A/HRC/39/62 launched at a late stage in a project’s development, when crucial details have already been decided; (b) Providing the time necessary for indigenous peoples to absorb, understand and analyse information and to undertake their own decision-making processes (see A/HRC/18/42, annex, para. 25). 22. Consultation in the free, prior and informed consent context should be “informed”, implying that: (a) The information made available should be both sufficiently quantitative and qualitative, as well as objective, accurate and clear; (b) The information should be presented in a manner and form understandable to indigenous peoples, including translation into a language that they understand. Consultations should be undertaken using culturally appropriate procedures, which respect the traditions and forms of organization of the indigenous peoples concerned (see A/HRC/18/42). The substantive content of the information should include the nature, size, pace, reversibility and scope of any proposed project or activity (see E/C.19/2005/3); the reasons for the project; the areas to be affected; social, environmental and cultural impact assessments; the kind of compensation or benefit-sharing schemes involved; and all the potential harm and impacts that could result from the proposed activity; 19 (c) Adequate resources and capacity should be provided for indigenous peoples’ representative institutions or decisions-making mechanisms, while not compromising their independence. Such institutions or decision-making processes must be enabled to meet technical challenges — including, if necessary, through capacity-building initiatives to inform the indigenous peoples of their rights in general — prior or parallel to the process of consultation. For example, the Australian Referendum Council recommended that the Government of Australia consider proposals designed by Aboriginal and Torres Strait Islander peoples during 13 regional dialogues and a national indigenous constitutional convention in May 2017 calling for a new First Nations representative public institution called “Voice to Parliament” based on articles 18 and 19 of the Declaration. 20 In two cases (Finmark Estate Agency v. Nesseby regional society (the Unjárga case) and Norway v. Jovsset Ánte Iversen Sara (the Sara case)), the Supreme Court of Norway referred to the consent and participation of the Sami Parliament as support for its decision that national legislation was in accordance with international law on indigenous rights, including the Declaration, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169).21 However, in the Sara case, the Court referred to the participation of the Sami Parliament as support for its decision, although consent was not achieved. It is a concern if participation is used as support for State decisions where consent is not achieved, as this could discourage indigenous peoples from participating in decisionmaking processes. 23. Failure to engage with legitimate representatives of indigenous peoples can undermine any consent received. In the Declaration it is clear that States and third parties should consult and cooperate with indigenous peoples “through their own representative institutions” (arts. 19 and 32) and “in accordance with their own procedures” (art. 18). All parties should ensure representation from women, children, 22 youth and persons with disabilities, and efforts should be made to understand the specific impacts on them (see 19 20 21 22 United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries, Guidelines on Free, Prior and Informed Consent (Geneva, 2013). See www.referendumcouncil.org.au/final-report. See www.domstol.no/en/Enkelt-domstol/-norges-hoyesterett/rulings/rulings-2018/the-scope-ofcollecetive-rights-of-use-to-land-in-nesseby-finnmark/ and www.domstol.no/globalassets/upload/hret/decisions-in-english-translation/hr-2017-2428-a.pdf. The Committee on the Rights of the Child in its general comment No. 11 (2009) on indigenous children and their rights under the Convention notes that the right of the child to be heard includes the right to representation. 7