18/42 Final report of the study on indigenous peoples and the right to participate in decision-making - Report of the Expert Mechanism on the Rights of Indigenous Peoples
Document Type: Final Report
Date: 2011 Aug
Session: 18th Regular Session (2011 Sep)
Agenda Item: Item5: Human rights bodies and mechanisms
GE.11-15484
Human Rights Council Eighteenth session Agenda item 5 Human rights bodies and mechanisms
Final report of the study on indigenous peoples and the right to participate in decision-making
Report of the Expert Mechanism on the Rights of Indigenous Peoples
Summary
The present study complements the progress report submitted by the Expert
Mechanism on the Rights of Indigenous Peoples (A/HRC/EMRIP/2010/2) by focusing on
examples of good practices of indigenous peoples’ participation in different levels of
decision-making. It also includes Expert Mechanism advice No. 2 (2011):
indigenous peoples and the right to participate in decision-making. The present study
should be read in conjunction with the progress report.
United Nations A/HRC/18/42
General Assembly
Distr.: General 17 August 2011
Original: English
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Contents
Paragraphs Page
I. Introduction ............................................................................................................... 1–8 1
II. Defining good practices ............................................................................................ 9–15 3
III. Indigenous peoples’ internal decision-making processes and institutions .............. 16–39 5
A. Indigenous decision-making processes and institutions .................................. 17–22 5
B. Indigenous parliaments and organizations....................................................... 23–30 7
C. Indigenous legal systems.................................................................................. 31–35 9
D. Indigenous women in decision-making ........................................................... 36–39 10
IV. Participation in decision-making mechanisms linked to State and relevant
non-State institutions and processes affecting indigenous peoples.......................... 40–80 11
A. Participation in parliamentary processes.......................................................... 40–47 11
B. Direct participation in governance ................................................................... 48–60 13
C. Participation in hybrid systems of governance ................................................ 61-62 16
D. Free, prior and informed consent ..................................................................... 63–69 17
E. Participation in regional and international forums and processes ................... 70–76 18
F. Other examples of good practices .................................................................... 77–81 20
Annex
Expert Mechanism advice No. 2 (2011):
Indigenous peoples and the right to participate in decision-making.................................................. 22
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I. Introduction
1. In its resolution 12/13, the Human Rights Council requested the Expert Mechanism
to carry out a study on indigenous peoples and the right to participate in decision-making,
to present a progress report to the Council at its fifteenth session and a final study at its
eighteenth session.
2. The Expert Mechanism presented its progress report on the study
(A/HRC/EMRIP/2010/2) to the Human Rights Council at its fifteenth session, taking into
account discussions at the Expert Mechanism’s third session, held in July 2010. In that
report, the Expert Mechanism analysed the relevant international human rights framework,
indigenous peoples’ internal decision-making processes and institutions and indigenous
peoples’ participation in decision-making mechanisms linked to State and non-State
institutions and processes affecting indigenous peoples.
3. In its resolution 15/7, the Council welcomed the successful completion by the
Expert Mechanism of its progress report, encouraged it to finalize the study in accordance
with Council resolution 12/13, and requested it to give examples of good practices at
different levels of decision-making.
4. The present final report on the study on indigenous peoples and the right to
participate in decision-making complements the progress report by focusing on examples of
good practices of indigenous peoples’ participation in different levels of decision-making.
5. As in the case of the Expert Mechanism’s first study, the Mechanism includes
advice associated with the corresponding study, in this case on indigenous peoples and the
right to participate in decision-making.
6 The examples of good practices described in the present report are drawn from the
Expert Mechanism’s own research and submissions received, after calling for information
from, inter alia, States, and a technical workshop held in March 2011.
7. The examples outlined below have the potential to assist States, indigenous peoples,
international organizations, national human rights institutions and others to protect and
promote indigenous peoples’ participation in decision-making.
8. At the third session of the Expert Mechanism, many observers provided comments
on the State’s duty to obtain indigenous peoples’ free, prior and informed consent, and were
used to inform the present report and, in particular, advice No. 2 (see annex).
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II. Defining good practices
9. First of all, it is difficult to define what actually constitutes a “good” practice
involving indigenous peoples’ participation in decision-making and, second, to assess
whether a practice meets the definition of “good”, not least because of the distance
separating the Expert Mechanism from the context in which such practices are followed.
Third, it has been difficult to acquire comprehensive information from all regions.
10. Mechanisms enabling the participation of indigenous peoples in external, non-
indigenous decision-making processes can be problematic for various reasons; they may
operate in environments where indigenous peoples are politically, socially and
economically non-dominant and, while they enhance indigenous peoples’ participation,
they do not go so far as to level the playing field with non-indigenous individuals and
peoples; they do not allow greater indigenous influence over decisions in practice; because
they are poorly implemented, or suffer from previously unforeseeable problems; or because
they privilege the participation of certain indigenous individuals over that of others,
creating concerns about their ability to achieve equality between individuals.
11. For the above reasons, the Expert Mechanism cannot verify that all practices
mentioned in the present report are uncontroversial or objectively good in every respect.
Indeed, the Expert Mechanism can only indicate that elements of certain practices appear to
have positive aspects based on its research and on the submissions received.
12. To assess whether a practice is good, the Expert Mechanism has based its criteria on
the Declaration on the Rights of Indigenous Peoples.
13. While not an exhaustive list, the Expert Mechanism regards the factors outlined
below as relevant when determining whether a practice is good. The most significant
indicator of good practice is likely to be the extent to which indigenous peoples were
involved in the design of the practice and their agreement to it. Other indicators include the
extent to which the practice:
(a) Allows and enhances indigenous peoples’ participation in decision-making;
(b) Allows indigenous peoples to influence the outcome of decisions that affect
them;
(c) Realizes indigenous peoples’ right to self-determination;
(d) Includes, as appropriate, robust consultation procedures and/or processes to
seek indigenous peoples’ free, prior and informed consent.
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14. Some practices have been included in the report even where they might not be well
implemented, in order to highlight the potential that they have to protect and promote
indigenous peoples’ participation in decision-making.
15. Good practices may be found in, inter alia, a law, a policy programme, a single
project and/or in a component of a project.
III. Indigenous peoples’ internal decision-making processes and
institutions
16. In the context of the present report, internal decision-making processes and
institutions are indigenous; in other words, they function in accordance with indigenous-
determined practices and for indigenous peoples. That is not to say that internal decision-
making processes and institutions need to be traditional in a historical sense; instead, they
may include processes and institutions that have evolved over time, which may involve
newer practices, sometimes in response to external influences. In some cases, indigenous
decision-making processes and institutions may also be established as a result of discussion
and dialogue, or even agreement, with the State. Internal decision-making processes are
sometimes – though not always – recognized by the State and under State law.
A. Indigenous decision-making processes and institutions
17. Many indigenous institutions have their own decision-making processes, some of
which are described in the progress report of the Expert Mechanism.1 Many of these
institutions continue to receive support from communities despite, in some cases, limited (if
any) recognition by the State. The right to maintain such distinct decision-making processes
and institutions is embodied, inter alia, in articles 5, 20 and 34 of the Declaration on the
Rights of Indigenous Peoples.
