GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT Given the absence of this equality of arms in practice, as a result of the enormous power asymmetries between Indigenous Peoples on one hand, and the State and project proponents on the other, it is fundamental that the State guarantee respect for Indigenous Peoples' conception of consultation and consent and that control over the procedural and substantive aspects of the process be maintained by Indigenous Peoples. F. Protocols for Free, Prior and Informed Consent of Indigenous Peoples Some Indigenous Peoples have documented their own consultation and FPIC protocols specifying how their consent must be sought in accordance with their customary laws and practices, who is to be consulted, what their representative structures are, and the manner in which they will provide or withhold consent.62 This concept of indigenous community protocols is promoted under the Nagoya protocol to the Convention on Biological Diversity on access and benefit sharing. Such protocols may extend to cover multiple communities or peoples and constitute a pro-active exercise of the right to self-determination63 Where an indigenous community or people, or group of indigenous communities or peoples, have developed such protocols as a pro-active exercise of their right to self-determination, the State and all third parties seeking to engage with Indigenous Peoples, should adhere to the requirements specified therein. The State should ensure that the legislative and institutional framework accommodates these protocols thereby guaranteeing culturally appropriate consultation and consent seeking processes. G. Adopt the corresponding decision As Article 6 of ILO Convention 169 and Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples indicate, the object of processes of consultation is to reach an agreement or obtain free, prior and informed consent on the proposed measures. As noted earlier the wording and intent of the Declaration in relation to the affirmation of a consent requirement goes beyond that of the ILO C169, in light of the former's recognition of Indigenous Peoples' right to self-determination. Consultations with Indigenous Peoples, therefore, must be aimed at obtaining free, prior and informed consent. If it is obtained, the appropriate public authority will adopt the decision, adjusting it according to the changes proposed by those consulted as a condition for their consent. If this is not obtained, the process is truncated and 62 Examples include the FPIC Manifesto of the Subanen of Zamboanga in Mindanao the Philippines and the Kitchenuhmaykoosib Inninuwug a Canadian first nation community in Northwestern Ontario. 63 In the case of the Subanen of Zamboanga the protocol covered most of the Subanen communities of the Subanen people who number approximated 300,000 in total. 47

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