GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
particularly in connection with the development, utilisation or exploitation of
mineral, water or other resources. 3. States shall provide effective mechanisms for
just and fair redress for any such activities, and appropriate measures shall be taken
to mitigate adverse environmental, economic, social, cultural or spiritual impact”
(Art. 32).
Full achievement of the goal of consulting Indigenous Peoples is reflected in the
consent of those consulted. Article 6, number 2 of ILO Convention 169 expresses
it in this way: The consultations carried out in application of this Convention shall
be undertaken, in good faith and in a form appropriate to the circumstances, with
the objective of achieving agreement or consent to the proposed measures.
While acknowledging the different legal significance of International Conventions
and Declarations, there nevertheless is a distinction between the ILO requirement
of consultations 'with the objective of achieving agreement or consent' and the
Declaration's requirement for consultations 'in order to obtain consent' - the
obligation under the former is realized if a good faith consultation aimed at achieving
consent is conducted, regardless of whether or not consent is obtained, provided
the rights affirmed under the Convention are respected. The obligation implied
under the latter is different in that the State is consulting in order to obtain consent.
If it fails to obtain consent it is not clear from the wording that it has met with the
intent of the provision, and that it can consequently precede irrespective of the
outcome of the consultation.
The framing of the requirement in light of the right to self-determination recognized
in the Declaration adds additional weight to the requirement for respect for the
outcomes of consultations held 'in order to obtain consent'.
The word consent is defined as the
action and effect of consenting; from
the Latin “consentiré”, from cum,
with, and sentiré, to feel; to share
the same sentiment, idea. To allow
something or agree that it be done.
It is the manifestation of approving
will between the offer and the act of
acceptance, and one of the essential
requirements set by the codes for
contracts (Cabanellas, 2006). 4
4 Cabanellas, Guillermo. Diccionario Jurídico Elemental. Editorial Heliasta. Buenos Aires. 1 April 2006. (in Spanish)
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