A/HRC/12/34
page 16
otherwise use, whether or not they hold ownership title to those lands.”24 One can easily
imagine innumerable ways in which indigenous peoples and their interests may be affected by
development projects or legislative initiatives in the absence of a corresponding legal
entitlement.
45. The specific characteristics of the consultation procedure that is required by the duty to
consult will necessarily vary depending upon the nature of the proposed measure and the scope
of its impact on indigenous peoples. Constitutional or legislative reform measures that concern
or affect all the indigenous peoples of a country will require appropriate consultation and
representative mechanisms that will in some way be open to, and reach, all of them. By contrast,
measures that affect particular indigenous peoples or communities, such as initiatives for natural
resource extraction activity in their territories, will require consultation procedures focused on
the interests of, and engagement with, those particularly affected groups.
C. The requirement that consultations be in good faith,
with the objective of achieving agreement or consent
46. The character of the consultation procedure and its object are also shaped by the nature of
the right or interest at stake for the indigenous peoples concerned and the anticipated impact of
the proposed measure. The Declaration establishes that, in general, consultations with indigenous
peoples are to be carried out in “good faith … in order to obtain their free, prior and informed
consent” (art. 19). This provision of the Declaration should not be regarded as according
indigenous peoples a general “veto power” over decisions that may affect them, but rather as
establishing consent as the objective of consultations with indigenous peoples. In this regard,
ILO Convention No. 169 provides that consultations are to take place “with the objective of
achieving agreement or consent on the proposed measure” (art. 6, para. 2). The somewhat
different language of the Declaration suggests a heightened emphasis on the need for
consultations that are in the nature of negotiations towards mutually acceptable arrangements,
prior to the decisions on proposed measures, rather than consultations that are more in the nature
of mechanisms for providing indigenous peoples with information about decisions already made
or in the making, without allowing them genuinely to influence the decision-making process.
47. Necessarily, the strength or importance of the objective of achieving consent varies
according to the circumstances and the indigenous interests involved. A significant, direct
impact on indigenous peoples’ lives or territories establishes a strong presumption that the
proposed measure should not go forward without indigenous peoples’ consent. In certain
contexts, that presumption may harden into a prohibition of the measure or project in the
absence of indigenous consent. The Declaration recognizes two situations in which the State is
under an obligation to obtain the consent of the indigenous peoples concerned, beyond the
general obligation to have consent as the objective of consultations. These situations include
when the project will result in the relocation of a group from its traditional lands, and in cases
24
Report of the Committee set up to examine the representation alleging non-observance by
Guatemala of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under
article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC),
para. 48.