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22 Ariz. J. Int'l & Comp. L. 7 (2005)
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

handle is hein.journals/ajicl22 and id is 23 raw text is: 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 James Anaya' I. INTRODUCTION 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. II. INTERPRETATIONS ADVANCED BY INDIGENOUS PEOPLES Indigenous peoples have repeatedly and consistently advanced plenary conceptions of their rights over lands and resources within their traditional territories. In asserting property rights, indigenous peoples seek protection of economic, jurisdictional, and cultural interests, all of which are necessary for them to pursue their economic, social, and cultural development. Indigenous peoples rights over land flow not only from possession, but also from indigenous peoples' articulated ideas of communal stewardship over land and a deeply felt spiritual 1. James J. Lenoir Professor of Human Rights Law and Policy, University of Arizona James E. Rogers College of Law.

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