A/HRC/45/38 D. Article 46 30. The general limitation on States’ ability to restrict indigenous rights under article 46 (2) and (3) of the Declaration is relevant for the implementation of all the aforementioned articles in the context of rights and concessions granted to non-indigenous third parties. Any restrictions on indigenous rights must be established by law and must be necessary, proportionate, non-discriminatory, have the aim of attaining a legitimate goal in a democratic society and defined within an overall framework of respect for human rights. 62 The Inter-American Court of Human Rights has applied similar principles, stating that the appropriate resolution of disputes between indigenous peoples and third parties must consider, on a case-by-case basis, “the legality, necessity, proportionality and fulfilment of a lawful purpose in a democratic society”.63 Given the significance of land rights to a range of human rights and to the survival of indigenous peoples, it would be difficult to establish valid limitations on rights that would have the effect of impairing indigenous peoples’ use of their lands, territories and resources. 64 E. Article 22 31. Particular attention should be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of all the rights in the Declaration, as these groups are disproportionately affected by the failure to implement land rights. Women’s vital role on and in the protection of the land is often overlooked. One of the major structural barriers impeding indigenous women’s access to and control over lands, territories and resources is patriarchal laws regarding inheritance and joint ownership of family lands and resources. 65 As the Special Rapporteur on the rights of indigenous peoples has noted, land appropriation is not gender-neutral. 66 Indigenous women often face intersecting forms of discrimination and often do not have access on an equal basis with men to ownership or possession of and control over land.67 This frequently leads to difficulties in getting loans and having control over farm products. F. Redress68 Article 28 32. Under this article, indigenous peoples should receive redress for violations of their land rights, including for the confiscation of lands, territories and resources and for the occupation, use or damage of lands, territories and resources without their free, prior and informed consent. It is clear from the use of the past tense that article 28 (1) applies retrospectively, despite debates on the issue during the travaux préparatoires on the Declaration.69 Alternatively, the right to redress for past wrongs can be founded on the basis that indigenous peoples continue to suffer the ongoing effects of their loss. Thus, they are seeking redress for a wrong they are experiencing at present, akin to the “continuing violation” argument of the Human Rights Committee. 70 33. Remedies must be provided on the basis of “a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs and customary 62 63 64 65 66 67 68 69 70 10 A/HRC/39/62. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, para. 138. A/HRC/24/41, paras. 35–36. Submission by the Asia-Pacific Forum on Women, Law and Development. A/HRC/30/41. Committee on the Elimination of Discrimination against Women, general comment No. 34 (2016) on the rights of rural women. A/HRC/39/62. Federico Lenzerini, “International assistance, reparations and redress”, The UN Declaration on the Rights of Indigenous Peoples: A Commentary, Jessie Hohmann and Marc Weller, eds. (Oxford, Oxford University Press, 2018), p. 590. Case of the Sawhoyamaxa Indigenous Community v. Paraguay and Anton v. Algeria (CCPR/C/88/D/1424/2005).