A/HRC/39/62 participation.17 Participation connotes more than mere consultation and should include the development of initiatives by indigenous peoples. “In this sense, the intertwined concepts of consultation and participation are mechanisms to ensure that indigenous peoples can decide their own priorities for the process of development and exercise control over their own economic, social and cultural development”.18 19. The rights of indigenous peoples over their lands, resources and territories are also integral parts of free, prior and informed consent, as construed in the Declaration. The right to “own, use, develop and control” the lands, territories and resources (art. 26) gives rise to a right to free, prior and informed consent consistent with indigenous peoples’ right of selfdetermination. In this regard, the role of free, prior and informed consent is to safeguard indigenous peoples’ cultural identity, which is inextricably linked to their lands, resources and territories. 2. Constituent elements of free, prior and informed consent 20. As affirmed in the Declaration, decisions to grant or withhold consent must be free. The term “free” is understood as addressing both direct and indirect factors that can hinder indigenous peoples’ free will. To that end, for a process of consultation to be genuine in the form of a dialogue and negotiation towards consent, the following should occur or the legitimacy of the consultation process may be called into question: (a) The context or climate of the process should be free from intimidation, coercion, manipulation (see A/HRC/18/42, annex, para. 25) and harassment, ensuring that the consultation process does not limit or restrict indigenous peoples’ access to existing policies, services and rights; (b) Features of the relationship between the parties should include trust and good faith, and not suspicion, accusations, threats, criminalization (see A/HRC/39/17), violence towards indigenous peoples or prejudiced views towards them; (c) Indigenous peoples should have the freedom to be represented as traditionally required under their own laws, customs and protocols, with attention to gender and representation of other sectors within indigenous communities. Indigenous peoples should determine how and which of their own institutions and leaders represent them. They should therefore enjoy the freedom to resolve international representation issues without interference; (d) Indigenous peoples should have the freedom to guide and direct the process of consultation; they should have the power to determine how to consult and the course of the consultation process. This includes being consulted when devising the process of consultation per se and having the opportunity to share and use or develop their own protocols on consultation. They should exert sufficient control over the process and should not feel compelled to get involved or continue; (e) Indigenous peoples should have the freedom to set their expectations and to contribute to defining methods, timelines, locations and evaluations. 21. Any free, prior and informed consent process must also be prior to any other decisions allowing a proposal to proceed and should begin as early as possible in the formulation of the proposal. The Inter-American Court of Human Rights in Saramaka People v. Suriname (2007) (the Saramaka case) uses the terms “early stage” and “early notice”. To that end, the “prior” component of free, prior and informed consent should entail: (a) Involving indigenous peoples as early as possible. Consultation and participation should be undertaken at the conceptualization and design phases and not 17 18 6 See ILO Committee of Experts on the Application of Conventions and Recommendations, general observation on indigenous and tribal peoples (observation 2010/81). See International Labour Organization, Understanding the Indigenous and Tribal Peoples Convention, 1989 (No. 169): Handbook for ILO Tripartite Constituents (Geneva, 2013), p. 19.