18. Generally, the ongoing functioning of indigenous peoples’ internal decision-making
processes and associated institutions are positive in that they facilitate the participation of
indigenous peoples and individuals in public affairs in ways that are philosophically and
culturally consistent with indigenous peoples’ understanding of governance. Significantly,
indigenous decision-making processes and institutions also express a degree of indigenous
peoples’ self-determination and autonomy, free from imposed external influence, although
1 A/HRC/15/35, paras. 42-66.
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the State may still have ultimate authority under State law, including in some of the
examples mentioned below.
19. Examples of indigenous decision-making can be found in indigenous management
of resources in indigenous conservation areas and territories.2 Successful practices include
those where indigenous decision-making processes and traditional knowledge are respected
by the community and by other authorities. The sasi system used in Haruku, Indonesia,
where generations of kewang or indigenous institutions organize the community to remain
committed and united in managing fish stocks and other important coastal resources, is
exemplary.3 Another example is the Kaimoana customary fishing regulations in New
Zealand that permit some Maori control of customary fishing in some areas, including by
Maori institutions organized in accordance with their own beliefs, albeit significantly and
ultimately controlled by the Government.
20. The Kuna Yala Comarca is one of five special territorial units in Panama with
administrative autonomy through general, traditional, regional and local councils. The
Comarca is governed by Kuna traditions and customs, and makes its own decisions within
the framework stipulated by the Constitution and legislation. Indigenous peoples make the
majority of decisions on cultural, economic and political matters affecting their populations,
and monitor indigenous rights. The Comarca is governed by the Kuna General Council,
which is the highest authority, comprising local councils of the 49 communities, each one
represented by a chief (Saila). The region is run by three general chiefs (Caciques) elected
by the Kuna General Council. The Kuna General Council meets for four days every six
months. In addition to the 49 Sailas that represent their communities, participation in the
Councils is mandatory for National Assembly representatives, the regional Governor, the
four district representatives and the regional directors of each institution established in the
Comarca. Furthermore, each community is required to include one indigenous woman on
its delegation.4
21. In the United States of America, many American Indian nations retain residual
sovereignty over territories, albeit over areas sometimes far smaller than the areas
controlled by them historically. In practice, the doctrine permits, as a matter of United
2 See Indigenous and Community Conserved Areas, “Indigenous and community conserved areas”,
2009, available from www.iccaforum.org. 3 He Hong Mu Xiuping and Eliza Kissya with Yanes, “Indigenous knowledge and customary law in
natural resource management: experiences in Yunnan, China and Haruku, Indonesia”, Asia Indigenous Peoples Pact Foundation, 2010.
4 International Labour Organization (ILO), Indigenous and Tribal Peoples’ Rights in Practice: a guide to ILO Convention 169 (Geneva, ILO, 2009). Available from www.ilo.org/wcmsp5/groups/public/--- ed_norm/---normes/documents/publication/wcms_106474.pdf.
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States constitutional law, American Indian nations to make laws in accordance with their
own governance structures and to function under their own legal systems. The
constitutional doctrine of congressional plenary power means, however, that Congress can
legislate to override American Indian law.5
22. In Canada, a number of First Nations have entered into agreements with Canadian
provincial and federal Governments to exercise greater self-government over their
territories, such as the Nisga’a in British Columbia,6 and in accordance with the Canadian
policy to recognize the inherent right First Nations to self-government.7 The Nisga’a Lisims
Government exercises self-government over a broad range of issues, including education
and lands and resources.8 On the other side of Canada, the Nunatsiavut peoples of
Newfoundland formed a government that self-governs in areas of health, education and
culture, in accordance with the 2005 Labrador Inuit Land Claims Agreement.9 There are
some indigenous nations in Canada that are treaty-based governments. The treaties
between these indigenous nations and the Crown provide for a fundamental right to
participate in all decision-making processes on matters that affect them on the basis of
mutual consent.
B. Indigenous parliaments and organizations
23. There are a number of examples of indigenous parliaments and organizations that
enable indigenous peoples to influence decision-making in matters that potentially concern
them.
24. The Sámi Parliaments are representative advisory bodies that were established in
Norway, Sweden and Finland in 1989, 1992 and 1995 respectively to, among other
objectives, facilitate consultation with the Sámi people on matters affecting them. The
mandate and regulation of the Parliaments differs from one country to the other.
25. In Sweden, the Sami Parliament has been granted special responsibilities relating to
participation in decision-making; for example, it decides on the distribution of State grants
5 David Getches, Charles F. Wilkinson and Robert A. Williams, Jr., Cases and Materials on Federal
Indian Law, 5th ed. (Thomson/West, 2005). 6 See Nisga’a Final Agreement, available from www.nisgaalisims.ca/nisgaa-final-agreement. 7 See submission of the Government of Canada to the Expert Mechanism on the Rights of Indigenous
Peoples, July 2010. See also the submission of the University of Arizona Rogers College of Law Indigenous Peoples Law and Policy Program, “Best Practices for the Participation of First Nations in the Governance of Canada” (1 March 2011). Submissions to the Expert Mechanism are on file with secretariat of the Office of the United Nations High Commissioner for Human Rights.
8 Nisga’a Final Agreement (see footnote 6).
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and the distribution of other financing made available for the Sami; appoints the board of
Sami schools; manages Sami language projects; is the administrative agency responsible for
reindeer husbandry; participates in social planning and monitors compliance with Sami
needs, including the interests of the reindeer industry with regard to land and water; and
disseminates information on Sami conditions.10
26. In Finland, under section 9 of the Sámi Parliament Act of 1995, the authorities are
required to negotiate with the Sámi Parliament on all important measures that may directly
affect the status of the Sámi as an indigenous people.11
27. The Government of Norway and the Sami Parliament agreement on procedures for
consultation recognizes that the Sami have the right to be consulted on matters that may
affect them directly, and sets out procedures applicable to the Government and its
ministries, directorates and other subordinate State agencies or activities in matters that may
affect Sami interests directly, including legislation, regulation, specific or individual
administrative decisions, guidelines, measures and decisions.12
28. In the Philippines, the Indigenous Peoples Rights Act 1997 established a
consultative body comprising traditional leaders, elders and representatives from the
women and the youth sectors of different indigenous peoples, which advises the National
Commission on Indigenous Peoples on matters relating to the problems, aspirations and
interests of indigenous peoples. In 2003, the Commission adopted a set of guidelines for the
constitution and operationalization of the consultative body, which recognize the
constitution of consultative bodies at the national, regional and provincial levels, as well as
at the community level when the need to hold focused consultations arises. The consultative
body evaluates, inter alia, important indigenous peoples’ issues and concerns and provides
input to and makes recommendations on policies for adoption by the Commission.13
29. In New Caledonia, Congress is legally required to consult with the Customary
Senate, consisting of Kanak Senators from each of the New Caledonian customary areas,
9 See Department of Labrador and Aboriginal Affairs, Newfoundland and Labrador, Canada,
www.laa.gov.nl.ca/laa/land_claims/index.html#1. 10 See contribution of Sweden to the Expert Mechanism on the Rights of Indigenous Peoples, 2010
session, available from www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/contributions.htm.
11 See contribution of Finland to the Expert Mechanism on the Rights of Indigenous Peoples, 2010 session, available from www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/contributions.htm; ILO guide to ILO Convention n. 169 (see footnote 4); and A/HRC/18/35/Add.2.
12 See contribution of Norway to the Expert Mechanism on the Rights of Indigenous Peoples, 2010 session, available from www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/contributions.htm.
