A/HRC/12/34
page 18
and complex historic events, and both of which have yet to be overcome”.27 As a tripartite
committee of the Governing Body of ILO noted in a case involving a constitutional reform
process in Mexico, “the climate of confrontation, violence and lack of mutual trust stopped the
consultations from being conducted more productively”.28 Further, indigenous peoples are
typically disadvantaged in terms of political influence, financial resources, access to information,
and relevant education in comparison to the State institutions or private parties, such as
companies, that are their counterparts in the consultations.
51. In order to achieve a climate of confidence and mutual respect for the consultations, the
consultation procedure itself should be the product of consensus. The Special Rapporteur has
observed that, in many instances, consultation procedures are not effective and do not enjoy the
confidence of indigenous peoples, because the affected indigenous peoples were not adequately
included in the discussions leading to the design and implementation of the consultation
procedures. Additionally, States must duly address the imbalance of power by ensuring
arrangements by which indigenous peoples have the financial, technical and other assistance they
need, and they must do so without using such assistance to leverage or influence indigenous
positions in the consultations.
52. The building of confidence and the possibility of genuine consensus also depends on a
consultation procedure in which indigenous peoples’ own institutions of representation and
decision-making are fully respected, as explicitly required by the Declaration (art. 19) and
ILO Convention No. 169 (art. 6, para. 1 (a)). The Special Rapporteur notes that indigenous
peoples may also need to develop or revise their own institutions, through their own
decision-making procedures, in order to set up representative structures to facilitate the
consultation processes. The Special Rapporteur has noted that the failure of indigenous groups to
clarify their representative organization structures can confuse and slow down the consultation
process. In this respect, it may be helpful to bear in mind that the Declaration recalls that the
functioning of indigenous institutions should be “in accordance with international human rights
standards” (art. 34) and calls for particular attention “to the rights and special needs of
indigenous elders, women, youth, children and persons with disabilities”, including in the
elimination of all forms of discrimination and violence against indigenous children and women
(art. 22).
53. In cases involving natural resource exploitation or development projects affecting
indigenous lands, in order for the indigenous peoples concerned to make free and informed
decisions about the project under consideration, it is necessary that they are provided with full
and objective information about all aspects of the project that will affect them, including the
impact of the project on their lives and environment. In this connection, it is essential for the
State to carry out environmental and social impact studies so that the full expected consequences
of the project can be known. These studies must be presented to the indigenous groups
27
Report of the Committee set up to examine the representation alleging non-observance by
Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24
of the ILO Constitution by the Authentic Workers’ Front (FAT), para. 107.
28
Ibid.