A/HRC/39/62 Discrimination and Protection of Minorities. 9 This eventually led to the elaboration of the Declaration, as a dual framework combining remedial rights with ongoing rights. 10. As early as 1997, 10 years before the adoption of the Declaration by the General Assembly, the Committee on the Elimination of Racial Discrimination concluded that racial discrimination constituted the main underlying cause of most discrimination suffered by indigenous peoples. It affirmed that discrimination against indigenous peoples fell under the scope of the Convention and that all appropriate means had to be taken to combat and eliminate such discrimination. 10 The Committee pointed specifically at “consent” as a human rights norm seeking to negate false doctrine and dismantle conceptual structures that dispossessed and disempowered indigenous peoples. It called upon States to ensure that members of indigenous peoples had rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests were taken without their informed consent. 11 It also called upon States to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they had been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.12 III. Free, prior and informed consent as a human rights norm A. Rationale 11. Free, prior and informed consent as provided for in the Declaration has three major rationales. First, it seeks to restore to indigenous peoples control over their lands and resources, as specified in article 28. Some authors argue that, “free, prior and informed consent has its origins in the native title principle, according to which native people have their right to lands based on their customary law and sustained connection with the land”,13 and others that “historical legal doctrine firmly establishes indigenous peoples’ sovereign rights over ancestral lands and resources as a matter of long-standing international law”.14 Second, the potential for free, prior and informed consent to restore indigenous peoples’ cultural integrity, pride and self-esteem is reflected in article 11 of the Declaration. Indigenous peoples’ cultural heritage, including human remains, taken without consent, are still held by others. Third, free, prior and informed consent has the potential to redress the power imbalance between indigenous peoples and States, with a view to forging new partnerships based on rights and mutual respect between parties (see A/HRC/EMRIP/2010/2), as reflected in articles 18 and 19 of the Declaration. B. Nature of free, prior and informed consent as a human rights norm 12. The Declaration recognizes collective rights and protects collective identities, assets and institutions, notably culture, internal decision-making and the control and use of land and natural resources. The collective character of indigenous rights is inherent in indigenous culture and serves as a bulwark against disappearance by forced assimilation. 13. Free, prior and informed consent operates fundamentally as a safeguard for the collective rights of indigenous peoples. Therefore, it cannot be held or exercised by 9 10 11 12 13 14 4 See “Martínez Cobo Study” (E/CN.4/Sub.2/476 and Add.1–5; E/CN.4/Sub.2/1982/2 and Add.1–7; and E/CN.4/Sub.2/1983/21 and Add.1–7). See Committee on the Elimination of Racial Discrimination general recommendation No. 23 (1997) on the rights of indigenous peoples. Ibid. Ibid. See MacInnes, Colchester and Whitmore submission. S. James Anaya, “Divergent discourses about international law, indigenous peoples, and rights over lands and natural resources: toward a realist trend”, Colorado Journal of International Environmental Law and Policy (Spring 2005).