A/HRC/39/62 28. In any event, a number of countries and stakeholders have endorsed a policy not to proceed if indigenous peoples withhold their consent. The United Nations Global Compact, in its business reference guide on the Declaration,24 advises its members not to proceed with a project after the withholding of consent by indigenous peoples. A State or stakeholder that decides to proceed after consent is withheld by indigenous peoples moves into a legal grey area and exposes itself to judicial review and other types of recourse mechanisms, potentially including international, regional and national tribunals, and by indigenous peoples’ own institutions (see paras. 38–41 below); 29. Particular caution should be exercised regarding indigenous peoples in voluntary isolation or of recent contact, including the non-imposition of contact and the obligation to protect their territories, natural resources and lives. In the case of indigenous peoples in voluntary isolation, the decision and expression not to be in contact or not to have constant interaction with other societies and the Government can be an expression of non-consent. States should respect their will and are obliged to protect their lives through the protection of their territories and natural resources. 25 30. If indigenous peoples choose to give their consent to a project, consent should be consistent with indigenous peoples’ own laws, customs, protocols and best practices, including representation by legal counsel whenever possible and as required by law. In many, if not all, instances, consent must be recorded in a written instrument, negotiated by the parties, and signed affirmatively by a legitimate authority or leader of the relevant indigenous peoples, which may include more than one group (see paras. 42–45 below). Full understanding by indigenous peoples must be ensured and additional measures should be taken by the State in cases involving indigenous peoples of recent contact. E. Operationalization of free, prior and informed consent 1. When is free, prior and informed consent required? 31. The Declaration contains five specific references to free, prior and informed consent (see arts. 10, 11, 19, 29 and 32), providing a non-exhaustive list of situations when such consent should apply. Free, prior and informed consent may be required for adoption and implementation of legislative or administrative measures 26 and any project affecting indigenous peoples’ lands, territories and other resources, within the context referred to in the paragraphs below (arts. 19 and 32). It is also required in instances of relocation of indigenous peoples from their lands or territories and storage of hazardous materials on their lands or territories (arts. 10 and 29).27 32. The role of free, prior and informed consent in the realm of natural resource development is set out in article 32 of the Declaration. This provision is particularly important given the well-known risks and impacts of extractive industries on indigenous peoples (see A/HRC/24/41, A/HRC/21/52 and A/HRC/21/55). As stated by James Anaya, the general rule in the case of extractive industries’ projects within the territories of indigenous peoples is that the free, prior and informed consent of indigenous peoples is required. Indigenous peoples’ consent may also be required when extractive activities 24 25 26 27 See www.unglobalcompact.org/library/541. See http://periodicos.unb.br/index.php/ling/article/view/26661 (in Portuguese). Many indigenous peoples suggest that social development programmes often have an impact on their customary laws, traditions and customs, including cultural, intellectual, religious and spiritual property for which free, prior and informed consent should be obtained (cf., Declaration, art. 11, para. 2; see also http://iphrdefenders.net/statement-asia-indigenous-peoples-pact-asia-indigenous-peoplescaucus-agenda-4-study-advice-free-prior-informed-consent/.) Article 29 of the Declaration is the basis for the revision of the International Code of Conduct on the Distribution and Use of Pesticides and review of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade by the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes. 9