A/HRC/39/62 otherwise affect indigenous peoples (outside their territories), depending upon the nature of and potential impacts of the proposed activities on their rights (see A/HRC/24/41). 2. The proportionality principle 33. In several articles, the Declaration calls for free, prior and informed consent regarding matters, projects or issues that “affect” indigenous peoples. This concept is not limited to matters that affect indigenous peoples exclusively. To the contrary, matters of broad societal application “may affect indigenous peoples in ways not felt by others in society” (see A/HRC/12/34, para. 43). Measures and projects considered to “affect” indigenous peoples to the extent that free, prior and informed consent will be required under articles 19 and 32 include matters of “fundamental importance to their rights, survival, dignity and well-being” (A/HRC/21/55, para. 27). Relevant factors in this assessment include: the perspective and priorities of the indigenous peoples concerned; the nature of the matter or proposed activity and its potential impact on the indigenous peoples concerned, taking into account, inter alia, the cumulative effects of previous encroachments or activities 28 and historical inequities faced by the indigenous peoples concerned (see A/HCR/18/42 and A/HRC/21/55). 34. The perspective of the indigenous peoples concerned on the potential broader impact of a decision is the starting point for assessing whether a legislative or administrative measure or any project affecting their lands or territories and other resources affects them (see A/HCR/18/42). Indigenous peoples should have a major role in establishing whether the measure or project affects them at all and, if it does, the extent of the impact. Indigenous peoples may highlight possible harms that may not be clear to the State or project proponent, and may suggest mitigation measures to address those harms. 35. As to impact, if a measure or project is likely to have a significant, direct impact on indigenous peoples’ lives or land, territories or resources then consent is required (see A/HRC/12/34, para. 47). It has been referred to as a “sliding scale approach” to the question of indigenous participatory rights, which means that the level of effective participation that must be guaranteed to indigenous peoples is essentially a function of the nature and content of the rights and activities in question. 29 This view is supported by the Human Rights Committee,30 which uses the language “substantive negative impact”, and the Committee on Economic, Social and Cultural Rights. Both have linked the issue of free, prior and informed consent to the nature and the effects that a proposed initiative will have on indigenous peoples’ rights in the respective human rights treaty: an approach in line with the jurisprudence of the Inter-American Court of Human Rights 31 and the African Commission on Human and Peoples’ Rights. 32 Assessment of the impact requires consideration of the nature, scale, duration and long-term impact of the action, such as damage to community lands or harm to the community’s cultural integrity. 36. Other projects requiring free, prior and informed consent and tending to have “adverse impacts” as defined by International Finance Corporation Performance Standard 7, include projects located on lands, or natural resources on lands, subject to traditional ownership or under customary use; and projects significantly impacting on critical cultural heritage of indigenous peoples or using cultural heritage, including knowledge, innovation or practices for commercial purposes.33 37. A number of domestic court decisions support these principles. An expansive view of consent was recently taken by the Supreme Court of Canada in the case of Tsilhqot’in Nation v. British Columbia (2014). The Court decided that once the right of an indigenous 28 29 30 31 32 33 10 See Saramaka case. Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective, International Studies in Human Rights, vol. 102 (Brill/Nijhoff, 2009), p. 113. See Länsman et al. v. Finland (CCPR/C/52/D/511/1992) and Poma Poma v. Peru. See Saramaka case. See Centre for Minority Rights Development v. Kenya, 276/03 (the Endorois case). See Performance Standard 7 (2012) on Indigenous Peoples; and Doyle, Indigenous Peoples, Title to Territory, Rights and Resources, chap. 5.