CERD/C/102/D/54/2013 indeed given by any third party to the substantive arguments raised by the indigenous communities. The Committee considers that the duty to consult23 in such a context is the responsibility of the State and cannot be delegated without supervision to a private company, especially to the very company that has a commercial interest in the resources within the territory of the indigenous peoples.24 As observed by the Special Rapporteur on the rights of indigenous peoples, in addition to not absolving the State of ultimate responsibility, such delegation of a State’s human rights obligations to a private company may not be desirable, and can even be problematic, given that the interests of the private company, generally speaking, are principally lucrative and thus cannot be in complete alignment with the best interests of the indigenous peoples concerned.25 In the present communication, by delegating the consultation process to the mining company without effective guarantees and thus failing in its duty to respect the land rights of the Vapsten Sami reindeer herding community, the State party did not comply with its international obligations. 6.18 Moreover, the Committee further considers that environmental and social impact studies should be part of the consultation process with indigenous peoples. These studies should be conducted by independent and technically competent entities, prior to the awarding of a concession for any development or investment project affecting traditional territories. Based on these studies, consultations must be held from the early stages and before the design of the project, not only at the point when it is necessary to obtain approval; they should not start with predefined ideas according to which the project must necessarily be carried out, and they must involve constant communication between the parties. The Committee recalls that, since the uncertainty of the outcome on the Vapsten Sami reindeer herding community has been identified and admitted by the State party, it is even more so the responsibility of the State party, in the context of the process of awarding the concessions, to impose strict terms on studies and to supervise their implementation in order to limit as much as possible their impact on reindeer husbandry. Although the need to achieve a balance between the mining operations and the reindeer husbandry was invoked by the administrative authorities, the procedure does not allow that to be done as, according to the State party, when a prospector has discovered a potentially profitable deposit, the first step towards starting mining operations is to apply for an exploitation concession; a concession decision determines who has the right to extract the metals or minerals and this right also applies visà-vis the property owners and without their consent, which is the main purpose of the concession system. 6.19 The Committee notes that the concession process is in practice dissociated from the environmental permit process, since the Land and Environment Court is competent to examine the submission for the environmental permit and to determine the conditions or terms and limitations to be placed on the operations after an exploitation concession is issued. In other words, the consultation process takes place at a stage of the procedure where, as the State party admits, “it is too soon to assess to what extent there would be an infringement on the petitioners’ possibilities to pursue reindeer husbandry”. 6.20 It is not up to the Committee to decide which public interest should prevail on the land, namely, mineral extraction, on the one hand, or “protecting areas that are important for reindeer husbandry against measures that may substantially obstruct its operation”, on the other hand. However, it was the responsibility of the State party to strike a balance in fact and not only in theory or in abstracto, to identify and indicate during the consultation process to the Vapsten Sami reindeer herding community where they could find alternative grazing grounds and to fulfil the obligation to operate an effective consultation process. Development and exploitation of natural resources, as a legitimate public interest, does not absolve States parties from their obligation not to discriminate against an indigenous community that depends on the land in question by mechanically applying a procedure of consultation 23 24 25 14 The obligation to consult has been qualified as a general principle of international law: InterAmerican Court of Human Rights, Case of Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment, 27 June 2012, para. 164. United Nations Declaration on the Rights of Indigenous Peoples, art. 19. A/HRC/12/34, para. 55.