GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
ineffective and cannot be completed. The State must decide, together with those
consulted, on an appropriate time to resume talks or to accept the rejection of the
proposal for which it was unable to obtain consent.
In this regard, the CERD has emphasised in several concluding observations and
Early Warning Urgent Action letters the need for States to obtain said consent. An
example of this is the concluding observation made by CERD on Ecuador in 2003,
in which it noted that, As to the exploitation of the subsoil resources of the traditional
lands of indigenous communities, the Committee observes that merely consulting
these communities prior to exploiting the resources falls short of meeting the
requirements set out in the Committee's general recommendation XXIII on the
rights of Indigenous Peoples. The Committee therefore recommends that the prior
informed consent of these communities be sought.64 Consistent with its focus on
the need to obtain consent CERD's 2010 Early Warning Urgent Action letter to
India requested information on measures taken to 'in order to seek and clearly and
fully obtain [the Dongria Kondh peoples] free prior and informed consent to these
mining activities'65
As outlined earlier good faith consultation and FPIC processes can only occur
where an environment of mutual trust exists within which Indigenous Peoples are
free to deliberate on their decision-making procedures and structures. In order to
establish such an environment adequate space, outside the context of a particular
measure or project consultation, should be provided for the peoples to formalize,
develop or strengthen these procedures, representative structures, where appropriate
at a pan community or people level. This is particularly relevant in the context of
natural resource exploitation, and implies a moratorium of sorts during which time
an environment is established in which the State can reach an agreement with
Indigenous Peoples as to how their particular and diverse conceptions of consultations
and consent interface with the State regulatory framework and institutional apparatus.
The State is thereby provided with the opportunity to make the appropriate
modification to this apparatus in order to ensure that consultation and FPIC processes
are culturally appropriate and consistent with the exercise of the right to selfdetermination. This overarching engagement with Indigenous Peoples to create an
environment within which FPIC process can be realized is consistent with Article
2 of ILO Convention 169 which requires that Governments shall have the
responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to
guarantee respect for their integrity.
64 CERD, Concluding observations for Ecuador, 2003, para. 16; also see CERD, Concluding observations for Suriname,
2004.
65 CERD Early Warning Urgent Action letter to India 12th March 2010
48