Indigenous Peoples’ Rights to Sacred Sites and Traditional Cultural Properties and the Role of Consultation and Free, Prior and Informed Consent

Abstract

Sacred sites and traditional cultural properties are crucial to the preservation of indigenous peoples’ culture and society, and are increasingly recognised by international and state law and non-governmental entities. This article explores the various legal and non-legal documents addressing sacred sites and traditional cultural properties, and the duties and responsibilities imposed on businesses involved in the resource extraction industries: conducting consultation with affected indigenous peoples and obtaining, at times, their free, prior and informed consent for the project. While by no means exhaustive, this broad survey encompasses laws and court decisions from international bodies, the United States and examples from other countries, international guidelines, industry standards and laws of indigenous peoples. It concludes that conducting good faith, socially appropriate and respectful consultation with indigenous peoples prior to conducting extraction activities that will or may affect sacred sites and traditional cultural properties is required not only by the law, but by good business practice. Consultation, obtaining free, prior and informed consent, and reaching formalised agreements result in the avoidance of protracted public litigation, and an improved business reputation when commencing future development projects on indigenous lands.

Additional information

Notes on contributors

Stuart R Butzier

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Stuart R Butzier is a shareholder in the Santa Fe, New Mexico, office of Modrall Sperling Roehl Harris & Sisk. He has practised with the firm for 25 years in the areas of natural resources, mining, public lands and environmental law. He can be contacted by email at [email protected].

Sarah M Stevenson

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Sarah M Stevenson is an associate in the Albuquerque, New Mexico, office of Modrall Sperling Roehl Harris & Sisk. She has a juris doctor from Fordham University School of Law, where her studies focused on international human rights law, including international indigenous rights. She also has a master’s of arts in international political economics and development from Fordham University Graduate School of Arts and Sciences. Her current practice focuses on Native American law, water law and commercial litigation. She can be contacted by email at [email protected].