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pluralism, implementation of indigenous jurisdiction is still contested. Much more
needs to be done in terms of both recognition and harmonization with the national
justice systems. An intercultural dialogue and understanding between State and
indigenous justice authorities is vital, taking into account indigenous good practices.
C.
Consultation and free, prior and informed consent
62. Consultation and free, prior and informed consent are essential safeguards that
help to realize the substantive human rights of indigenous peoples. Thus, adequate
implementation of the State duty to consult and obtain consent must ensure
realization of those fundamental rights. There are different ways in which
consultation and consent can be operationalized and this is not just limited to the
adoption of specific legislation. In cases when States decide to develop laws to
implement this duty, an adequate process has to be established so that indigenous
peoples fully participate in the drafting and adoption of such measures. The rights to
consultation and consent should not be regarded as stand -alone rights, as these are
closely linked to other rights such as the right to self-determination, the right to
lands, territories and resources and the right to development.
63. Over the past decade, the mandate holder has received many complaints and
requests for technical support regarding the implementation of the State duty to
consult and obtain the free, prior and informed consent of indigenous p eoples before
the adoption of legal, administrative and policy measures that affect them.
Commonly, the complaints received are related to the lack of effective
implementation of the rights to consultation and consent in the context of plans for
natural resource development and investment projects affecting indigenous peoples’
lands and resources.
64. In response, the mandate holder has provided detailed comments and
recommendations to help to clarify and implement these standards in general and
specific cases, including on “consultation on consultation” processes to decide on the
measures that could be best suited to ensuring respect for fundamental rights in
accordance with international human rights standards, particularly the Declaration.
Advice has been provided through participation in meetings and seminars,
communications, visits and reports, including on legal standards applicable to projects
and activities that affect indigenous peoples’ lands, territories and resources. 68
X. Implementation at the United Nations level
65. As the Declaration points out, the United Nations system has an important and
continuing role to play in promoting and protecting the rights of indigenous peoples. 69
66. United Nations human rights treaty bodies have referred to the Declaration as
an authoritative source on State obligations regarding indigenous peoples’ rights in
their assessments of compliance under the various treaties. Observations and
recommendations by the human rights treaty bodies provide valuable insight on the
implementation of the Declaration in specific contexts and situations.
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69
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See A/HRC/9/9/Add.1 ; A/HRC/12/34 ; A/HRC/12/34/Add.6 ; A/HRC/15/37 ;
A/HRC/15/37/Add.8 ; A/HRC/18/35/Add.3 ; A/HRC/18/35/Add.8 ; A/HRC/21/47 ;
A/HRC/27/52/Add.2; A/HRC/33/42/Add.2 ; and A/HRC/36/46/Add.1. See also
http://unsr.vtaulicorpuz.org/site/index.php/en/statements/166 -consultation-and-consent; and
http://unsr.vtaulicorpuz.org/site/index.php/en/documents/special/172 -comentarios-consultahonduras.
United Nations Declaration on the Rights of Indigenous Peoples, twentieth preambular paragraph
and articles 41 and 42.
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