The United Nations Declaration on the Rights of Indigenous Peoples A Manual for National Human Rights Institutions Consultation with indigenous peoples is a process, rather than a single event, and the procedures by which consultations are undertaken will be dependent on the circumstances requiring the consultation. In all cases, consultations should be guided by the overarching requirement of good faith.119 They should be undertaken with the aim of achieving agreement or consent about the proposed measure. As noted by the Special Rapporteur, the principles guiding consultation 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”.120 Treaty bodies have also called upon numerous Governments to carry out consultations with indigenous peoples on matters affecting their rights and interests. In light of its general recommendation No. 23 (1997), the Committee on the Elimination of Racial Discrimination has urged States to establish practical mechanisms for implementing the right to consultation in a manner that respects the prior, free and informed consent of the affected peoples and communities and to ensure that such consultations are carried out systematically and in good faith.121 It has also recommended that effective consultations be carried out with communities likely to be affected by projects to develop and exploit natural resources, with the aim of obtaining their free, prior and informed consent at each stage of the process, particularly in the case of mining projects.122 Similarly, the Committee on Economic, Social and Cultural Rights has recommended that, prior to the construction of hydro-electric projects, a State undertakes comprehensive impact assessments and extensive consultations with affected communities, providing them with genuine opportunities to present their views and influence decision-making.123 The Committee on the Rights of the Child has also recommended that companies be required to undertake assessments, consultations and full public disclosure of the environmental, health-related and human rights impacts of their business activities and their plans to address such impacts.124 While the obligation to consult is borne by States, corporations and other private actors are also required to respect the human rights of indigenous peoples. They can also play an important role in promoting and protecting the rights of indigenous peoples.125 The objectives of these consultations can vary greatly. Accordingly, the Special Rapporteur on the rights of indigenous peoples has encouraged States and industry to look beyond compensation agreements and to encourage ownership interest and profit-sharing in extractive industries, when indigenous peoples are so inclined. The Special Rapporteur has also recommended diverse forms of interaction between indigenous peoples, States and business enterprises. For example, in relation to a major hydroelectric development project, he recommended establishing a group of independent experts to facilitate the consultation under the auspices of the United Nations. 3. FREE, PRIOR AND INFORMED CONSENT Free, prior and informed consent is more than consultation. States have the obligation to have consent as the objective of consultation before any of the following actions are taken: • The adoption of legislation or administrative policies that affect indigenous peoples (article 19) • The undertaking of projects that affect indigenous peoples’ rights to land, territory and resources, including mining and other utilization or exploitation of resources (article 32). 119 See articles 19, 32 and 46 of the Declaration. See also A/HRC/12/34, paras. 46-53. 120 A/HRC/12/34, paras. 46 and 49. 121 See the Committee’s concluding observations on Bolivia (Plurinational State of) (CERD/C/BOL/CO/17-20) and Ecuador (CERD/ ECU/CO/20-22). 122 Concluding observations on Mexico (CERD/C/MEX/Q/16-17). 123 Concluding observations on Ethiopia (E/C.12/ETH/CO/1-3). 124 Concluding observations on Namibia (CRC/C/NAM/CO/2-3). 125 See A/HRC/17/31 and Human Rights Council resolution 17/4. For an in-depth examination of corporate responsibility with respect to indigenous rights, see the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (A/HRC/15/37). 26 | Chapter 3: The content of the Declaration: Self-determination; autonomy; and participation, consultation and consent