Participation and consultation

2. Participation and consultation

Article 18 of the Declaration establishes that “indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”.

The Declaration requires States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them (article 19).

The right to participation is also present in those articles of the Declaration which affirm the rights of indigenous peoples to be consulted regarding, or to consent to, decisions which will affect their interests.

The Expert Mechanism has discussed the relationship between the right to self-determination and the participation of indigenous peoples in decision-making. It has noted that self-determination is an ongoing process which ensures that indigenous peoples continue to participate in decision-making and have control over their own destinies. It means that the institutions of decision-making should be devised to enable indigenous peoples to make decisions related to their internal and local affairs, as well as to participate collectively in external decision-making processes in accordance with relevant human rights standards.¹¹¹

Other United Nations bodies have addressed elements of the right of indigenous peoples to self-determination in the context of consultation and participation. The Committee on the Elimination of Racial Discrimination has emphasized the importance of participation by indigenous peoples’ freely chosen representatives in processes of constitutional negotiation and has recommended respect for the principle of free, prior and informed consent in those negotiations.¹¹² The Committee on Economic, Social and Cultural Rights has also issued a general comment on the right to culture, emphasizing the communal nature of indigenous people’s culture and the importance of indigenous peoples’ lands to those cultures. In its general comment No. 21, the Committee addresses the obligation to:

… allow and encourage the participation of persons belonging to … indigenous peoples … in the design and implementation of laws and policies that affect them.¹¹³

The Special Rapporteur on the rights of indigenous peoples has recommended to a State that it build greater opportunities for indigenous peoples to participate in decision-making processes and to recognize, strengthen and accommodate indigenous peoples’ own decision-making institutions and authority.¹¹⁴ He has further noted that involving indigenous peoples in decision-making facilitates better outcomes for projects and programmes. He has expressed the view that without the consultation and buy-in of indigenous peoples at the earliest stages of the development of government initiatives, the effectiveness of those programmes, even those that are intended to specifically benefit indigenous peoples, can be crippled at the outset. A lack of adequate consultation can lead to situations of conflict, as well as indigenous expressions of anger and mistrust, which, in some cases, have spiralled into violence.¹¹⁵

The Expert Mechanism has completed a study on the right of indigenous peoples to participate in decision-making and has issued advice on the subject to the Human Rights Council.¹¹⁶ It has noted the special opportunities for NHRIs to promote the participation of indigenous peoples in the discussions and decisions which concern them.

EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES: FINAL STUDY ON INDIGENOUS PEOPLES AND THE RIGHT TO PARTICIPATE IN DECISION-MAKING117 National human rights institutions, as independent bodies, should play an important role in bringing together representatives of Government and indigenous peoples, thus promoting indigenous peoples’ participation in discussions and decisions on issues that concern them. National human rights institutions can also stress the need for all stakeholders to ensure indigenous representatives are involved in decision-making. Such institutions, through their own programmes, could also actively involve indigenous peoples in decision-making on related issues.

The Expert Mechanism has also identified resource extraction as a thematic area requiring special attention in relation to the right of indigenous peoples to participate in decision-making. It has noted that while States retain the primary obligation to ensure indigenous peoples’ right to participate is respected, nevertheless, to meet their own responsibility to respect human rights, extractive businesses should ensure, and make their own assessment as to, compliance with the right of indigenous peoples to participate in decision-making. Indeed, positive experience illustrates that extractive industries should work in partnership with States and indigenous peoples at all planning and implementation stages of extractive activities that might impact on indigenous peoples’ interests.¹¹⁸

The right of indigenous peoples to participate in decision-making is a key component in achieving reconciliation between indigenous peoples and States and, when effectively implemented, affords an effective means of combating the legacy of exclusion and marginalization affecting indigenous peoples throughout the world.

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.