13 ILO guide to ILO Convention No. 169 (see footnote 4 above).
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when considering any law or policy affecting Kanak identity. When the Customary Senate
disagrees with the law or policy, Congress must reconsider its decision, after which the
position of Congress applies.14 While this practice preserves the supremacy of the New
Caledonian Congress on matters that are of fundamental importance to the Kanak, it
provides the opportunity for Kanak representatives to contribute to congressional
deliberations.
30. The Inuit Circumpolar Conference is a good example of regional cooperation
between indigenous peoples. The Conference holds quadrennial general assemblies at
which issues such as resource development and climate change are discussed. The
associated Inuit leaders’ summit brings together Inuit leaders of the regional and national
Governments of Inuit nations.15
C. Indigenous legal systems
31. Under its articles 5, 27, 34 and 40, the Declaration on the Rights of Indigenous
Peoples affirms the right of indigenous peoples to maintain and strengthen their own legal
systems. Articles 8 and 9 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169)
of the International Labour Organization (ILO) also provide further elaboration on these
rights. Indigenous legal systems, including legislative, judicial and procedural aspects, can
maintain harmony within indigenous society and enhance indigenous peoples’ ability to
influence decision-making externally.
32. Although Bangladesh has a unitary system of government, the legal and
administrative system in the Chittagong Hill Tracts is separate and distinct from those in
other parts of the country. Informally, the justice system of many indigenous communities
is still operational and used to settle disputes over both civil and petty criminal matters. The
traditional justice institutions, namely of the three Circle Chiefs, the Mouza headmen and
the village Karbaris, complement State justice institutions and their jurisdiction over
14 See submission by the Special Rapporteur on the rights of indigenous peoples to the Expert
Mechanism on the Rights of Indigenous Peoples, “Some examples of good practices for indigenous peoples’ participation in decision making: political participation, consultation standards, and participation in development projects” (11 March 2011).
15 Submission by Sara Olsvig to the technical workshop on good practices associated with indigenous peoples and the right to participate in decision-making of the Expert Mechanism on the Rights of Indigenous Peoples (9-10 March 2011).
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matters involving custom-based family laws, and some land and natural resource-related
rights are recognized by them.16
33. Support for the practice of indigenous legal systems in Sabah, Malaysia, to allow
such systems to remain autonomous was the result of repeated calls by indigenous leaders
and institutions. The financial support of the federal Government to improve the image of
native courts in Sabah, which had been neglected for decades, is one such example, to be
used for, inter alia, the building of new native courts and a training centre for native court
personnel, where knowledge about indigenous legal systems can be handed down to
younger leaders.17
34. The indigenous legal systems in the Ratanakiri and Mondulkiri provinces of
Cambodia constitute a good practice, even if they do not have formal State recognition. The
systems are usually consistent with indigenous values, including in relation to the
participation of all individuals and families affected by an alleged crime. Some villagers
explained that they valued indigenous legal systems because of their inclusion of many –
the community – and because judgements reflect the views of the majority. Moreover, in
some communities, village leaders, responsible for, inter alia, maintaining peace in the
community, are selected by consensus and on the basis of criteria that include the extent to
which she or he will act in the interests of the collective.18
35. The Constitution of Mexico recognizes the right of indigenous peoples to self-
determination, especially with regard to the election and exercise of their own forms of
governance (art. 2). In the same way, the Constitution of Oaxaca (arts. 16 and 25)
recognizes the right of indigenous peoples to elect and nominate their authorities and
representatives in municipalities in conformity with their legal and political systems.
D. Indigenous women in decision-making
36. Under human rights law and the Declaration on the Rights of Indigenous Peoples,
women have the right to equality in the exercise of the right of indigenous peoples to
16 Raja Devasish Roy, Sara Hossain, Dr. Meghna Guhathakurta, “Access to justice for indigenous
peoples in Bangladesh”, United Nations Development Programme (UNDP, Bangkok, 2007). Available from http://regionalcentrebangkok.undp.or.th/practices/governance/a2j/docs/CaseStudy-02- Bangladesh.pdf.
17 Jens Dahl, Genevieve Rose, “Development and customary law”, Indigenous Affairs, International Work Group for Indigenous Affairs, 2010. Available from http://issuu.com/iwgia/docs/ia_1_2_2010.
18 Maria Backstrom, Jeremy Ironside, Gordon Paterson, Jonathan Padwe, Ian G. Baird, “Indigenous traditional legal systems and conflict resolution in Ratanakiri and Mondulkiri Provinces, Cambodia” (UNDP, Bangkok, 2007).
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participate in both internal and external decision-making processes and institutions. There
is still much to be done to address deficiencies.
37. Within many indigenous societies, women continue to have important decision-
making roles, including in cultural and ceremonial events, where interaction, learning and
intergenerational transfer of knowledge take place. Through these processes, women have
the opportunity to empower themselves and others. Women also make important decisions
daily with respect to farming and the choice of crops, as well as about the daily supply of
food for the family, thus contributing to the livelihoods of families and communities.
38. Among the Naga women in north-east India, where indigenous communities
continue to face conflict, indigenous women have been playing an important role as
peacekeepers. Decisions made by the Naga women in tense situations have been
acknowledged by many to have helped to diffuse conflicts and maintain peace.19
39. The Expert Mechanism received information about the Nupi Keithel – a traditional
indigenous women’s market guild in Manipur, India – as an example of indigenous
women’s participation in State decision-making, albeit through peaceful protest and
agitation rather than through formalized processes to make the voice of indigenous women
heard.20 The Nupi Keithel successfully fought for inclusion in governmental processes to
consider the construction of a supermarket in the environs of the markets of the Nupi
Keithel. As a result, and consistent with the demands of the Nupi Keithel women, a new
building was constructed to house “their” market.
IV. Participation in decision-making mechanisms linked to State and non-State institutions and processes affecting indigenous peoples
A. Participation in parliamentary processes
40. According to information received in interviews with indigenous parliamentarians, it
is important to refer to international norms on indigenous peoples’ rights and to educate and
train majority legislators and parliamentary staff about indigenous issues.21
19 Submission by the Asia Indigenous Peoples’ Pact to the Expert Mechanism, “Good practices of
indigenous peoples’ participation in decision making” (March 2011). 20 Submission by the Centre for Organisation Research and Education to the Expert Mechanism,
“Human rights and indigenous peoples” (1 March 2011). 21 Elizabeth Powley, “Diversity in Parliament: listening to the voices of minorities and indigenous
peoples”, Inter-Parliamentary Union and UNDP (2010). Available from www.ipu.org/splz- e/chiapas10/interview.pdf.
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41. Mechanisms that guarantee the representation of indigenous peoples in State
parliaments can provide an important opportunity for indigenous peoples to participate in
and influence decision-making on a range of issues. For example, in New Zealand, the
Maori have had guaranteed representation in Parliament since 1867. Anyone of Maori
descent can choose to be on either the Maori electoral roll or the general electoral roll.
Since 1996, the number of Maori seats in the House varies according to the proportion of
Maori registered on the Maori electoral roll compared to the general electoral roll.
Currently, there are seven Maori seats in the House. The House of Representatives also has
a Maori Affairs Select Committee, to which the House may refer any issue with
implications for the Maori.22 Similarly, in Burundi, the Batwa have permanent seats in the
National Assembly, in both houses, and there has been guaranteed Batwa representation on
the National Land Commission.23
42. In the Khanty-Mansiysky Autonomous Region of the Russian Federation, an
Assembly of Indigenous Peoples is part of the structure of the regional Duma (parliament).
