A/HRC/39/62 I. Introduction 1. In accordance with its mandate under Human Rights Council resolution 33/25, at its tenth session, held in July 2017, the Expert Mechanism on the Rights of Indigenous Peoples decided to produce a study on free, prior and informed consent, as it appears in several provisions of the United Nations Declaration on the Rights of Indigenous Peoples. For this purpose, the Expert Mechanism held a seminar in Santiago on 5 and 6 December 2017. The present study was informed by presentations shared at the seminar and submissions by Member States, indigenous peoples, national human rights institutions, academics and others.1 2. The study seeks to contribute to an understanding of free, prior and informed consent in the context of developing practices and interpretations of this human rights norm enshrined in the Declaration. Taking into account 11 years of advocacy and jurisprudence following the adoption of the Declaration, the present study is not intended to be either exhaustive or definitive, but should contribute to the body of interpretative guidance now available to States, indigenous peoples and others working on issues of concern to indigenous peoples. II. Human rights basis of free, prior and informed consent 3. Free, prior and informed consent is a human rights norm grounded in the fundamental rights to self-determination and to be free from racial discrimination guaranteed by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The provisions of the Declaration, including those referring to free, prior and informed consent, do not create new rights for indigenous peoples, but rather provide a contextualized elaboration of general human rights principles and rights as they relate to the specific historical, cultural and social circumstances of indigenous peoples (see A/HRC/9/9, para. 86), as shown in the following sections. 4. Consistent with the right to self-determination, indigenous peoples have always had the inherent power to make binding agreements between themselves and other polities. The contemporary concept and practice of mutually negotiated, consensual agreement among indigenous peoples and State governments is deeply grounded in the historic treaty-making process that characterized indigenous-State relations for several hundred years in many regions of the world and persists in many places where those treaties remain the law of the land, 2 even if they have often been dishonoured. 3 Historically and today, it can be challenging for indigenous peoples to negotiate with States under conditions of colonization and the many other limitations that often characterize the situation of indigenous peoples around the world. 5. Yet, as Special Rapporteur Miguel Alfonso Martínez concluded in his final report, the process of negotiation and seeking consent inherent in treaty-making is the most suitable way not only of securing an effective contribution from indigenous peoples to any effort towards the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realization and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict resolution of indigenous 1 2 3 2 All the submissions are available from www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/StudyFPIC.aspx. E.g., Treaty No. 6 between the Cree and other Nations with the British Crown, in 1876, made reference to the requirement for “consent” in paragraph 3, as did article 16 of the 1868 Treaty of Fort Laramie between the United States of America and the Oceti Sakowin States. United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).