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Arizona Journal of International and Comparative Law
Volume 22, Number 1, Spring 2005
Margaret Satterthwaite and Deena Hurwitz
INDIGENOUS PEOPLES' PARTICIPATORY RIGHTS IN RELATION TO DECISIONS ABOUT NATURAL RESOURCE EXTRACTION: THE MORE FUNDAMENTAL ISSUE OF WHAT RIGHTS INDIGENOUS PEOPLES HAVE IN LANDS AND RESOURCES
It has become a generally accepted principle in international law that indigenous peoples should be consulted as to any decision affecting them. This norm is reflected in articles 6 and 7 of I.L.O. Convention No. 169, and has been articulated by United Nations treaty supervision bodies in country reviews and in examinations of cases concerning resource extraction on indigenous lands. The existence of a duty to consult indigenous peoples is also generally accepted by states in their contributions to discussions surrounding the draft declarations on indigenous peoples' rights, at both the United Nations and in the Inter-American system. This widespread acceptance of the norm of consultation demonstrates that it has become part of customary international law. Ambiguity remains, however, as to the extent and content of the duty of consultation owed to indigenous peoples. In particular, there is much debate as to whether indigenous peoples' right to participation in decisions affecting them extend to a veto power over state action. Logically, the extent of the duty and thus the level of consultation required is a function of the nature of the substantive rights at stake. Thus the more critical issue underlying the debate over the duty to consult is the nature of indigenous peoples' rights in lands and resources. My remarks will focus on this question.
INDIGENOUS PEOPLES' RIGHT TO FREE, PRIOR, INFORMED CONSENT: REFLECTIONS ON CONCEPTS AND PRACTICE
Our topic is one that is debated intensely in many indigenous and grassroots communities around the world, in countries that include the Philippines, Canada, Papua New Guinea, Peru, India, and Australia, in the board rooms of the biggest oil and mining corporations, the World Bank and the International Finance Corporation, and in many bodies of the United Nations. In January 2005, under the auspices of the UN Permanent Forum on Indigenous Issues, an inter-agency workshop of UN bodies met in New York to examine their current policies and practices related to "free, prior, informed consent" ("FDIC"). Meanwhile, the UN Working Group on Indigenous Populations, under its standard-setting mandate on the rights of indigenous peoples, is drafting a legal commentary and guidelines for its implementation. FPIC is on the agenda of several international organizations: the Conventioir on Biological Diversity, the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO) in relation to access and benefits-sharing of biological resources and associated traditional knowledge, the World Conservation Union in relation to the establishment of parks and protected areas, and other multilateral banks and development and financing agencies with respect to their resettlement policies and other projects affecting indigenous peoples.