A/HRC/39/62 Development with indigenous peoples. The new Environment and Social Standard 7, adopted by the World Bank in August 2016, is more aligned with a human rights-based approach to consultation than its predecessor (Operational Policy 4.10), and calls for borrowers to carry out consultations with indigenous peoples’ representative bodies and organizations. This links consultation to the grass-roots indigenous organizations whose lands and resources might be adversely affected. 55 The 2013 edition of the Equator Principles, a risk management framework adopted by 80 financial institutions, expressly requires that projects with adverse impacts on indigenous peoples will require their free, prior and informed consent. 54. However, despite the recognition of free, prior and informed consent by financial institutions and the private sector, the experience of indigenous peoples shows that problems remain with its implementation. The process of seeking free, prior and informed consent is, at times, viewed as merely procedural in nature, rather than focused on human rights. It is sometimes seen as a goodwill gesture to indigenous peoples and can lead to serving third party interests rather than protecting the rights-holders interests. A debate around the first project of the Green Climate Fund in Peru in 2015, “PROFONANPE”, for example, suggests a lack of understanding about the operative implications of free, prior and informed consent and issues related to full and effective participation and consultation of indigenous peoples. 56 Questions also remain on the application of free, prior and informed consent as now recognized in World Bank Performance Standard 7; in no instance should this policy lower the level of protection achieved for indigenous peoples. 57 55. Some concerns have been raised about the many guidelines on free, prior and informed consent, including that the language used is often imprecise and sometimes introduces ambiguities, for example with respect to the point at which impact assessments are required or when consultation should begin. Sometimes these guidelines do not address the issue of indigenous peoples wishing to define their own consent process and to control aspects of the impact assessments. In addition, there is sometimes ambiguity in the event that consent is not forthcoming. 56. To ensure that financial institutions and the private sector can better align their policies with the rights protected in the Declaration, there is a need to develop and adopt stringent social and environmental safeguards, an indigenous peoples’ policy based on international human rights standards and the Declaration, and effective oversight and compliance mechanisms and to ensure that indigenous peoples are involved throughout the process. As States are the duty bearers in implementing indigenous peoples’ rights, their human rights obligations cannot be delegated to a private company or other entity (see A/HRC/12/34) and they remain responsible for any inadequacy in the process. 57. Indigenous peoples are also establishing their own protocols for free, prior and informed consent, particularly in North America and Latin America, including in Belize, Bolivia (the Plurinational State of), Brazil, Canada, Colombia, Guatemala, Honduras, Paraguay, Suriname and the United States of America. These protocols are an important tool in preparing indigenous peoples, States and other parties to engage in a consultation or free, prior and informed consent process, setting out how, when, why and whom to consult. The establishment of these protocols is an instrument of empowerment for indigenous peoples, closely linked to their rights to self-determination, participation and the development and maintenance of their own decision-making institutions (see A/HRC/EMRIP/2010/2). The right to be consulted “through their own representative institutions”, mentioned in several articles relating to free, prior and informed consent, suggests the seriousness with which they should be recognized. In some cases, these 55 56 57 Other international and regional organizations that have incorporated free, prior and informed consent into their policies and programmes on indigenous peoples include the United Nations Development Programme, the Food and Agricultural Organization of the United Nations, the Inter-American Development Bank and the European Bank for Reconstruction and Development. See www.forestpeoples.org/en/topics/un-framework-convention-climate-changeunfccc/publication/2015/green-climate-fund-and-fpic-ca. See http://indianlaw.org/mdb/world-bank-approves-indigenous-peoples-policy. 15