GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
This is what Convention 169 refers to when it says that consultations of Indigenous
Peoples should be conducted in a form appropriate to the circumstances (Art. 6,
number 2).
The element of “free” should make it possible for the subjects of the consultation
to decide not to participate, thereby exercising their right to self-determination. It
would be contradictory to autonomy and self-government, elements that make up
self-determination, for peoples to be legally or materially compelled to submit to
consultation processes in which they had decided not to participate.
The requirement to consult in good faith exists in order to obtain the free, prior
and informed consent of Indigenous Peoples, and this should be consider a right
to self-determination to give or withhold their consent, instead of an obligation
imposed upon Indigenous Peoples. Indigenous Peoples are not obligated to
participate in the process of free, prior and informed consultation, but the State is
required to undertake it in good faith.
The requirement to consult in good faith with Indigenous Peoples in order to obtain
their FPIC should be regarded a self-determination right to give or withhold consent
as opposed to an obligation which is imposed on Indigenous Peoples. If they choose
to engage in an FPIC process there is an obligation on both Indigenous Peoples
and the State to do so in good faith.
This should be observed with even greater emphasis in the case of Indigenous
Peoples in isolation. In this respect, the Guidelines for the protection of Indigenous
Peoples in isolation and initial contact in the Amazon region, Gran Chaco and the
Eastern Region of Paraguay32 mention that in the case of Indigenous Peoples in
voluntary isolation, the right to consultation with the goal of obtaining their prior,
free and informed consent should be interpreted keeping in mind their decision to
stay isolated and the need for greater protection of Indigenous Peoples in voluntary
isolation given their vulnerable situation, which may be reflected in their decision
to not use this type of participation and consultation mechanisms (Paragraph 68).
4.1.2 Community self-consultations
On occasions, local communities affected by state decisions choose the option of
organising self-consultations to make a declaration, of their own initiative, on these
decisions, which they have not been consulted on.
32 Office of the United Nations High Commissioner for Human Rights. Geneva. February 2012. (in Spanish)
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