States of America,214 or outside the region such as New Zealand.215 In other words, the obligation to consult, in addition to being a treaty-based provision, is also a general principle of international law. 165. In other words, nowadays the obligation of States to carry out special and differentiated consultation processes when certain interests of indigenous peoples and communities are about to be affected is an obligation that has been clearly recognized. Such processes must respect the particular consultation system of each people or community, so that it can be understood as an appropriate and effective interaction with State authorities, political and social actors and interested third parties. 166. The obligation to consult the indigenous and tribal communities and peoples on any administrative or legislative measure that may affect their rights, as recognized under domestic and international law, as well as the obligation to guarantee the rights of indigenous peoples to participate in decisions on matters that concern their interests, is directly related to the general obligation to guarantee the free and full exercise of the rights recognized in the Convention (Article 1(1)). This entails the duty to organize appropriately the entire government apparatus and, in general, all the organizations through which public power is exercised, so that they are capable of legally guaranteeing the free and full exercise of those rights.216 This includes the obligation to structure their laws and institutions so that indigenous, autochthonous or tribal communities can be consulted effectively, in accordance with the relevant international standards.217 Thus, States must incorporate those standards into prior consultation procedures, in order to create channels for sustained, effective and reliable dialogue with the indigenous communities in consultation and participation processes through their representative institutions. 511, para. 25). Regarding the obligation to consult, the Court established that the nature and scope of the obligation to consult will vary depending on the circumstances and, in all cases, the obligation to consult must be exercised in good faith and with the intention of considering the interests of the indigenous population whose lands are at stake. It also found that the same consultation arises whenever the State seeks to establish restrictions on indigenous ownership (Haida v. British Columbia, para. 35). Furthermore, the obligation to conduct a consultation involves a process of listening with an open mind to what the indigenous group has to say and being prepared to change the original proposal. Similarly, the Supreme Court of Canada ruled that the obligation to consult was a State obligation that increased in proportion to the severity of the impact on the right in question (Haida v. British Columbia, paras. 39 and 68). Finally, the Court also determined that the State’s proposed intervention on indigenous territory does not require an immediate impact on the territories or resources of the indigenous communities in order for the duty to consult to arise; it is sufficient that the State’s activity potentially will have a negative impact on the territorial rights of the indigenous community (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council [2010] 2 S.C.R 650 paras 31 and ff.) 214 In the case of the United States Ninth Circuit Appeals Court, the Court held that the concept of consultation requires prior discussion with a community leader or executive or one with those who have explicit authority to represent the tribe before the agency (Hoopa Valley Tribe v. Christie, 812 F.2d 1097 (1986)). In a 1979 case, the Court established that the lack of prior consultation cannot be remedied by a meeting after the decision has been taken (Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (1979)). Also, see Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395 (D.S.D. 1995); Klamath Tribes v. U.S., 1996 WL 924509; Confederated Tribes and Bands of the Yakama Nation v. U.S. Department of Agriculture, 2010 WL 3434091, and Quechan Tribe v. Department of Interior, 755 F. Supp. 2d 1104. 215 New Zealand Maori Council v. Attorney General (1987) 1 NZLR 641; Gill v. Rotorua District Council [1993] 2 NZRMA 604; Haddon v. Auckland Regional Council [1993] A77/93, and Aqua King Limited v. Marlborough District Council [1995] WI9/95. 216 Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 166, and Case of the Barrios Family v. Venezuela. Merits, reparations and costs. Judgment of November 24, 2011. Series C No. 237, para. 47. 217 In that regard, article 6.1 of ILO Convention No. 169 states that “[i]n applying the provisions of this Convention, governments shall: a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly [and] b) establish means by which the peoples concerned can freely participate, […] at all levels of decisionmaking in elective institutions and administrative and other bodies responsible for policies and programs which concern them.” In addition, Article 36.2 of the United Nations Declaration on the Rights of Indigenous Peoples establishes that “States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.” Article 38 of this instrument establishes that “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.” 45