standing Rock Sioux Tribe v. United States Army Corps of
Engineers, 255 F.Supp.3d 101 (D.D.C. 2017); and Ktunaxa Nation v. British Columbia, 2 S.C.R. 386
(2017). In the extractive industries context, some sources indicate that work stoppages can cost
upwards of $1 million per day.
Expert Mechanism advice No. 11 on indigenous peoples and free, prior and informed consent
1. The United Nations is an important venue for facilitating free, prior and informed
consent in negotiations with States. To the extent that United Nations system organizations,
including the United Nations Development Programme, the United Nations Educational,
Scientific and Cultural Organization, the World Bank, the World Health Organization and
the World Intellectual Property Organization (WIPO), encounter indigenous peoples’
issues, they are advised that the human rights expressed in the Declaration apply broadly in
all of these settings. In particular, the WIPO Intergovernmental Committee on Intellectual
Property and Genetic Resources is currently in the process of negotiating several
multilateral instruments on traditional knowledge, genetic resources, traditional cultural
expressions and other forms of intellectual and cultural property. In the negotiation and
drafting of these instruments, WIPO and Member States should reference the Declaration,
and especially the norm of free, prior and informed consent, with respect to the ownership,
use and protection of indigenous peoples’ intellectual property and other resources.
2. States should observe a human rights approach to free, prior and informed consent,
among others by promoting capacity-building for State authorities and officials, including
judges and lawmakers. Because local and subnational level authorities are in many cases
closer and more sensitive to indigenous issues, local officials and company employees
should receive better instructions on free, prior and informed consent.
3. States should establish an appropriate regulatory mechanism or mechanisms at the
national level, preferably at the constitutional or legislative level, to regulate consultations
in situations where free, prior and informed consent is required or is sought as the objective
of the consultation. It should include references to the Declaration. The establishment of
such a mechanism itself necessitates a process of consultation with indigenous peoples in a
context of trust and good faith, and should be accompanied by the development of adequate
implementing institutions, employing well-trained officials and ensuring adequate funding.
Such a mechanism could also act as an oversight mechanism.
4. States should engage directly with indigenous peoples. When direct negotiations
between indigenous peoples and private enterprises are sought by indigenous peoples
themselves, companies must exercise due diligence to ensure the adequacy of the
consultation procedures. States remain responsible for any inadequacy and should ensure
measures are in place to oversee and evaluate procedures undertaken by business
enterprises, which could include legislation or guidelines requiring the operationalization of
free, prior and informed consent and penalizing corporations for failing to comply with
5. States should establish preconditions for achieving effective free, prior and informed
consent, including building trust, good faith, culturally appropriate methods of negotiation
and recognition and respect for indigenous peoples’ inherent rights. The process should be
formal and carried out with mutual respect.
6. States should ensure that consent is always the objective of consultations, bearing in
mind that in certain cases consent will be required. Consultations should start at the
planning phase (i.e., prior to the State or enterprise committing to undertake a particular
project or adopting a particular measure, such as the licensing of a project) so indigenous
peoples can influence final decisions. The measures to be consulted on should be clear.
Consultations should occur throughout the evolution of the project, entailing “constant
communication between the parties”1 and should not be confused with public hearings for
environment and regulatory statutes.
1 Saramaka case, para. 133.
7. States should ensure that all information, including about the potential impact of the
project or measure, is provided to indigenous peoples and is presented in a manner and
form that is understandable to them, culturally appropriate, in accordance with their
inherent traditions and independent. If necessary, it should also be presented orally and in
8. States should ensure that there is institutional capacity and political will within the
organs of the State to understand the meaning of and process to seek and obtain free, prior
and informed consent, including by respecting existing indigenous protocols.
9. States should ensure that indigenous peoples have the resources and capacity to
effectively engage in consultation processes by supporting the development of their own
institutions, while not compromising the independence of those institutions. States and the
private sector should promote and respect indigenous peoples’ own protocols, as an
essential means of preparing the State, third parties and indigenous peoples to enter into
consultation and cooperation, and for the smooth running of the consultations.
