The United Nations Declaration on the Rights of Indigenous Peoples A Manual for National Human Rights Institutions The Committee on the Elimination of Racial Discrimination also calls for both consultation and informed consent in its interpretation of the rights of indigenous peoples in applying the International Convention on the Elimination of All Forms of Racial Discrimination. In its general recommendation No. 23, the Committee requires States parties to ensure that indigenous peoples have equal rights to participate in public life and that no decisions relating directly to indigenous peoples are to be taken without their informed consent. With specific reference to land and resource rights, the Committee calls for restitution in situations where decisions have already been taken without the prior and informed consent of the affected indigenous peoples. It has also highlighted the obligation of States to ensure that the right of indigenous peoples to free prior and informed consent is respected in the planning and implementation of projects affecting the use of their lands and resources.128 More recently, the Committee on Economic, Social and Cultural Rights has further expanded on free, prior and informed consent in general comment No. 21. In its interpretation of cultural rights, the Committee outlines that the right to participate in cultural life includes the rights of indigenous peoples to restitution or return of lands, territories and resources traditionally used and enjoyed by indigenous communities if taken without the prior and informed consent of the affected peoples. It also calls on States parties to “respect the principle of free, prior, and informed consent of indigenous peoples in all matters covered by their specific rights” and to “obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk”.129 In the same vein, the Inter-American Court of Human Rights held in the Saramaka case that the State has a duty to not only consult with indigenous peoples, but also to obtain their free, prior and informed consent, according to their customs and traditions, in cases of large-scale development or investment projects that would have a major impact within indigenous peoples’ territory.130 In relation to the practical application of the principle of free, prior and informed consent, the following guidance has been provided: Free, should imply that there is no coercion, intimidation or manipulation, and Prior should imply consent being sought sufficiently in advance of any authorisation or commencement of activities and respective requirements of indigenous consultation/consensus processes. Informed should imply that information is provided that covers a range of aspects, [including, inter alia] … the nature, size, pace, reversibility and scope of any proposed project or activity; the reason/s or purpose of the project …; the duration; locality or areas affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks; personnel likely to be involved in the execution of the project; and procedures the project may entail. This process may include the option of withholding consent. Consultation and participation are crucial components of a consent process.131 A number of intergovernmental development agencies and international financial institutions have incorporated free, prior and informed consent into their policies and programmes on indigenous peoples. The United Nations Development Programme policy on indigenous peoples “promotes and supports the right of indigenous peoples to free, prior informed consent with regard to development planning and programming that may affect them”.132 The Operational Policy on Indigenous Peoples and Strategy for Indigenous Development adopted by the Inter-American Development Bank promotes “participation mechanisms and processes that must take into account the general principle of the free, informed and 128 See, for example, the Committee’s concluding observations on the Lao People’s Democratic Republic (CERD/LAO/CO/16-18) and Canada (CERD/CAN/CO/19-20). 129 Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009) on the right of everyone to take part in cultural life. 130 Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement of 28 November 2007, Series C No. 172. 131 United Nations Permanent Forum on Indigenous Issues, “Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, New York, United States of America,17-19 January 2005” (E/C.19/2005/3), paras. 46-49. 132 United Nations Development Programme, UNDP and Indigenous Peoples: A Policy of Engagement (2001). 28 | Chapter 3: The content of the Declaration: Self-determination; autonomy; and participation, consultation and consent