GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Studies conducted in diverse regions of the world indicate that when communities
are given information in terms that are not familiar to them or even languages that
are not well understood by them, this limits processes of consent.47
Indigenous Peoples' use of their own languages is a right that is closely linked to
the principal of interculturality48 and self-determination. Interculturality in processes
of dialogue implies the need to recognise the “other”, their otherness, their particular
forms of expression and their value systems in order to, thereby, establish favourable
terrain, upon which the basic principle of free, prior and informed consent may
be met (Office of the High Commissioner for Human Rights in Mexico, 2011).
Article 27 of the International Covenant on Civil and Political Rights recognises
the right of ethnic, religious or linguistic minorities to enjoy their own culture, to
profess and practice their own religion and to use their own language.
Conduct of impact assessments:
The UN Guiding Principles on Business and Human Rights require the corporate
entities to conduct human rights due diligence prior to commencing a project. This
is being interpreted as requiring a human rights impact assessment in high risk
activities such as extractive projects located in Indigenous Peoples territories. In
the context of natural resource extraction projects the conduct of these assessments
is generally delegated to project proponent, who pays for the consultants to conduct
them, with the State acting in a regulatory and oversight role. In addition to this
legal and technical oversight role, the obligation on the State should also be to
ensure that the Indigenous Peoples have a say in who is selected to conduct these
assessments, and guarantee the participation of the impacted Indigenous Peoples
in their conduct. Equally importan the State should require project proponent to
allocate funds to an escrow account which can be used by the communities to
47 The Forest People Programme recounts: In the meeting between AMAN and FPP held in Indonesia, Luzon, Mindoro
and Mindanao Indigenous Peoples testified, detailing such abuses. They indicated that the companies and local
government employees frequently got away with abbreviated PFIC procedures because the communities did not know
their rights or the required due process. They indicated that there were times when information was provided in terms
that were not familiar to them and even in languages that they did not understand well. (Forest People Programme,
2007)
48 Some international instruments that refer to interculturality, cultural diversity and cultural rights are UNESCO's
Universal Declaration on Cultural Diversity of 2 November 2001, which establishes that cultural diversity is an ethical
imperative, inseparable from respect for human dignity; the 2005 Convention on the Protection and Promotion of the
Diversity of Cultural Expressions; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities of December 18, 1992, which contains the general rights of ethnic minorities to enjoy their
own culture and demand protection of their ethnic and cultural identity by States and States' obligation to adopt measures
tending to guarantee that ethnic or linguistic minorities receive instruction in their native language; the Declaration on
Race and Racial Prejudice of November 27, 1978, which refers to the right of peoples to cultural self-determination,
the right to protection and preservation of their culture and the right to not be assimilated by other cultures, among
others (Office of the High Commissioner for Human Rights in Mexico, 2011); the Convention on the Rights of the Child,
which includes an article on respect for the culture of indigenous children (Art. 30), 1989.
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