A/HRC/39/62 community to control a portion of land has been recognized, no use of that land will be permitted without the consent of that community. 34 The Constitutional Court of Colombia recognizes three situations in which consent is mandatory: displacement of indigenous peoples; the storage of toxic waste; and when the existence of the group is put at risk. 35 The Constitutional Court of the Plurinational State of Bolivia has recognized similar situations as warranting consent, as established by the Inter-American Court of Human Rights. 36 The need for consent in the case of large-scale development projects on indigenous lands was generally agreed by the Constitutional Court of Colombia.37 The Supreme Court of Belize has made express references to free, prior and informed consent, including to article 32 of the Declaration, ultimately finding that the failure to obtain consent prior to granting concessions and permissions was unlawful.38 38. Certain rights, such as the right to be free from torture, are never subject to limitation by States. Even for those rights that may, theoretically, be limited by States in accordance with article 46, paragraph 2, of the Declaration, such limitation must be necessary and proportionate for the purpose of achieving the human rights objectives of the society as a whole and be non-discriminatory. As James Anaya has said, “no valid public objective is found in mere commercial purpose, private gains or revenue-raising objective”. 39 Given the nature of the impact of large-scale development projects on the rights of indigenous peoples, it will often be difficult to justify such projects in view of these restrictions. 39. The burden of proof is on the State to demonstrate that the decision to pursue the activity following failure to obtain consent meets these exceptional criteria. In Tsilhqot’in Nation, the Supreme Court of Canada held that consent may only be overridden in strict circumstances when the government can demonstrate that: it has discharged its responsibilities in respect of the rights of the peoples concerned, including a procedural duty to consult; the action is aimed at pursuing an objective that is compelling and substantial from the perspective of the broader public and the indigenous community; the action will not substantially deprive future generations of an aboriginal group of the benefits of their land; and the principle of necessity and proportionality applies. 40 40. Any decision to limit indigenous peoples’ rights within the exceptional circumstances of article 46 must be accompanied not only by necessary safeguards, including redressing balance-of-power issues, impact assessments, mitigation measures, compensation and benefit sharing, but also by remedial measures taking into account any rights violations. The need for benefit sharing was also referred to in the Saramaka case, and in the Endorois case the African Commission on Human and Peoples’ Rights stated that benefit sharing may be understood as a form of reasonable equitable compensation resulting from the exploitation of traditionally owned lands and of those natural resources necessary for the survival of the community. Of course, in some cases, including injuries to human life, sacred sites and cultural practices, it may be difficult or impossible to put a financial valuation on rights violations. Any tensions in this regard arising within indigenous communities in the process of seeking free, prior and informed consent should be resolved by the indigenous peoples themselves, in accordance with their own laws, traditions and customs, through their own representative institutions. 34 35 36 37 38 39 40 For more Canadian Supreme Court cases see Mauro Barelli, “Free, Prior and Informed Consent in the United Nations Declaration on the Rights of Indigenous Peoples”, in The UN Declaration on the Rights of Indigenous Peoples: A Commentary, Jessie Hohmann and Marc Weller, eds. (Oxford, Oxford University Press, 2018). Case T-129 of 3 March 2011. Case No. 2003/2010 R of 25 October 2010 and Barelli, “Free, Prior and Informed Consent”. Cases T-769/09 of 29 October 2009, T-129 of 11 March 2011 and T-376/12 of 18 May 2012; see also Barelli, “Free, Prior and Informed Consent”. See Sarstoon Temash Institute for Indigenous Management v. Belize, 3 April 2014. S. James Anaya and Sergio Puig, “Mitigating State sovereignty: the duty to consult with indigenous peoples”, University of Toronto Law Journal, vol. 67, No. 4 (Fall 2017). See Endorois case. 11