A/HRC/45/34 laws or regulations requires consultation too, as this can also help in identifying consultation scenarios that respond to the realities of indigenous peoples in each country. (ii) Impact assessments 58. In order to ensure reliable information in consultation processes, independent and impartial social, cultural and environmental impact studies that cover the full spectrum of rights that could be affected by a measure or project are required under international standards. 74 The participation of indigenous peoples themselves in these assessments is essential, in order to identify the said impacts as well as possible alternatives and mitigation measures.75 Any proposed legislation on indigenous consultation must state the obligatory nature of these impact assessments, and adequate parameters for carrying them out. (iii) Free, prior and informed consent 59. The main point of debate and disagreement regarding indigenous consultation revolves around the binding nature of its results. Indigenous peoples consider that their will must be respected regarding measures or activities that affect them. State and business sectors consider that this position amounts to a veto power, which they reject from the outset. Reducing the principles of consultation and consent to a debate about the existence of a veto power would amount to losing sight of the spirit and character of these principles which seek to end historical models of decision-making regarding indigenous peoples that have excluded them and threatened their survival as peoples. 76 60. Under the principles of progressive realization and non-regression of human rights, obtaining free, prior and informed consent should be understood as the objective of consultations and as an obligation in cases of significant impacts on the rights of indigenous peoples. This is evident in international legal developments subsequent to the Indigenous and Tribal Peoples Convention, of 1989 – including in the United Nations Declaration on the Rights of Indigenous Peoples, the jurisprudence of the inter-American human rights system, and the general comments and decisions of treaty-monitoring bodies.77 61. It is necessary to move beyond the debate over the existence of a veto in the context of development projects, and instead focus on the international human rights obligations that States must observe at all times. Any restrictions on these rights, such as a decision to proceed without the free, prior and informed consent of an indigenous people, imposes on the State a burden to prove the permissibility of the said restrictions under the international criteria of legality, necessity and proportionality in relation to a valid public purpose. 78 62. The Special Rapporteur, in common with previous mandate holders, has highlighted the need for review mechanisms through a judicial or other impartial and competent body in order to ensure that any decision by a State entity that does not have the consent of the indigenous peoples affected complies with these criteria and does not affect the physical 74 75 76 77 78 participación indígena de conformidad a los artículos 6º y 7º del Convenio No 169 de la Organización Internacional del Trabajo”, Chile (November 2012), para. 43, available (in Spanish) at http://unsr.jamesanaya.org/docs/special/2012-11-29-unsr-comentarios-a-propuesta-reglamentoconsulta-chile.pdf. A/HRC/31/52 (report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment), para. 50; A/HRC/25/53, paras. 29–43; International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (No. 169), art. 7 (3); Inter-American Court of Human Rights, Saramaka case, para. 129; and InterAmerican Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, judgment of 27 June 2012, para. 206. Inter-American Commission on Human Rights, “Indigenous and tribal peoples’ rights over their ancestral lands and natural resources”, OEA/Ser.L/V/II.Doc 56/09, paras. 245, 248 and 267. A/HRC/12/34, paras. 48–49. See Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997) on the rights of indigenous peoples, para. 5; Poma Poma v. Peru (CCPR/C/95/D/1457/2006), paras. 7.4 and 7.6; Committee on Economic, Social and Cultural Rights, general comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, para. 12; and Inter-American Court of Human Rights, Saramaka case, paras. 134 and 137. For further information, see A/HRC/24/41, paras. 34–36. 15