This first report of the Independent Expert, to be submitted to the UN Human Rights Council at its 22nd session in March 2013, is intended to place the mandate in a historical context, present some of the outstanding issues relevant to the relationship between human rights and the environment, and describe the current and planned programme of activities. The Independent Expert explains that many issues related to the obligations that human rights law imposes regarding environmental protection need greater study and clarification. His first priority is therefore to provide greater conceptual clarity to the application of human rights obligations related to the environment, taking an evidence-based approach to determining the nature, scope and content of these obligations.
It is noted in the report that indigenous peoples are at particular risk from many kinds of environmental damage because of their cultural and economic dependence on environmental resources. Their procedural rights have received detailed recognition in international instruments, for instance ILO Convention 169 concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries includes a general requirement that governments consult with the peoples concerned whenever giving consideration to measures that may affect them directly. More specifically, it provides for the assessment of environmental impacts of proposed development activities and makes clear that the rights of indigenous peoples to the natural resources pertaining to their lands include the right to participate in the use, management and conservation of these resources. Similarly, the UN Declaration on the Rights of Indigenous Peoples recognizes the right of indigenous peoples to participate in decision-making on matters that would affect their rights and provides that States shall consult with the indigenous peoples concerned to obtain their free, prior and informed consent before adopting and implementing measures that may affect them, particularly with respect to projects involving the development, use or exploitation of natural resources. The Inter-American Court of Human Rights has stated that the State must consult with the community regarding any proposed concessions or other activities that may affect their lands and natural resources, ensure that no concession is issued without a prior assessment of its environmental and social impacts and guarantee that the community receives a reasonable benefit from any such plan if approved. With respect to “large-scale development or investment projects that would have a major impact”, the State must do more than consult; it must obtain the community’s “free, prior, and informed consent, according to their customs and traditions”.