The region has a legislated quota of indigenous representation.24 Another positive solution
at the provincial level is the additional guarantee of Nenetz direct representation in the
relevant autonomous okrug (district).25
43. Proportional representation electoral systems can assist in the election of indigenous
individuals to State parliaments, as seen under, for example, the interim Constitution of
Nepal.26 However, measures may also be needed to ensure that the election of indigenous
individuals translates into influence in decision-making.
44. The Greenland branch of the Inuit circumpolar Council, which represents the indigenous peoples of Greenland, cooperates closely with the Government of Greenland to
establish better hearing and consultation mechanisms with regard to oil and gas exploration
projects, mining projects and other mega-industries in Greenland. Moreover, while any
22 See contribution of New Zealand to the Expert Mechanism on the Rights of Indigenous Peoples, 2010
session, available from www2.ohchr.org/english/issues/indigenous/ExpertMechanism/3rd/contributions.htm.
23 Constitution of Burundi, as referred to by the Indigenous Peoples of Africa Co-ordinating Committee; see www.ipacc.org.za/eng/default.asp. See also Minority Rights Group International, Burundi, available from www.minorityrights.org/?lid=4703&tmpl=printpage.
24 A/HRC/15/37/Add.5. See also Kathrin Wessendorf, An Indigenous Parliament? Realities and Perspectives in Russia and the Circumpolar North (International Work Group of Indigenous Affairs, April 2005).
25 Ibid. 26 A/HRC/12/34/Add.3.
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Greenlander can vote for parliament, not only Inuit, currently all representatives of the
Government and the Parliament of Greenland are Inuit.27
45. The ability of indigenous peoples to influence parliamentary decision-making is
enhanced when parliaments create internal bodies to address matters of central concern to
indigenous peoples, such as the Indigenous Affairs Commissions in the Mexican Congress,
which can influence the drafting of laws.28
46. In South Africa, the Traditional Leadership and Governance Framework Act of 2003
provides that any parliamentary bill pertaining to the customary law or customs of
traditional communities must, before it is passed by the House of Parliament where it is
introduced, be referred by the Secretary of Parliament to the National House of Traditional
Leaders for its comments.29
47. In Colombia, the Constitution reserves parliamentary seats for indigenous peoples,
chosen directly by indigenous communities, with two (out of 102) seats in the upper Senate
elected by indigenous communities, and one (out of 166) in the lower Chamber of
Representatives.30
B. Direct participation in governance
48. Direct indigenous participation in the implementation of international instruments
designed to protect and promote the rights indigenous peoples is to be commended. Nepal
ratified ILO Convention No. 169 in 2007 and established a high-level Government task
force to review existing Government programmes and policies and to prepare a
comprehensive plan for the implementation of the Convention. The task force comprised
representatives from 15 relevant ministries as well as indigenous representatives from the
National Foundation for the Development of Indigenous Nationalities and the Nepal
Federation for Indigenous Nationalities.31
49. Argentina established the Indigenous Participation Council with a mandate to ensure
the participation of indigenous peoples in the alignment of domestic legislation with ILO
27 Submission by Olsvig (see footnote 15). 28 Submission by Oleh Protsyk to the technical workshop on good practices associated with indigenous
peoples and the right to participate in decision-making of the Expert Mechanism on the Rights of Indigenous Peoples (9-10 March 2011).
29 Ibid. 30 Submission by Catherine Iorns to the technical workshop on good practices associated with
indigenous peoples and the right to participate in decision-making of the Expert Mechanism on the Rights of Indigenous Peoples (9-10 March 2011).
31 ILO, Guide to ILO Convention 169 (see footnote 4).
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Convention No. 169.32 The Council set up a bureau for the coordination of representatives
at the regional level and a coordinating council, which oversees the National Register of
Indigenous Communities and identifies problems and establishes priorities for solving
them, as well as setting up the programme of activities of the National Institute for
Indigenous Affairs for the long and medium term.33
50. In Kenya, national consultations on the Constitution included specific meetings of
indigenous peoples leading to the recognition of land rights for hunter-gatherers in the
Constitution adopted in 2010.34
51. In South Africa, the main focus of the National Khoi-San Consultative Council has
been to “engage the Government on the issue of recognition of indigenous peoples’
traditional structures and authority”.35
52. At the local G overnment level in New Zealand, there is the positive example of the Bay of Plenty Regional Council, which allows the Maori to register on a separate Maori roll
with the number of councillors determined by the number of people who register on the
roll.36
53. The Republic of the Congo adopted the Law on the Promotion and Protection on the
Rights of Indigenous Peoples in 2010. The Special Rapporteur notes that, by all accounts,
the law was developed in a participatory manner, through consultations with indigenous
peoples themselves, Congolese and international non-governmental organizations, United
Nations agencies and relevant Congolese public institutions.37 Under the law, consultation
with indigenous peoples is generally mandated when there is “the consideration,
formulation or implementation of any legislative, administrative or programmatic measure
that may affect indigenous peoples” and is required in relation to measures that affect
indigenous lands or resources or the establishment of protected areas that affect their way
32 Ibid. 33 Ibid. 34 Samburu Women for Education and Environment Development Organization, as reported in
“Kenya’s New Constitution Benefits Indigenous Peoples”, Cultural Survival, 8 December 2010, available from www.culturalsurvival.org/news/kenya/kenyas-new-constitution-benefits-indigenous- peoples.
35 ILO and the African Commission on Human and Peoples’ Rights, “South Africa: Constitutional, Legislative and Administrative Provisions concerning Indigenous Peoples”, 2009, available from www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_SouthAfrica.pdf.
36 See also A/HRC/18/35/Add.4. 37 Special Rapporteur on the rights of indigenous peoples “Some examples of good practices” (see
footnote 14).
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of life. Consultations must be conducted in good faith with a view to obtaining the free,
prior and informed consent of the concerned indigenous peoples.38
54. Another example is the establishment in Thailand of the Indigenous Peoples’
Council to engage directly with the National Reform Committee in the national reform
process. The formation of an independent local indigenous council in areas populated
largely by Karen indigenous peoples acted as a mechanism for their participation in the
establishment of a district office, later becoming a body representing the voice of
indigenous peoples in the development of the district.39
55. In Australia, the National Congress of Australia’s First Peoples is a recently
established company with the objective of providing a national voice for Aboriginal and
Torres Strait Islanders.40 It has the potential to play an important role as a vehicle for
Aboriginal input into formal State governance structures in the interests of the recognition
of the rights of Aboriginal and Torres Strait Islanders.
56. The Maya K’iches of Totonicapán participate in decision-making through a
municipal council. The council is made up of 48 representatives, each from the 48 districts
of Totonicapán, elected according to the Mayan tradition. The council deliberates on
matters concerning the administration of Totonicapán in the areas of education and cultural,
environmental and judicial issues.41
57. In Guatemala, the Academy for Mayan Languages is an autonomous State entity that
promotes the development of Mayan languages in the country. It includes a representative
for each of the 22 linguistic groups and has played a key role in promoting the law on
national languages and a unitary normative framework on the writing of Mayan
languages.42
58. The Guatemalan Association of Indigenous Mayors and Authorities is composed of
municipal indigenous mayors elected according to indigenous practices and originating in
the Agreement on Identity and the Rights of Indigenous Peoples. The Association draws
attention to the interests of indigenous peoples in the local Government context.43
38 Ibid. 39 Submission by Suraporn Suriyamonton (Network of Indigenous Peoples in Thailand) to the Expert
Mechanism on the Rights of Indigenous Peoples. 40 National Congress of Australia’s First Peoples available http://natiotu.customers.ilisys.com.au/wp-
content/uploads/2010/11/fact_sheet-what_is_the_congress.pdf. 41 Submission by the Government of Guatemala to the Expert Mechanism (March 2011). 42 Ibid. 43 Ibid.
