A/HRC/39/62 Annex Expert Mechanism advice No. 11 on indigenous peoples and free, prior and informed consent 1. The United Nations is an important venue for facilitating free, prior and informed consent in negotiations with States. To the extent that United Nations system organizations, including the United Nations Development Programme, the United Nations Educational, Scientific and Cultural Organization, the World Bank, the World Health Organization and the World Intellectual Property Organization (WIPO), encounter indigenous peoples’ issues, they are advised that the human rights expressed in the Declaration apply broadly in all of these settings. In particular, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources is currently in the process of negotiating several multilateral instruments on traditional knowledge, genetic resources, traditional cultural expressions and other forms of intellectual and cultural property. In the negotiation and drafting of these instruments, WIPO and Member States should reference the Declaration, and especially the norm of free, prior and informed consent, with respect to the ownership, use and protection of indigenous peoples’ intellectual property and other resources. 2. States should observe a human rights approach to free, prior and informed consent, among others by promoting capacity-building for State authorities and officials, including judges and lawmakers. Because local and subnational level authorities are in many cases closer and more sensitive to indigenous issues, local officials and company employees should receive better instructions on free, prior and informed consent. 3. States should establish an appropriate regulatory mechanism or mechanisms at the national level, preferably at the constitutional or legislative level, to regulate consultations in situations where free, prior and informed consent is required or is sought as the objective of the consultation. It should include references to the Declaration. The establishment of such a mechanism itself necessitates a process of consultation with indigenous peoples in a context of trust and good faith, and should be accompanied by the development of adequate implementing institutions, employing well-trained officials and ensuring adequate funding. Such a mechanism could also act as an oversight mechanism. 4. States should engage directly with indigenous peoples. When direct negotiations between indigenous peoples and private enterprises are sought by indigenous peoples themselves, companies must exercise due diligence to ensure the adequacy of the consultation procedures. States remain responsible for any inadequacy and should ensure measures are in place to oversee and evaluate procedures undertaken by business enterprises, which could include legislation or guidelines requiring the operationalization of free, prior and informed consent and penalizing corporations for failing to comply with such consent. 5. States should establish preconditions for achieving effective free, prior and informed consent, including building trust, good faith, culturally appropriate methods of negotiation and recognition and respect for indigenous peoples’ inherent rights. The process should be formal and carried out with mutual respect. 6. States should ensure that consent is always the objective of consultations, bearing in mind that in certain cases consent will be required. Consultations should start at the planning phase (i.e., prior to the State or enterprise committing to undertake a particular project or adopting a particular measure, such as the licensing of a project) so indigenous peoples can influence final decisions. The measures to be consulted on should be clear. Consultations should occur throughout the evolution of the project, entailing “constant communication between the parties”1 and should not be confused with public hearings for environment and regulatory statutes. 1 18 Saramaka case, para. 133.