A/HRC/21/47
critical importance. Arriving at such understanding cannot be adequately achieved by
framing the discussion within these principles alone, however.
49.
A better approach appreciates, first, that neither consultation nor consent is an end in
itself, nor are consultation and consent stand-alone rights. As instructed by the Inter1
American Court of Human Rights in Saramaka v. Suriname, principles of consultation and
consent together constitute a special standard that safeguards and functions as a means for
the exercise of indigenous peoples’ substantive rights. It is a standard that supplements and
helps effectuate substantive rights, including the right to property, which was the focus of
the Court’s judgement in that case, and other rights that may be implicated in natural
resource development and extraction.
50.
The primary substantive rights of indigenous peoples that may be implicated in
natural resource development and extraction, as has been extensively documented include,
in particular, rights to property, culture, religion, and non-discrimination in relation to
lands, territories and natural resources, including sacred places and objects; rights to health
and physical well-being in relation to a clean and healthy environment; and rights to set and
pursue their own priorities for development, including development of natural resources, as
part of their fundamental right to self-determination. These rights are grounded in multiple
international instruments, including binding multilateral human rights treaties that have
been widely ratified, and are articulated in the United Nations Declaration on the Rights of
Indigenous Peoples.2
51.
By their very nature, the rights that are potentially affected by natural resource
extraction entail autonomy of decision-making in their exercise. This is especially obvious
with regard to the rights to set development priorities and to property, but it is also true of
the other rights. Accordingly, the consultation and consent standard that applies specifically
to indigenous peoples is a means of effectuating these rights, and is further justified by the
generally marginalized character of indigenous peoples in the political sphere, but it is a
standard that certainly does not represent the full scope of these rights (A/HRC/18/35, para.
82).
52.
Furthermore, it is important to comprehend that the consultation and consent
standard is not the only safeguard against measures that may affect indigenous peoples’
rights over their lands, territories and natural resources, among others. Such additional
safeguards include but are not limited to the undertaking of prior impact assessments that
provide adequate attention to the full range of indigenous peoples’ rights, the establishment
of mitigation measures to avoid or minimize impacts on the exercise of those rights,
benefit-sharing and compensation for impacts in accordance with relevant international
1
2
Judgement of 28 November 2007, paras. 129-137.
See E/CN.4/2003/90, paras. 6-30 (discussing the impact of large-scale development projects on
indigenous peoples’ rights, including rights over lands and resources); E/CN.4/2002/97, paras. 39-57
(a review of international and domestic law and practice upholding indigenous rights over lands,
territories, and natural resources); A/HRC/9/9, paras. 20-30 (a review of the practice of human rights
bodies under international instruments of general applicability); Report on the situation of human
rights in Ecuador (OEA/Ser.L/V/II.96, Doc. 10 rev. 1 (1997)), chap. VIII (discussing conditions of
environmental pollution resulting from oil development as inconsistent with the rights to life and
physical well-being); Indigenous and tribal peoples’ rights over their ancestral lands and resources,
norms and jurisprudence of the Inter-American Human Rights System (OEA/Ser.L/V/II. Doc. 56/09
(2009)), paras. 5-22 (reviewing the foundations of indigenous rights over lands, territories and
resources in international instruments, customary international law and the practice of treaty bodies).
13