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59. The Voting Rights Act of 1965 in the United States of America, designed to give
American Indians a greater voice in national, State and local laws, has facilitated the
participation of native Americans in decision-making, especially at the local level.44
60. The Special Rapporteur on the rights of indigenous peoples considers that, in Peru,
aspects of the draft law on consultation may be described as positive and mentions, in that
regard, the support it has received from national indigenous organizations. In accordance
with the Declaration on the Rights of Indigenous Peoples, it states that consent is an
objective of consultations and, secondly, it provides a practice solution in those instances in
which agreement is not achieved; that is, the final decision rests with the State, but the State
must provide a justification for that decision and still respect the human rights of affected
indigenous communities, and that decision is subject to judicial review.45 However, the
process leading to the adoption of the law appears to have stalled.
C. Participation in hybrid systems of governance
61. In New Zealand, some iwi (tribes) have entered into agreements with the
Government to co-manage natural resources, such as lakes, illustrating that indigenous
peoples can participate directly in decision-making in partnership arrangements with State
agencies.46 Similarly, in the United States of America, the federal Government has
delegated responsibility for the management and hunting of bowhead whales in Alaska to
the relevant Alaskan whaling communities through community membership in the Alaska
Eskimo Whaling Commission, which operates to protect indigenous whale hunting and
culture within the rules of the International Whaling Commission.47 In Canada, at the centre
of the Nunuvut Land Claims Agreement of 1993 are land and resources co-management
boards that guarantee the Inuit meaningful involvement and participation in decisions
relating to the preservation and future development of lands in the Nunuvut settlement
area.48
62. In the Chittagong Hill Tracts area of Bangladesh, indigenous institutions and elected
councils at the district and regional levels share administrative authority with the central
Government through its district and subdistrict officers.
44 Special Rapporteur on the rights of indigenous peoples “Some examples of good practices” (footnote
14). 45 Ibid. 46 See for example the website of the Ministry for the Environment of the Government of New Zealand
at www.mfe.govt.nz/publications/rma/nps-settlements-june09/html/page3.html. 47 See submission by Iorns to the technical workshop on good practices (see footnote 30). 48 Ibid.
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D. Free, prior and informed consent
63. Although a relatively new concept internationally, free, prior and informed consent
is one of the most important principles, as a right, that indigenous peoples believe can
further protect their right to participation. Effective implementation can be in the form of
specific laws and policies. Examples, as mentioned above, include that of the Democratic
Republic of the Congo, which has enacted legislation providing for consultation with a
view to obtaining the free, prior and informed consent of indigenous peoples.
64. In 2005, Novatek, the second-largest natural gas company in the Russian Federation
working in the autonomous district of Yamal-Nenetz, designed a socio-economic
programme for and with the Nenetz peoples affected by its activities, drawing on meetings
with community members and leaders. In November 2008, an agreement was signed with
the local Nenetz organization, defining the terms of cooperation between the company and
indigenous peoples. The company provided support for infrastructure and allowed
indigenous peoples to maintain their traditional livelihoods and economy while benefiting
from job opportunities in oil and gas developments.49
65. In the Plurinational State of Bolivia, in 2010, the Ministry of Hydrocarbons and
Energy undertook a consultation process on a proposed hydrocarbon exploration project in
the indigenous territory of Charagua Norte and Isoso. It resulted in an agreement between
the Government and the Guaraní Peoples Assembly of Charagua Norte and Isoso
documenting community consent prior to the initiation of exploration activities. The
Ministry of Hydrocarbons and Energy has been commended for respecting traditional
Guarani institutions and systems.50
66. In Malaysia, notwithstanding issues relating to implementation, domestic laws such
as the Sabah Forest Enactment and Sabah Parks Enactment have provisions to ensure
indigenous peoples are consulted before forest reserves and protected areas are established.
These provisions can form the basis on which indigenous peoples can require the
Government to obtain their consent before any development project is implemented.51
67. In Australia, in accordance with the Aboriginal Land Rights (Northern Territory)
Act of 1976, Aboriginal land councils must, under its section 23AA, “give priority to the
49 A/HRC/EMRIP/2009/5. 50 See Oxfam, “Case study: Bolivian Government Consultation with the Guaraní Indigenous Peoples of
Charagua Norte and Isoso: proposed hydrocarbons exploration project in San Isidro Block Santa Cruz, Bolivia”, 15 November 2010, available from www.oxfamamerica.org/publications/bolivian- government-consultation-with-guarani-indigenous-peoples.
51 Submission by the Asia Indigenous Peoples’ Pact to the Expert Mechanism (see footnote 19 above) .
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protection of the interests of traditional Aboriginal owners of, and other Aboriginals
interested in, Aboriginal land in the area of the Council” and “promote effective
consultation with the traditional Aboriginal owners of, and other Aboriginals interested in,
Aboriginal land in the area of the Council”. Under section 45, a mining interest may not be
granted in respect of Aboriginal land unless an agreement has been reached between the
Aboriginal land council and the intending miner.
68. Canadian courts have established a duty to consult and accommodate indigenous
peoples in relation to activities that can affect them, including the development of forest
areas.52 Moreover, during the consultation the indigenous people must be fully informed so
that they properly understand what is being proposed. Where there is a serious impact on
the rights of indigenous peoples, consent must be obtained.53
69. Canadian courts have also ruled that acts interfering with aboriginal and treaty rights
must be justified and, to be justified, the Government must consult with the relevant
indigenous peoples.
E. Participation in regional and international forums and processes
70. The Guidelines on Indigenous Peoples’ Issues of the United Nations Development
Group are an important example of the mainstreaming and integration of indigenous
peoples’ issues in the United Nations system, including in operational activities and
programmes at the country level. The Guidelines, designed with the input of the Permanent
Forum on Indigenous Issues, sets out broad, normative policy and operational frameworks
for implementing a human-rights based and culturally-sensitive approach to development
for and with indigenous peoples. The Guidelines also contain a list of resources on good
practices and lessons learned in programming on indigenous peoples’ issues.54
71. The annual Asia regional preparatory meetings to devise strategies and plans of
action in relation to the various United Nations mechanisms and procedures as well as other
relevant international bodies and agencies, organized by the Asia Indigenous Peoples Pact
with the active participation of self-selected representatives of indigenous peoples,
52 Council of the Haida Nation v British Columbia [2004] SCC 73 and Taku River Tlingit First Nation v
Minister of Forests [2004] SCC 74. See, also, Government of Canada Indigenous Peoples and the Right to Participate in Decision Making: A Submission by the Government of Canada to the UN Expert Mechanism on the Rights of Indigenous Peoples (July 2010).
53 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 168. 54 Available from www.undg.org/index.cfm?P=270.
