GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
“Measures shall be taken to ensure that members of these peoples can understand
and be understood in legal proceedings, where necessary through the provision of
interpretation or by other effective means”, keeping in mind their linguistic diversity,
particularly in those areas where the official language is not spoken.
3.2 Under what circumstances is the consent of those consulted required?
Having established the need to consult Indigenous Peoples with regard to state
decisions that would affect them in a special and differentiated way in comparison
with the general population, said consultations must necessarily be oriented towards
obtaining free, prior and informed consent.
The obligation to respect the self-determination of Indigenous Peoples prevents
States from adopting decisions that affect the exercise of that right by a People,
without their consent. In other words, whenever a state decision may affect the
self-determination of an indigenous people, the State must obtain their free, prior
and informed consent.
According to the United Nations Declaration on the Rights of Indigenous Peoples,
the right of peoples to self-determination includes, among other aspects: (a) the
right to freely determine their political status; (b) the right to freely pursue their
economic, social and cultural development (Art. 3); (c) the right to autonomy or
self-government in matters relating to their internal and local affairs; (d) the right
to have ways and means for financing their autonomous functions (Art. 4).
The declaration indicates several cases in which the consent of the affected Peoples
is required. They do not present an exhaustive list, but for Indigenous Peoples
imply a minimum standard for an implementation of free prior informed consent.
For example, Article 10 mentions that Indigenous Peoples shall not be forcibly
removed from their lands or territories. No relocation shall take place without the
free, prior and informed consent of the Indigenous Peoples concerned; Article 29,
number 2 guarantees that no storage or disposal of hazardous materials shall take
place in the lands or territories of Indigenous Peoples without their free, prior and
informed consent; furthermore, Article 28, number 1 indicates that Indigenous
Peoples have the right to readress for the lands, territories and resources which
they have traditionally owned or otherwise occupied or used, and which have been
confiscated, taken, occupied, used or damaged without their free, prior and informed
consent.
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