A/HRC/45/34 IV. Consultation and consent: experiences and recommendations 47. One of the most frequently recurring issues addressed by the Special Rapporteur throughout her mandate has been the implementation of international standards on consultation and free, prior and informed consent. The Special Rapporteur has made numerous observations on this topic as part of her evaluation of individual communications, country visits, technical assistance provided to Governments, public statements, seminars, forums and other public events. The majority of this work has involved the Latin American region, where there have been important debates on the issue as well as about regulatory initiatives and jurisprudence. These developments hold important lessons for indigenous peoples and for States in other regions as regards problems in the application and interpretation of consultation and consent standards in the context of legislative and administrative measures and natural resource development projects affecting indigenous peoples. The Special Rapporteur would like to highlight some of her main observations and conclusions on this issue, made throughout the course of her mandate. (i) Foundation, nature and scope of indigenous consultations 48. One of the first challenges identified by the Special Rapporteur is how States and business actors conceptualize consultation in terms of its regulatory foundations and sources. There has been a clear tendency among States and business sectors to refer only to the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169) as the legal source of the duty to consult. By framing indigenous consultation exclusively in the parameters of ILO and its tripartite structure, some States have even addressed the topic from a logic of labour rights or relations. Indigenous consultation must be understood from the standpoint of international human rights law, taking into account the normative and jurisprudential advances in the area of indigenous peoples’ human rights since the adoption of the Indigenous and Tribal Peoples Convention in 1989. Therefore, the conceptualization and application of indigenous prior consultation and consent should be based not only on the Indigenous and Tribal Peoples Convention and the guidelines developed by ILO in that regard, but also on a much broader, and subsequent, body of law consisting of various instruments, resolutions, declarations – in particular the United Nations Declaration on the Rights of Indigenous Peoples, 66 jurisprudence and authoritative interpretations developed by international and regional human rights mechanisms. 49. Another problem observed is the lack of understanding by State and other actors of the nature and characteristics of indigenous consultation. Indigenous consultation and consent represent important safeguards for the substantive rights of indigenous peoples recognized in international human rights instruments. These substantive rights include the rights of participation and self-determination; rights to property, culture, religion and nondiscrimination in relation to lands, territories and natural resources, including sacred places and objects; rights to health and physical well-being in relation to a clean and healthy environment; and the right of indigenous peoples to set and pursue their own priorities for development. 67 Therefore, the starting point for analysing consultation and consent is evaluation of the substantive rights of indigenous peoples that would be at stake, for example in the context of development or investment plans or other measures. 68 50. Consultations with indigenous peoples need to entail a process based on a new model of relations, dialogue and cooperation between indigenous peoples and States. Indigenous consultations are not equivalent to standard procedures for notice and comment available to the general public, as the latter are not culturally adapted and nor do they adequately address indigenous peoples’ specific concerns. Given the historical and political 66 67 68 https://watanibasocioambiental.org/wp-content/uploads/2019/10/DECLARATORIA-DE-LIMA11102019.pdf. It is specifically stated in art. 35 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) that “the application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and Recommendations, international instruments, treaties, or national laws, awards, custom or agreements”. A/HRC/24/41, para. 28. A/HRC/21/47, para. 84. 13