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indigenous experts and representatives of United Nations agencies, has been cited as an
example of best practice. The meetings are followed up by Asia Caucus meetings during
the sessions of the Permanent Forum on Indigenous Issues and the Expert Mechanism to
formulate common statements and recommendations and to plan activities for advocacy,
networking and generating support.55
72. Another example of a good practice of indigenous participation at the international
level was the role played by the global indigenous peoples’ caucus in the negotiation and
adoption of the Declaration on the Rights of Indigenous Peoples.
73. The Advisory Council of the Andean Community (Plurinational State of Bolivia,
Colombia, Ecuador and Peru) is a consultative body that provides advice on political,
cultural, social and economic aspects of subregional integration as it affects indigenous
peoples. The body comprises one indigenous delegate from each State, chosen from among
the highest ranks of indigenous national organizations according to procedures that are
established at the national level..56
74. In Bangladesh and India, efforts by the ILO regional office to include indigenous
representatives in the consultation and implementation of its activities are examples of good
practices. In Bangladesh, ILO supported an activity to bring together representatives of
indigenous parliamentarians and peoples to draft recommendations and proposals relating
to their constitutional recognition, which was subsequently submitted to the Constitutional
Reform Committee.57
75. Six indigenous peoples’ organizations participate formally in the Arctic Council, which is a high-level intergovernmental forum in which indigenous peoples as Permanent
Participants are represented alongside the 8 arctic states and play a major role in the
agenda-setting and decision-making processes based on consensus.58
76. The United Nations Collaborative Programme on Reducing Emissions from
Deforestation and Forest Degradation in Developing Countries has been consulting with
indigenous peoples on its programme guidelines for seeking the free, prior and informed
consent of indigenous peoples and other forest-dependent communities,59 although the
Special Rapporteur notes ways in which the draft guidelines could be improved (for
55 See submission by the Asia Indigenous Peoples Pact (see footnote 19). 56 ILO, Guide to ILO Convention 169 (see footnote 4). 57 Asia Indigenous Peoples Pact (see footnote 19). 58 Submission by Olsvig (see footnote 15). 59 For example, in Arusha from 27 to 30 January 2011.
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example, in his letter of 28 February 2011 to the Senior Policy Adviser of the United
Nations Development Programme).
F. Other examples of good practices
77. Most national human rights institutions established in accordance with the Paris
Principles have a mandate to advise Governments in formulating legislations and
procedures. As such, as independent bodies, they can play an important role in bringing
together representatives of Government and indigenous peoples, thus promoting the
participation of indigenous peoples in discussions and decisions on issues that concern
them. Such institutions can also stress the need for all stakeholders to ensure that
indigenous representatives are involved in decision-making.
78. The Human Rights Commission of Malaysia has adopted cooperative and
responsive approaches to developing solutions designed to improve the status and
recognition of indigenous peoples’ rights to land, through its national inquiry into the land
rights of indigenous peoples. The methods of the inquiry will include calling for public
submissions and holding consultations and public hearings where indigenous peoples
would be among the key stakeholders. The research, which includes community mapping
activities, would ensure the participation of indigenous peoples and organizations in
obtaining data for Geographic Information System maps showing indigenous lands
claims.60
79. The Australian Human Rights Commission’s “Close the Gap” campaign for
Indigenous Health Equality brings together all parties in its campaign. In 2007, parties
negotiated an agreed position and strategy to address health inequality. A Steering
Committee was established comprising national-level Aboriginal and Torres Strait Islander
and non-indigenous professional-health peak bodies. It has resulted in a positive
relationship with relevant government representatives to achieve a set of agreed targets. As
an accountability measure, the Prime Minister provides a national statement on those
targets during the first annual session of Parliament.
80. In Indonesia, Aliansi Masyarakat Nusantara, the national indigenous network, has
signed a memorandum of understanding with the national human rights institution to deal
with allegations of human rights abuse and to promote the Declaration on the Rights of
Indigenous Peoples. Similar examples to promote the Declaration among indigenous
60 Submission by the Malaysian Human Rights Commission to the Expert Mechanism.
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peoples that enables indigenous peoples’ participation in decision-making are now part of
the activities of the Asia Pacific network of national human rights institutions.
81. Academia and United Nations agencies have promoted the principles of non-
discrimination, participation, accountability and empowerment, which have permitted
disadvantaged and vulnerable groups to secure more inclusion in governance. In particular,
the publication by the Asia-Pacific Regional Centre of the United Nations Development
Programme’s “Towards inclusive governance: promoting the participation of disadvantaged
groups in Asia-Pacific” offers lessons learned in eight Asia-Pacific countries. The case
studies advocate the inclusion of excluded groups, including indigenous peoples, to ensure
their effective representation and to create conditions conducive to greater respect,
promotion and fulfilment of the human rights of all peoples.61 This example constitutes a
good practice by a United Nations agency to encourage and promote indigenous decision-
making institutions and processes in various situations.
61 United Nations Development Programme, Towards Inclusive Governance (2007), http://www.snap-
undp.org/elibrary/Publications/TowardsInclusiveGovernance.pdf (accessed 17 April 2011).
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Annex
Expert Mechanism advice No. 2 (2011):
Indigenous peoples and the right to participate in decision-
making
1. Indigenous peoples are among the most excluded, marginalized and disadvantaged
sectors of society. This has had a negative impact on their ability to determine the direction
of their own societies, including in decision-making on matters that affect their rights and
interests. This can still be a major factor contributing to their disadvantaged position.
Decision-making rights and participation by indigenous peoples in decisions that affect
them is necessary to enable them to protect, inter alia, their cultures, including their
languages and their lands, territories and resources. In many cases, however, indigenous
peoples practised or continue to practise their own forms of governance.
2. The right of indigenous peoples to participation is well established in international
law. More recently, the indigenous-rights discourse has seen increased focus on rights not
only allowing indigenous peoples to participate in decision-making processes affecting
them, but to actually control the outcome of such processes.
3. This spectrum of rights is well illustrated by the Declaration on the Rights of
Indigenous Peoples, which contains more than 20 general provisions pertaining to
indigenous peoples and decision-making. These rights range from the right to self-
determination encompassing a right to autonomy or self-government to rights to participate
and be actively involved in external decision-making processes. Other provisions establish
specific duties for States to ensure the participation of indigenous peoples in decision-
making, inter alia, to obtain their free, prior and informed consent; to consult and cooperate
with indigenous peoples; and to take measures in conjunction with them.62
4. As a normative expression of the existing international consensus regarding the
individual and collective human rights of indigenous peoples in a way which is coherent
with already existing international human rights standards, the Declaration on the Rights of
Indigenous Peoples provides a framework for action aiming at the full protection and
implementation of the rights of indigenous peoples, including their right to participate in
decision-making.
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5. With regard to participatory rights, international human rights law refers to the right
to participate in public affairs in both general and specific forms, including as set out in
various human rights treaties, such as in article 25 of the International Covenant on Civil
and Political Rights and in the Indigenous and Tribal Peoples Convention, 1989 (No. 169)
of the International Labour Organization (ILO).63 Participation in public affairs in its
general form includes involvement in the conduct of public affairs. Electoral participation is
only one specific expression of the right to participation. Moreover, the right to take part in
public affairs is not limited to participation in formal political institutions, as it also
includes participation in civil, cultural and social activities of a public nature. The right to
participate in public affairs has conventionally been understood as a civil and political right
of the individual. In the context of indigenous peoples, however, the right also takes on a
collective aspect, implying a right of the group as a people to exercise decision-making
authority.
