Third Section
Fundamental
elements of
consultation processes
3. Fundamental elements of consultation processes
3.1 Under what circumstances is it necessary to consult Indigenous Peoples?
States have the duty to consult Indigenous Peoples before taking any action that
might affect them (see above 1.2.2).
The ILO Convention 169 specifies some cases in which it is necessary to consult
Indigenous Peoples. For example, Article 15, paragraph 2 affirms that In cases in
which the State retains the ownership of mineral or sub-surface resources or rights
to other resources pertaining to lands, governments shall establish or maintain
procedures through which they shall consult these peoples, with a view to ascertaining
whether and to what degree their interests would be prejudiced, before undertaking
or permitting any programmes for the exploration or exploitation of such resources
pertaining to their lands. Similarly, Art. 17, paragraph 2 states that: The peoples
concerned shall be consulted whenever consideration is being given to their capacity
to alienate their lands or otherwise transmit their rights outside their own community.
This specification of cases does not restrict the general principle established in
Article 6 of Convention 169 and in Article 19 of the United Nations Declaration
that consultations must be conducted with Indigenous Peoples any time administrative
and legislative measures are expected to affect them.
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