GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
benefit from any such plan within their territory; c) that no concession will be
issued within [the peoples'] territory unless and until independent and technically
capable entities, with the State's supervision, perform a prior environmental and
social impact assessment.15
With respect to the first of the guarantees mentioned, that of effective participation,
the State has a duty to actively consult with said community according to its
customs and traditions... at the early stages of a development or investment plan,
not only when the need arises to obtain approval from the community, if such is
the case. The consultations must be in good faith, through culturally appropriate
procedures, and they must have the objective of reaching an agreement.16
In this sense, the duty to consult the Peoples before adopting a decision that restricts
their rights emerges as a guarantee that what is to be decided does not imply a
denial of their life as Peoples. The foundation of this duty lies in the right of
Indigenous Peoples to effective participation in the decisions that affect them.17
According to the Court, the participation of a People in the decision making of a
public authority in relation to something that could present a threat to their potential
to continue their life as a People, can only be effective in protecting against such
an eventuality if the consent of the consulted people is a determining factor in the
final decision.
Therefore, the Court has resolved that regarding large-scale development or
investment projects that would have a major impact within the Saramaka territory,
the State has a duty, not only to consult with the Saramakas, but also to obtain
their free, prior, and informed consent, according to their customs and traditions.18
In the Sarayaku case, the Court has been very clear and reiterative with regard to
the idea that consultations should be in good faith and must have the objective of
reaching an agreement (paragraph 177 of the Judgment). The Court is also firm
that the consultation should not be limited merely to a formal process, but rather
it should be viewed as “a true instrument for participation”, “which should respond
to the ultimate purpose of establishing a dialogue between the parties based on
principles of trust and mutual respect, and aimed at reaching a consensus between
15 Paragraph 129. Saramaka v. Suriname case.
16 Paragraph 133. Saramaka v. Suriname case.
17 On this point the Court appears to agree with the Committee Against all Forms of Racial Discrimination, which
recommended that States: d) Ensure that members of Indigenous Peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to their rights and interests are taken without their
informed consent (General recommendation 23).
18 Paragraph 134. Saramaka v. Suriname case.
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