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ILO Convention No. 169 remains the only treaty open for ratification specifically and exclusively dedicated to the promotion and protection of indigenous peoples' rights. Its cornerstone is the State's duty to consult indigenous peoples. This article presents the history of the emergence of the duty to consult indigenous peoples in ILO Convention No. 169, its normative content and related guidance from the ILO supervisory bodies. It further examines developments with regard to this duty in the UN and the Inter-American systems and explores the relationship between such developments and ILO Convention No. 169. The paper revisits State practice of countries that have ratified that Convention, illustrating progress and challenges relating to the implementation of regulatory frameworks for consultation with indigenous peoples.

There is existing tension within many Aboriginal communities between economic development and preservation of traditional lands for the continued practice of traditional activities. The "duty to consult" doctrine has has become an important mechanism by which these concerns were identified and addressed (when possible) prior to development. This is a legal requirement that is rooted in the Constitution Act (1982) and subsequent legal case law that has further defined and outlined requirements under this obligation. This article describes the process that was carried out to advance the proposed Kabinakagami River Hydro Project Class Environmental Assessment in Northern Ontario, Canada with an emphasis on the approach to Aboriginal consultation. This project is unique because the co-proponent of the project is an Aboriginal community, with several neighbouring Aboriginal communities potentially affected by the project. This project raises questions about the approach to carrying out the duty to consult in an effective way. An evaluative framework was developed to examine timeline, information, means, and flexibility and transparency of the process to highlight shortcomings in the process and make recommendations for improvement.

Indigenous peoples have long argued that states must obtain their free, prior and informed consent ('FPIC') in order to undertake resource development within their territories. They have sought international recognition of this principle in order to protect their territories and to exercise their inherent authority over them. However, many states have opposed this principle and its status remains controversial. In Saramaka v Suriname, the Inter-American Court of Human Rights ('the Court') injected a new perspective into this debate. Under the Court's contextual model of 'effective participation', states must always consult Indigenous peoples regarding development projects within their territories. In addition, an obligation to obtain FPIC arises in relation to high impact development activities. The state's obligations are therefore linked to the act's potential impact.The Saramaka model has influenced international understandings of Indigenous peoples' right to participate in decision-making. Nevertheless, significant gaps and tensions exist within this model. It is therefore unclear whether the model is capable of addressing the concerns that have inspired Indigenous peoples to seek recognition of the FPIC principle.This thesis examines two important unresolved issues. The first concerns the question of who is responsible for devising a consultation procedure. The second is whether the presence of pre-existing impact affects the application of the FPIC trigger test. Each issue can have a profound effect on the operation of the Saramaka model.To explore potential future directions for the Saramaka model, this thesis undertakes a comparative study of how these issues are addressed in Canada and Australia. Both the Canadian duty to consult doctrine and the Australian right to negotiate regime employ similar contextual devices to determine the extent of a non-Indigenous government's obligations. The thesis finds that these jurisdictions contain beneficial features, which the Court can build upon. However, in relation to the two identified issues, both jurisdictions have adopted positions that potentially privilege non-Indigenous interests. The thesis proposes steps that the Court should take to avoid reproducing these problems within its model, with the objective of supporting Indigenous peoples to protect their territories and exercise their authority as far as possible within a contextual framework.