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III. Obligations Arising from the Human Rights of Particular Groups

4.2 Right to free, prior, and informed consent

Indigenous peoples have the right to be consulted and to free, prior, and informed consent regarding matters affecting them. This includes the right to be consulted on drug control measures and national and international agreements that may affect their lands, resources, cultures, and identities, as well as the right to give or withhold their consent.

In accordance with this right, States should:

i. Consult and cooperate in good faith with relevant indigenous peoples, through their representative institutions, in order to obtain their free, prior, and informed consent before adopting or implementing any drug control measure that may affect them or their territories. Ensure that consultations continue as needed throughout the period of implementation.

ii. Adopt legislative, administrative, and other measures necessary to recognise and ensure the right of indigenous peoples to be effectively consulted, in accordance with their traditions and customs, and the right to give or withhold their free, prior, and informed consent with regard to drug control measures that may affect them or their territories.

Commentary:

States’ obligation to consult in good faith with indigenous peoples with the objective of securing their free, prior, and informed consent on matters that affect their rights and interests has repeatedly been affirmed in international and regional instruments,[819] by UN treaty bodies,[820] and by other UN human rights mechanisms.[821] Regional human rights courts and commissions have also interpreted the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the American Declaration of the Rights and Duties of Man to recognise States’ duties and obligations to secure free, prior, and informed consent.[822] Where the rights implicated are essential to the survival of indigenous groups as distinct peoples and the foreseen impacts on the exercise of the rights are significant, indigenous consent to the impacts is an actual requirement – and not simply an objective – of consultations.[823]

The Special Rapporteur on the rights of indigenous peoples has recommended that ‘indigenous peoples that might be affected should be consulted on anti-drug policies and operations that involve the presence of national or foreign police or armed forces’ and has noted that ‘guarantees should be given that the lives, cultures, lands and natural resources of the indigenous peoples are not violated as a result of such operations. Abuses committed by drugs squad officials must be investigated and punished’.[824]

  • 819. ^

    International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), arts. 6 (1, 2), 15(2), 17(2), 22(3), 27(3), 28; UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007), arts. 10, 11(2), 19, 28(1), 29(2), 30(1), 32(2); American Declaration on the Rights of Indigenous Peoples, OAS Doc. AG/RES.2888 (2016), art. 29(4); Convention on Biological Diversity (1992), art. 8(j); see also International Labour Organization, Report of the Committee Set Up to Examine the Representation Alleging Non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (2001), para. 31.

  • 820. ^

    Human Rights Committee, Communication No. 1457/2006: Ángela Poma v. Peru, UN Doc. CCPR/C/95/D/1457/2006 (2009), paras. 7.2-7.6; Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, annex V (1997), art. 4(d); Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, UN Doc. CERD/C/CAN/CO/18 (2007), paras. 15, 25; Committee on the Elimination of Racial Discrimination, Concluding Observations: Indonesia, UN Doc. CERD/C/IDN/CO/3 (2007), para. 17; Committee on the Elimination of Racial Discrimination, Concluding Observations: New Zealand, UN Doc. CERD/C/NZL/CO/17 (2006), para. 20; Committee on the Elimination of Racial Discrimination, Concluding Observations: Democratic Republic of the Congo, UN Doc. CERD/C/COD/CO/15 (2007), para. 18; Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, UN Doc. CERD/C/USA/CO/6 (2008), para. 29; Committee on the Elimination of Racial Discrimination, Concluding Observations: Ecuador, UN Doc. CERD/C/ECU/CO/19 (2008), para. 16; Committee on the Elimination of Racial Discrimination, Concluding Observations: Sweden, UN Doc. CERD/C/SWE/CO/18 (2008), para. 19; Committee on the Elimination of Racial Discrimination, Concluding Observations: Namibia, UN Doc. CERD/C/NAM/CO/12 (2008), para. 18; Human Rights Committee, Concluding Observations: Chile, UN Doc. CCPR/C/CHL/CO/5 (2007), para. 19; Human Rights Committee, Concluding Observations: Costa Rica, UN Doc. CCPR/C/CRI/CO/5 (2007), para. 5; Human Rights Committee, Concluding Observations: Panama,UN Doc. CCPR/C/PAN/CO/3 (2008), para. 21; Human Rights Committee, Concluding Observations: Botswana, UN Doc. CCPR/C/BWA/CO/1 (2008), para. 24; Human Rights Committee, Concluding Observations: Nicaragua, UN Doc. CCPR/C/NIC/CO/3 (2008), para. 21.

  • 821. ^

    Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, UN Doc. A/HRC/12/34 (2009), paras. 36–57; Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, UN Doc. A/HRC/21/47 (2012), para. 65; Report of the Special Rapporteur on the Right to Food, Olivier De Schutter: Mission to Mexico, UN Doc. A/HRC/19/59/Add.2 (2012).

  • 822. ^

    African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communication No. 276/03 (2009), paras. 226, 291; African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Kenya, Application No. 006/2012 (2017); Inter-American Court of Human Rights, Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgement of 28 November 2007, Series C No. 172, paras. 127, 129, 133–134, 158; Inter-American Court of Human Rights, Saramaka People v. Suriname, Interpretation of the Judgement on Preliminary Objections, Merits, Reparations and Costs, Judgement of 12 August 2008, Series C No. 185, paras. 17–18, 29.

  • 823. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, UN Doc. A/HRC/21/47 (2012), para. 65.

  • 824. ^

    Report of the Special Rapporteur on the Rights of Indigenous Peoples: Visit to Honduras, UN Doc. A/HRC/33/42/Add.2 (2016), para. 91; see also Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Colombia, UN Doc. E/CN.4/2005/88/Add.2 (2004), para. 50.

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