GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
government in matters relating to their internal and local affairs, as well as ways
and means for financing their autonomous functions. (Art. 4)
In the same vein, the ILO Convention 169 recognises as collective rights of the
Indigenous Peoples, respect for their well-being according to their vision of
development as well as the right to decide their own priorities for the process of
development (Art. 7, number 1). Self-determination implies that the consultations
conducted with Indigenous Peoples regarding state decisions that might affect
them, should have the realization of their rights as their goal.
The United Nations Special Rapporteur on the rights of Indigenous Peoples has
indicated that the duty of States to conduct effective consultations with Indigenous
Peoples is based on myriad of universally accepted human rights, and is principally
derived from the fundamental right of Indigenous Peoples to self-determination
and related principles of democracy and popular sovereignty. The right of selfdetermination is a foundational right, without which Indigenous Peoples' human
rights, both collective and individual, cannot be fully enjoyed. Related principles
of popular sovereignty and democracy join in opposition to government by
imposition and uphold the imperative of government by consent.13
2.2 Community ownership by Indigenous Peoples and the right to free, prior
and informed consent
The Inter-American Court of Human Rights has, in the context of indigenous and
tribal peoples, linked the right to property recognised in Article 21 of the American
Convention of Human Rights (see above Note 3) with the right to self-determination
recognised in Article 1 shared by ICCPR and ICESCR (see above Note 1).
In the Saramaka v. Suriname judgement14 , the Inter-American Court considered
that the granting of concessions by the State for extractive activities within
indigenous or tribal territories, constitutes a restriction on the right to private
collective ownership of said peoples. It recognises, however, that the right to
collective ownership of a people over their territory may be restricted to the extent
that this restriction does not amount to a denial of their survival as a tribal people.
In order to ensure this, the State must guarantee the people whose ownership is
being restricted: a) effective participation … in conformity with their customs and
traditions, regarding any development, investment, exploration or extraction plan
(hereinafter “development or investment plan”)within [their] territory; b) a reasonable
13 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,
James Anaya. 15 July 2009. A/HRC/12/34.
14 Inter-American Court. Saramaka v. Suriname case. Judgment of November 28, 2007.
14