10. States should ensure equality throughout the process and that the issue of the
imbalance of power between the State and indigenous peoples is addressed and mitigated,
for example employing independent facilitators for consultations and establishing funding
mechanisms that allow indigenous peoples to have access to independent technical
assistance and advice.
11. States should engage broadly with all potentially impacted indigenous peoples,
consulting with them through their own representative decision-making institutions, in
which they are encouraged to include women, children, youth and persons with disabilities,
and bearing in mind that the governance structures of some indigenous communities may
be male dominated. During each consultation, efforts should be made to understand the
specific impacts on indigenous women, children, youth and persons with disabilities.
12. States should ensure that the free, prior and informed consent process supports
consensus building within the indigenous peoples’ community, and practices that might
cause division should be avoided, including when indigenous peoples are in situations of
vulnerability like economic duress. Special attention should be given in this regard to
indigenous peoples representing distinct sectors in the community, including dispersed
communities and indigenous peoples no longer in possession of land or who have moved to
13. States should ensure that if indigenous peoples are in voluntary isolation no
activities impacting on their rights should be considered. Where interventions related to
those peoples are necessary to ensure their well-being or are unavoidable the appropriate
United Nations and regional safeguards should be adhered to.
14. Indigenous peoples are encouraged to establish robust representative mechanisms
and laws, customs and protocols for free, prior and informed consent. At the start of a
consultation process indigenous peoples should agree on and make clear how they will
make a collective decision, including the threshold to indicate when there is consent (see
15. States should ensure that indigenous peoples have the opportunity to participate in
impact assessment processes (human rights, environmental, cultural and social), which
should be undertaken prior to the proposal. Such impact assessments should be objective
16. States should prevent measures or projects that may cause significant harm to
indigenous people, including cumulative harm from competing land-use forms.
17. States should consult and cooperate with indigenous peoples to establish procedures
to regulate, verify and monitor the consultation process, to ensure that the State consults
and cooperates to obtain free, prior and informed consent, and if consent is required, that it
18. States should ensure that treaties and other constructive agreements and
arrangements recognizing the jurisdiction or decision-making authority of indigenous
peoples are upheld and enforced.
19. States that have ratified Indigenous and Tribal Peoples Convention, 1989 (No. 169)
should interpret and apply its provisions on consultation and free, prior and informed
consent in accordance with other relevant standards, notably the United Nations
Declaration on the Rights of Indigenous Peoples and emerging jurisprudence, including by
regional human rights mechanisms.
20. States should ensure that, when relevant, indigenous peoples are provided with
redress, which may include restitution, and that indigenous peoples are able to make their
own decision about the form of redress best able to restore and protect their rights. This
could be provided through culturally appropriate redress mechanisms, taking into account
customary laws. States should not limit redress to cash compensation or arbitrarily exclude
the potential for return or restoration of lands. Compensation should as far as possible take
the form of lands and territories.2
21. States should ensure that indigenous peoples who have unwillingly lost possession
of their lands, or whose lands have been confiscated, taken, occupied or damaged without
their free, prior and informed consent, are entitled to restitution or other appropriate redress
(Declaration, art. 28). If direct financial benefits in the form of compensation are agreed
upon for any adverse effects caused by the project, they should accrue to indigenous
peoples irrespective of whether or not they own the land or resources. This may require
amendments to legislation.
22. States should ensure that any consent agreements are in writing and include, inter
alia, provisions on impact mitigation, compensation and an equitable distribution of the
benefits from the project; joint management arrangements; grievance procedures; and a
dispute regulation mechanism with equal capacity of both sides. Access to justice for
claims by indigenous peoples should be guaranteed.
23. States should facilitate and support processes to draw up long-term development
plans in collaboration and cooperation with indigenous peoples, including national action
plans, as committed to by States in the Declaration at the World Conference on Indigenous
2 Committee on the Elimination of Racial Discrimination, general recommendation No. 23.
3 See General Assembly resolution 69/2.