peoples.353 Neither is reference made to the need to respect indigenous peoples’ customary laws and practices regarding land tenure systems when deciding on indigenous peoples’ claims to their traditional lands. The HRC and the exploitation of natural resources located in indigenous peoples’ lands With regard to the exploitation of natural resources located in indigenous peoples’ traditional lands, the HRC assesses the conformity of these activities with indigenous peoples’ right to cultural integrity in light of a twofold criterion, that is the ‘sustainability’ of the activity in relation to the culture of indigenous peoples which would be affected by these initiatives and the ‘participation’ of the indigenous communities concerned in the decisionmaking about the projects to be carried out in their lands.354 In this latter respect, it is worth noting that in its 2008 Concluding Observations on Panama the HRC expressed its concern about the ‘absence of a process of consultation to seek the prior, free and informed consent of communities to the exploitation of natural resources in their territories’ (emphasis added).355 The recent case Poma Poma v Peru summarizes very well the HRC’s approach to the issue, including the role of free, prior and informed consent. In its considerations of the merits, the HRC recognizes that: ‘a State may legitimately take steps to promote its economic development. Nevertheless, it recalls that economic development may not undermine the rights protected by article 27. Thus the leeway the State has in this area should be commensurate with the obligations it must assume under article 27. The Committee also points out that measures whose impact amounts to a denial of the right of a community to enjoy its own culture are incompatible with article 27, whereas measures with only a limited impact on the way of life and livelihood of persons belonging to that community would not necessarily amount to a denial of the rights under article 27.’ 356 The HRC then goes on to highlight that: ‘the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which 36 requires not mere consultation but the free, prior and informed consent of the members of the community. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members.’ 357 The Committee on the Elimination of Racial Discrimination The CERD is charged with monitoring the implementation of the ICERD. To this purpose, states are required to submit to the CERD periodical reports which will be the subject of the CERD’s ‘Concluding Observations’, containing some specific recommendations to states. In addition to that, the CERD can examine inter-state complaints, individual complaints and establish early-warning procedures. The issue of indigenous peoples’ rights to traditional lands is dealt with by the CERD under Article 5 (d) (v) of the ICERD prohibiting racial discrimination with respect to the enjoyment of property rights. In its General Recommendation No. 23 on indigenous peoples 358 the CERD has spelt out that the ICERD requires 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 have 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. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.’ This interpretation is regularly reflected in the CERD’s Concluding Observations. In its Concluding Observations, the CERD has further called upon states to identify and demarcate indigenous peoples’ lands 359 and, in particular, to discharge this duty ‘in co-operation with the indigenous and tribal peoples concerned’.360 Additionally, it has recommended that states ‘establish adequate procedures, and … define clear and just criteria to resolve land claims by indigenous communities within the domestic judicial system while taking due account of relevant indigenous customary laws’ (emphasis added).361 Pending this procedure – the same holds true for the procedures of identification and demarcation of indigenous peoples’ lands – the CERD tends to require that the state adopt ‘freezing measures’, that is, refrain from and suspend the MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE