A/HRC/12/34
page 17
involving the storage or disposal of toxic waste within indigenous lands (arts. 10 and 29,
para. 2, respectively). In the same vein, in a case involving the Saramaka people of Suriname, the
Inter-American Court of Human Rights held that “regarding large-scale development or
investment projects that would have a major impact within Saramaka territory, the State has a
duty, not only to consult with the Saramaka, but also to obtain their free, prior, and informed
consent, according to their customs and traditions”.25
48. In all cases in which indigenous peoples’ particular interests are affected by a proposed
measure, obtaining their consent should, in some degree, be an objective of the consultations. As
stated, this requirement does not provide indigenous peoples with a “veto power”, but rather
establishes the need to frame consultation procedures in order to make every effort to build
consensus on the part of all concerned. The Special Rapporteur regrets that in many situations
the discussion over the duty to consult and the related principle of free, prior and informed
consent have been framed in terms of whether or not indigenous peoples hold a veto power that
they could wield to halt development projects. The Special Rapporteur considers that focusing
the debate in this way is not in line with the spirit or character of the principles of consultation
and consent as they have developed in international human rights law and have been
incorporated into the Declaration.
49. These principles are designed to build dialogue in which both States and indigenous
peoples are to work in good faith towards consensus and try in earnest to arrive at a mutually
satisfactory agreement. As emphasized earlier, the duty of States to consult with indigenous
peoples and related principles have emerged to reverse historical patterns of imposed decisions
and conditions of life that have threatened the survival of indigenous peoples. At the same time,
principles of consultation and consent do not bestow on indigenous peoples a right to unilaterally
impose their will on States when the latter act legitimately and faithfully in the public interest.
Rather, the principles of consultation and consent are aimed at avoiding the imposition of the
will of one party over the other, and at instead striving for mutual understanding and consensual
decision-making.
D. Elements of confidence-building conducive to consensus
50. A good faith effort towards consensual decision-making of this kind requires that States
“endeavour to achieve consensus on the procedures to be followed; facilitate access to such
procedures through broad information; and create a climate of confidence with indigenous
peoples which favours productive dialogue”.26 The creation of a climate of confidence is
particularly important in relation to indigenous peoples, “given their lack of trust in State
institutions and their feeling of marginalization, both of which have their origins in extremely old
25
26
Saramaka v. Suriname, para. 134.
Report of the Committee set up to examine the representation alleging non-observance by
Guatemala of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under
article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC)
GB.294/17/1; GB.299/6/1 (2005), para. 53.