A/66/288
with such principles, the duty of States to consult with indigenous peoples in
decisions affecting them is aimed at reversing the historical pattern of excluding
indigenous people from decision-making processes in order to avoid imposing
important decisions on them in the future and to allow them to flourish as distinct
communities on lands to which their cultures remain attached.
80. As a general matter, decisions of the State should be made through democratic
processes in which the public’s interests are adequately represented. However, these
normal democratic and representative processes usually do not work adequately to
address the concerns that are particular to indigenous peoples, who are typically
marginalized from the political sphere. The duty of States to consult with indigenous
peoples and its various normative components are premised on widespread
acknowledgment, as manifested in the Declaration, of indigenous peoples’
distinctive characteristics and specific rights and on the need for special measures to
address their disadvantaged conditions.
2.
The duty to consult and the objective of obtaining consent
81. The duty to consult is a procedural obligation that arises whenever indigenous
peoples’ substantive rights stand to be affected by a particular action. It should be
noted that the duty to consult is not limited to circumstances in which a proposed
measure will or may affect an already recognized right or legal entitlement at the
national level, for example, rights over traditional lands and territories.
82. The specific characteristics of the consultation procedure that is required by
the duty to consult will necessarily vary depending on the nature of the proposed
measure and the scope of its impact on indigenous peoples. For example,
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
indigenous peoples. By contrast, measures that affect particular indigenous peoples
or communities, such as initiatives for extracting natural resources in their
territories, will require consultation procedures focused on the interests of and
engagement with the affected groups.
83. 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. Necessarily, the strength of the
objective of achieving consent varies according to the circumstances, the indigenous
peoples’ rights and the interests involved. A significant, direct impact on indigenous
peoples’ lives 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.
84. The Declaration identifies two situations in which it is necessary to obtain the
consent of the indigenous peoples concerned prior to moving forward with the
proposed initiative: situations involving the removal of an indigenous group from its
traditional lands (art. 10) and situations involving the storage of hazardous materials
in indigenous peoples’ lands (art. 29). The Special Rapporteur would add situations
involving the establishment of natural resource extraction projects within
indigenous peoples’ lands and other situations in which projects stand to have a
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