A/HRC/45/34 context of marginalization and exclusion that indigenous peoples have faced, differentiated consultations that are appropriate to their distinctive characteristics and rights are required.69 51. Another problem identified by the Special Rapporteur is the tendency to conceive of consultations with indigenous peoples as mere formalities or procedures to provide information about measures or projects that have previously been designed and approved by State and business actors. 52. According to international standards, indigenous consultations should be prior, and should be conducted in good faith and through indigenous peoples’ representative institutions. The element of “prior” means that consultations need to be carried out before the adoption of a measure, the granting of authorizations and permits, or the signing of contracts or other definite commitments by States related to activities or projects, can affect indigenous peoples.70 53. In consultation processes, indigenous peoples’ representative and decision-making structures, cultures and time frames need to be respected. The Special Rapporteur has emphasized that to ensure the climate of trust, mutual respect and good faith that is necessary in order to develop meaningful consultation processes, the consultation procedures themselves need to be the result of consensus. This also means that States need to try to overcome situations of disadvantage and power imbalance that are faced by indigenous peoples in terms of technical and financial capacity, access to information and political influence. 54. Indigenous consultations should not be understood as a one-time event but as a continuous process that “requires the State to both accept and disseminate information, and entails constant communication between the parties”. 71 Regarding extractive projects, consultation and consent may be necessary at different stages – from impact assessments to exploration to production to project closure.72 55. Consultations should be culturally appropriate, and accessible, and should respect the forms of indigenous organization and representation, without coercion or attempts to divide them. Attention should be paid to representative structures that would be consulted in different scenarios, for example in relation to a measure with a nationwide scope, or to a measure or activity that would affect a particular indigenous community, or group of communities or people. In any case, the indigenous representative mechanisms must respond to their own internal processes and be effective in practice. 56. Adequate consultation processes must provide the time and space necessary for indigenous peoples to have full knowledge of the scope, nature and impacts of a proposed measure or activity before its approval, including possible environmental, health and other risks. Essentially, indigenous peoples should also be able to influence the making of decisions that affect their rights, as well as being able to make their own proposals. 57. There has also been a tendency to limit the scope of indigenous consultation to measures that are deemed to have a “direct impact”. Consultations should not be limited only to measures that explicitly refer to the rights and interests of indigenous peoples or to development projects whose areas of operation are in indigenous lands or territories without considering the impacts on surrounding indigenous peoples. The criterion of “impact” must be flexible and apply whenever a State decision may affect indigenous peoples in ways not felt by others in society. This includes cases of administrative or legislative measures of general application, if those measures could affect indigenous peoples differently in some way given their specific conditions and rights. 73 The process of developing consultation 69 70 71 72 73 14 “Nota técnica sobre la consulta y el consentimiento libre, previo e informado de los pueblos indígenas en México”, February 2019, p. 7; and A/HRC/12/34, para. 42. “Nota técnica sobre la consulta y el consentimiento libre, previo e informado de los pueblos indígenas en México”, p. 6. Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, judgment of 28 November 2007, para. 133. A/HRC/24/41, para. 67. A/HRC/12/34, para. 43; and comments of the Special Rapporteur on the rights of indigenous peoples in relation to the document entitled “Propuesta de gobierno para nueva normativa de consulta y