6. The right of indigenous peoples to participate in decision-making is also affirmed in
international jurisprudence more generally, such as in the decision of the Inter-American
Court of Human Rights in which the Court recognized indigenous peoples’ right to
organize themselves in ways that are consistent with their customs and traditions under
State electoral laws.64 The African Commission on Human and Peoples’ Rights has
expressed concern about the exclusion of indigenous peoples from decision-making about
the treatment of their lands.65
7. Article 6 of ILO Convention No. 169 requires that consultations with indigenous
peoples be carried out through institutions that are representative of indigenous peoples.
Indigenous peoples should control the process by which representativeness is determined,
in accordance with human rights standards as set out in, inter alia, the Declaration on the
Rights of Indigenous Peoples.66
8. The requirement that consultations be carried out through appropriate procedures
implies that general public hearing processes are not normally regarded as sufficient to
meet this procedural standard. Consultation procedures need to allow for the full expression
of indigenous peoples’ views, in a timely manner and based on their full understanding of
the issues involved, so that they may be able to affect the outcome and consensus may be
achieved.
62 Arts. 3-5, 10-12, 14, 15, 17-19, 22, 23, 26-28, 30-32, 36, 37, 38, and 40-41. 63 Arts. 2, 5-7, 15-17, 20, 22, 23, 25, 27, 28, 33 and 35. 64 Inter-American Court of Human Rights, Yatama v. Nicaragua, judgement of 23 June 2005. 65 African Commission on Human and Peoples’ Rights, Endorois Welfare Council v. Kenya, 4 February
2010.
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9. Moreover, consultations should be undertaken in good faith and in a form
appropriate to the relevant context. This requires that consultations be carried out in a
climate of mutual trust and transparency. Indigenous peoples must be given sufficient time
to engage in their own decision-making process, and participate in decisions taken in a
manner consistent with their cultural and social practices. Finally, the objective of
consultations should be to achieve agreement or consensus.
10. As indicated above, the duty to consult indigenous peoples is further reflected in a
number of provisions of the Declaration on the Rights of Indigenous Peoples.67 Like ILO
Convention No. 169, Declaration articles 19 and 32(2) require States to consult indigenous
peoples in good faith, through appropriate procedures, with the objective of obtaining their
agreement or consent when measures that may affect indigenous peoples are considered.
11. Moreover, a number of United Nations human rights treaty bodies have established
that States have a duty, within the framework of their treaty obligations, to effectively
consult indigenous peoples on matters affecting their interests and rights and, in some
cases, to seek to obtain the consent of indigenous peoples.68
12. The duty of States to consult with indigenous peoples and to obtain their consent are
also expressed in the jurisprudence of, inter alia, the universal periodic review of the
Human Rights Council,69 the Inter-American Court of Human Rights and the Inter-
American Commission on Human Rights,70 the African Commission on Human and
Peoples’ Rights,71 the Special Rapporteur on the rights of indigenous peoples,72 and in
international policy,73 some of which is described in the Expert Mechanism’s progress
report on indigenous peoples and the right to participate in decision-making.74 In the
66 A/HRC/EMRIP/2010/2. 67 Arts. 10, 11, 15, 17, 19, 28, 29, 30, 32, 36, 37 and 38. 68 See A/HRC/EMRIP/2010/2. See also CCPR/C/79/Add.109 and Add.112, CCPR/CO/69/AUS and
CCPR/CO/74/SWE; Official Records of the General Assembly, Fiftieth Session, Supplement No. 40 (A/50/40), vol. II, annex X, section I, para. 9.6; CERD/C/CAN/CO/18, paras. 15 and 25; CERD/C/NZL/CO/17, para. 20; CERD/C/IDN/CO/3, para. 17; CERD/C/COD/CO/15, para. 18; CERD/C/ECU/CO/19, para. 16; CERD/C/USA/CO/6, para. 29; CERD/C/NAM/CO/12, para. 18; CERD/C/SWE/CO/18, para. 19; CCPR/C/NIC/CO/3, para. 21; CCPR/C/BWA/CO/1, para. 24; CCPR/C/CRI/CO/5, para. 5; CCPR/C/CHL/CO/5, para. 19; Official Records of the General Assembly, Fifty-second Session, Supplement No. 18 (A/52/18), annex V; and E/C.12/GC/21.
69 See, for example, Human Rights Council decision 12/106. 70 For example, Yatama v. Nicaragua (see footnote 65) and Saramaka People v. Suriname, judgement of
28 November 2007. 71 Endorois Welfare Council v. Kenya (see footnote 66). 72 A/HRC/12/34. 73 For example, see the Akwe: Kon Voluntary Guidelines for the implementation of article 8(j) of the
Convention of Biodiversity, and the European Bank for Reconstruction and Development, Environmental and Social Policy (May 2008).
74 A/HRC/EMRIP/2010/2.
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progress report, 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.75
13. The right to full and effective participation in external decision-making is of
fundamental importance to indigenous peoples’ enjoyment of other human rights. For
instance, the right of indigenous peoples to identify their own educational priorities and to
participate effectively in the formulation, implementation and evaluation of education
plans, programmes and services is crucial for their enjoyment of the right to education.76
When implemented as a treaty right, the right to education can offer a framework for
reconciliation. Truth and reconciliation commissions offer a model for improved relations
between States and indigenous peoples as well.77
14. The participation of indigenous peoples in external decision-making is of crucial
importance to good governance. One of the objectives of international standards on
indigenous peoples’ rights is to fill the gap between their rights on the one hand and their
implementation on the other hand.
15. Many indigenous peoples remain vulnerable to top-down State interventions that
take little or no account of their rights and circumstances. In many instances, this is an
underlying cause for land dispossession, conflict, human rights violations, displacement and
the loss of sustainable livelihoods.
16. The duty to consult indigenous peoples applies whenever a measure or decision
specifically affecting indigenous peoples is being considered (for example, affecting their
lands or livelihood). This duty also applies in situations where the State considers decisions
or measures that potentially affect the wider society, but which affect indigenous peoples,
and in particular in instances where decisions may have a disproportionally significant
effect on indigenous peoples.78
17. With regard to the right to self-determination, the Declaration on the Rights of
Indigenous Peoples affirms that indigenous peoples, in exercising their right to self-
determination, have the right to develop and maintain their own decision-making
institutions and authority parallel to their right to participate in external decision-making
75 Ibid. In Canada, treaties 6, 7 and 8 contain provisions on indigenous peoples’ consent. For instance,
Treaty No. 6, concluded in 1876, provides that “and whereas the said Indians have been notified and informed by Her Majesty’s said Commissioners that it is the desire of Her Majesty to open up for settlement, immigration and such other purposes … and to obtain the consent thereto of Her Indian subjects inhabiting the said tract” (para. 3).
76 A/HRC/12/33. 77 A/HRC/15/36, para. 11.
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processes that affect them. This is crucial to their ability to maintain and develop their
identities, languages, cultures and religions within the framework of the State in which they
live.
18. Article 3 of the Declaration on the Rights of Indigenous Peoples mirrors common
article 1, paragraph 1, of the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights. Consequently,
indigenous peoples have the right to determine their own economic, social and cultural
development and to manage, for their own benefit, their own natural resources. The duties
to consult with indigenous peoples and to obtain their free, prior and informed consent are
crucial elements of the right to self-determination.
