GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
employ independent experts of their own choosing to validate the findings of these
assessments. The nature of the impact assessment will vary according to the
particular project phase with different information requirements arising, for example,
prior to seeking consent for exploration and exploitation.
4.4 Obtained in good faith
The three United Nations mechanisms specialised in the rights of Indigenous
Peoples, the Special Rapporteur, the Expert Mechanism and the Permanent Forum
have highlighted this characteristic of consent.
The first has manifested that: A good faith effort towards consensual decisionmaking of this kind requires that States “endeavour to achieve consensus on the
procedures to be followed; facilitate access to such procedures through broad
information; and create a climate of confidence with Indigenous Peoples which
favours productive dialogue”. The creation of a climate of confidence is particularly
important in relation to Indigenous Peoples, “given their lack of trust in State
institutions and their feeling of marginalisation, both of which have their origins
in extremely old and complex historic events, and both of which have yet to be
overcome”.49
The second, for its part, highlights that consultations should be undertaken in good
faith and in a form appropriate to the relevant context. This requires that consultations
be carried out in a climate of mutual trust and transparency.50 And the third says,
with reference to consultations of Indigenous Peoples, that: The parties should
establish a dialogue allowing them to find appropriate solutions in an atmosphere
of mutual respect in good faith, and full and equitable participation.
The creation of an environment of trust between the consulters and the consulted
appears as a key factor for the construction of consent. That environment is only
possible so far as mutual respect is cultivated, which is founded on one hand on
the recognition of Indigenous Peoples' character as subjects of rights, and on the
other hand on the openness they show to hearing what the State has to propose.
This can only be achieved if the objective of the consultation is to gain free, prior
and informed consent. If those consulted perceive that the objective is other, that
there is no genuine commitment by the consulting State to create conditions for
agreement with those consulted, if the consultation is on immovable decisions that
49 A/HRC/12/34; page 19; paragraph 50.
50 A/HRC/18/42; page 19; paragraph 9.
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