A/HRC/51/50
participate in decision-making processes.25 In particular, the Committee on the Elimination
of Racial Discrimination, in seeking to dismantle conceptual structures that dispossessed and
disempowered indigenous peoples, pointed specifically at “consent” as a human rights
norm.26
16.
Consent is as a key principle that enables indigenous peoples to exercise their right to
self-determination, whereby indigenous peoples are considered to engage with and are
entitled to give or withhold consent to proposals that affect them .27 The Expert Mechanism
has also noted that several treaties between States and indigenous peoples have affirmed the
principles of indigenous peoples’ consent as underpinning the treaty relationship between
States and indigenous peoples.28
17.
The principle of free, prior and informed consent provides States with the necessary
guidelines for engaging in the process of dialogue and negotiation and it is not a free-standing
device of legitimation. This principle, within the human rights framework, does not consider
consent to be simply a “yes” to a predetermined decision.29 Free, prior and informed consent
should be considered as a minimum standard in all phases of treaty- or agreement-making
processes, including the design of frameworks, the negotiation, establishment and
enforcement of agreements and the creation and operation of conflict resolution mechanisms.
It should also be applied as the operative principle in the case of grievances and reparations .30
III. Types of treaties, agreements and other constructive
arrangements between indigenous peoples and States
18.
Indigenous peoples and States have established agreements using a wide range of
instruments, which share the aim of strengthening partnerships between them in order to
promote cooperative relations, build peaceful coexistence, regulate issues of common
concern and establish stable, mutual relations.
19.
According to the Inter-American Commission of Human Rights, the “treaties
historically signed with indigenous peoples can be understood as the implicit recognition of
their inherent sovereignty and the establishment of nation-to-nation, or government-togovernment, political relations”.31 In Aotearoa/New Zealand, the Treaty of Waitangi serves
as an important framework for the relationship between the Maori and the British Crown and
represents the beginning of an ongoing dialogue between the Maori and the State.
20.
In Canada, following the decision of the Supreme Court in Calder et al. v. AttorneyGeneral of British Columbia, 25 modern treaties or comprehensive land claim agreements
have been signed, some addressing self-government.32 Current developments merit deeper
examination, such as the legal recognition of the Declaration as a universal international
human rights instrument with application in Canadian law 33 and the recent federal and
25
26
27
28
29
30
31
32
33
See A/HRC/EMRIP/2010/2; see also CCPR/C/79/Add.109 and CCPR/C/79/Add.112;
CCPR/CO/69/AUS; CCPR/CO/74/SWE; A/50/40, vol. II, annex X, sect. 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; A/52/18,
annex V; and Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009).
Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997).
A/HRC/39/62, para. 25.
A/HRC/18/42, annex, para. 12.
A/HRC/24/41, para. 30.
E/CN.4/Sub.2/1999/20, para. 263, and A/HRC/39/62, para. 45.
Inter-American Commission on Human Rights, Derecho a la libre determinación de los Pueblos
Indígenas y Tribales (OEA/Ser.L/V/II. Doc.413/21), December 2021, para. 224; see also
A/HRC/21/47/Add.1, para. 19.
Government of Canada, “Modern treaties”, see https://www.rcaanccirnac.gc.ca/eng/1100100028574/1529354437231#chp4.
Government of Canada, United Nations Declaration on the Rights of Indigenous Peoples Act (SC
2021, c 14), sect. 4 (a).
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