GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Therefore, as Convention 169 states that consultations should seek consent, it
means that they should attempt to obtain a shared sentiment or idea between those
consulting and those consulted, in other words find some middle ground and reach
an agreement. Therefore, there must be spaces for transparent and sincere dialogue,
in which effective agreements are genuinely sought. A legitimate result of a good
consultation, conducted effectively and in good faith, is when Indigenous Peoples
arrive at a freely informed final decision using their own methods and representative
institutions.
Free, prior and informed consent has been defined as the collective right of
Indigenous Peoples to participate in decision making and to give or withhold their
consent to activities affecting their lands, territories and resources or rights in
general.5 This definition is consistent with that laid out by the United Nations
Permanent Forum on Indigenous Issues, with respect to the fact that [a]s a crucial
dimension of the right of self-determination, the right of Indigenous Peoples to
free, prior and informed consent is also relevant to a wide range of circumstances.6
1.2.3 Collective ownership of indigenous territories
ILO Convention 169 dictates that States should recognise the rights of ownership
and possession of the peoples concerned over the lands which they traditionally
occupy... In addition, measures shall be taken in appropriate cases to safeguard
the right of the peoples concerned to use lands not exclusively occupied by them,
but to which they have traditionally had access for their subsistence and traditional
activities... (Art. 14, number 1)
The Convention stresses the special importance for the cultures and spiritual values
of the peoples concerned of their relationship with the lands or territories, or both
as applicable, which they occupy or otherwise use, and in particular the collective
aspects of this relationship. (Art. 13, number 1)
For its part, the Inter-American Court of Human Rights has interpreted the right
to property established in the American Convention on Human Rights in the sense
that article 217 of the Convention protects the right to property in a sense which
5 UN-REDD Programme Guidelines on Free, Prior and Informed Consent (2011), citing Colchester, M. and MacKay,
F. (2004). In Search of Middle Ground: Indigenous Peoples, Collective Representation and the Right to Free, Prior and
Informed Consent, Forest Peoples Programme, pp. 8-14.
6 Permanent Forum on Indigenous Issues. Report on the tenth session (16-27 May 2011) E/C.19/2011/14
7 Article 21. Right to Property
1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment
to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or
social interest, and in the cases and according to the forms established by law.
3. Usury and any other form of exploitation of man by man shall be prohibited by law.
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