19. As affirmed in articles 5, 18, 36 and 37 of the Declaration on the Rights of
Indigenous Peoples, and within the ambit of the right to self-determination, indigenous
peoples have the right to make independent decisions in all matters relating to their internal
and local affairs, and to effectively influence external decision-making affecting them if
they choose to participate in such processes.
20. As mentioned above, the right to free, prior and informed consent is embedded in
the right to self-determination. The procedural requirements for consultations and free,
prior and informed consent respectively are similar. Nevertheless, the right of free, prior
and informed consent needs to be understood in the context of indigenous peoples’ right to
self-determination because it is an integral element of that right.
21. The duty of the State to obtain indigenous peoples’ free, prior and informed consent
entitles indigenous peoples to effectively determine the outcome of decision-making that
affects them, not merely a right to be involved in such processes. Consent is a significant
element of the decision-making process obtained through genuine consultation and
participation. Hence, the duty to obtain the free, prior and informed consent of indigenous
peoples is not only a procedural process but a substantive mechanism to ensure the respect
of indigenous peoples’ rights.
22. The Declaration on the Rights of Indigenous Peoples requires that the free, prior and
informed consent of indigenous peoples be obtained in matters of fundamental importance
for their rights, survival, dignity and well-being. In assessing whether a matter is of
importance to the indigenous peoples concerned, relevant factors 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,
78 See A/HRC/12/34, paras. 42-43.
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inter alia, the cumulative effects of previous encroachments or activities and historical
inequities faced by the indigenous peoples concerned. Premised on the right to self-
determination, article 10 of the Declaration prohibits the forcible removal of indigenous
peoples from their lands and territories. In contrast, ILO Convention No. 169, article 16(2),
includes procedural elements that permit forced relocation as an exceptional measure,
without the consent of the indigenous peoples concerned. The Declaration moreover
requires States to obtain the free, prior and informed consent of indigenous peoples in
certain other situations, as reflected in its articles 11(2), 19, 28(1), 29(2), 32(2) and 37.
23. The duty to obtain the free, prior and informed consent of indigenous peoples
presupposes a mechanism and process whereby indigenous peoples make their own
independent and collective decisions on matters that affect them. The process is to be
undertaken in good faith to ensure mutual respect. The State’s duty to obtain free, prior and
informed consent affirms the prerogative of indigenous peoples to withhold consent and to
establish terms and conditions for their consent.
24. The elements of free, prior and informed consent are interrelated; the elements of
“free”, “prior” and “informed” qualify and set the conditions for indigenous peoples’
consent; violation of any of these three elements may invalidate any purported agreement
by indigenous peoples.
25. The element of “free” implies no coercion, intimidation or manipulation; “prior”
implies that consent is obtained in advance of the activity associated with the decision
being made, and includes the time necessary to allow indigenous peoples to undertake their
own decision-making processes; “informed” implies that indigenous peoples have been
provided all information relating to the activity and that that information is objective,
accurate and presented in a manner and form understandable to indigenous peoples;
“consent” implies that indigenous peoples have agreed to the activity that is the subject of
the relevant decision, which may also be subject to conditions.79
Measures
26. Reform of international and regional processes involving indigenous peoples should
be a major priority and concern. In particular, multilateral environmental processes and
forums should ensure full respect for the rights of indigenous peoples and their effective
participation including, for example, in relation to the negotiation of the Nagoya Protocol.
79 For an interpretation of free, prior and informed consent, see E/C.19/2005/3.
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27. Respect for indigenous peoples’ right to participate in decision making is essential
for achieving international solidarity and harmonious and cooperative relations. Consensus
is not a legitimate approach if its intention or effect is to undermine the human rights of
indigenous peoples. Where beneficial or necessary, alternative negotiation frameworks
should be considered, consistent with States’ obligations in the Charter of the United
Nations and other international human rights law.
28. Free, prior and informed consent implies that States have a duty to obtain indigenous
peoples’ consent in relation to decisions that are of fundamental importance for their rights,
survival, dignity and well-being. States should ensure that consultations and negotiations
with indigenous peoples as required by article 18 of the Declaration on the Rights of
Indigenous Peoples and consistent with other human rights standards.
29. States have a duty to respect indigenous peoples’ right to participate in all levels of
decision-making, including in external decision-making, if the indigenous peoples
concerned so choose and in the forms of their choosing, including, where appropriate, in
co-governance arrangements.
30. States should respect and assist both traditional and contemporary forms of
indigenous peoples’ governance structures, including their collective decision-making
practices.
31. States should enact and implement constitutional and other legal provisions that
ensure indigenous peoples’ participation in decision-making consistent with the Declaration
on the Rights of Indigenous Peoples, in particular where that is sought by affected
indigenous peoples.
32. Indigenous women often face exceptional impediments to participation in decision-
making. States, international organizations, indigenous peoples and other decision-making
entities should therefore conduct more intensive studies and design appropriate mechanisms
to facilitate the participation of indigenous women in their activities and increase their
access to address difficulties facing indigenous women seeking to fully participate in
decision-making. Likewise, the inclusion of indigenous youth in decision-making is
essential in both internal and external, including legislative, decision-making.
33. States and relevant international and domestic organizations should ensure that
indigenous peoples have the financial and technical capacity to engage in consultation and
consent-seeking exercises and to participate in regional and international decision-making
processes.
34. States should also recognize that the right to self-determination of indigenous
peoples constitutes a duty for States to obtain indigenous peoples’ free, prior and informed
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consent, not merely to be involved in decision-making processes, but a right to determine
their outcomes. Treaties, as evidence of the right to self-determination, and the relationship
they represent are the basis for a strengthened partnership, consistent with the Declaration
on the Rights of Indigenous Peoples.
35. States shall respect indigenous peoples’ right to self-determination consistent with
the Declaration on the Rights of Indigenous Peoples and other international standards.
States shall ensure that indigenous peoples have the means to finance their autonomous
functions.
36. The United Nations should, in accordance with the Declaration on the Rights of
Indigenous Peoples, establish a permanent mechanism or system for consultations with
indigenous peoples’ governance bodies, including indigenous parliaments, assemblies,
councils or other bodies representing the indigenous peoples concerned, to ensure effective
participation at all levels of the United Nations.
37. ILO should enable effective representation by indigenous peoples in its decision-
making, and especially with regard to the implementation and supervision of ILO
Conventions and policies relevant to indigenous peoples.
38. UNESCO should enable and ensure effective representation and participation of
indigenous peoples in its decision-making, especially with regard to the implementation
and supervision of UNESCO Conventions and policies relevant to indigenous peoples, such
as the 1972 World Heritage Convention. Robust procedures and mechanisms should be
established to ensure indigenous peoples are adequately consulted and involved in the
management and protection of World Heritage sites, and that their free, prior and informed
consent is obtained when their territories are being nominated and inscribed as World
Heritage sites.
39. National human rights institutions, as independent bodies, should play an important
role in bringing together representatives of Government and indigenous peoples, thus
promoting indigenous peoples’ participation in discussions and decisions on issues that
concern them. National human rights institutions can also stress the need for all
stakeholders to ensure indigenous representatives are involved in decision-making. Such
institutions, through their own programmes, could also actively involve indigenous peoples
in decision-making on related issues.
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