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V. PA RT I C I PAT I O N , C O N S U LTAT I O N A N D C O N S E N T
The
UN Declaration on the Rights of Indigenous Peoples, also focuses on
consultation and participation and establishes that the purpose of the consultation is to
achieve free, prior and informed consent. Moreover, the Declaration recognizes that
indigenous peoples, in exercising their right to self-determination, have the right to autonomy
or self-government in matters relating to their internal and local affairs article 4.
Article 5 Indigenous peoples have the right to maintain
and strengthen their distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully
, if they so choose, in the political, economic,
social and cultural life of the State. Article 18
Indigenous peoples have the right to participate in decision-making in matters
which would affect their rights
, through representatives chosen by themselves in
accordance with their own procedures, as well as to maintain and develop their own
indigenous decision-making institutions. Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free, prior and informed
consent
before adopting and implementing legislative or administrative measures that
may affect them. Article 23
Indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining health, housing
and other economic and social programmes affecting them and, as far as possible, to
administer such programmes through their own institutions.
The UN Development Group UNDG Guidelines on indigenous peoples’ issues provides the
following
“Elements of Free, Prior and Informed Consent” UNDG 2008: p. 28:
Free should imply no coercion, intimidation or manipulation;
Prior •
should imply consent has been sought suficiently in advance of any authorization
or commencement of activities and respect time requirements of indigenous consultation
consensus processes; Informed
• – should imply that information is
provided that covers at least the following aspects:
a. The nature, size, pace, reversibility and scope of any proposed project or activity;
b. The reasons or purpose of the project andor activity;
c. The duration of the above; d.
The locality of areas that will be affected;
e.
A preliminary assessment of the likely economic, social, cultural and environmental
impact, including potential risks and fair and equitable beneit sharing in a context that
respects the precautionary principle; f. Personnel likely to be involved in the
execution of the proposed project including indigenous peoples, private sector staff,
research institutions, government employees and others
g. Procedures that the project may entail.
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Consent •
Consultation and participation are crucial components of a consent process.
Consultation should be undertaken in good faith. The parties should establish a dialogue
allowing them to ind appropriate solutions in an atmosphere of mutual respect in good
faith, and full and equitable participation. Consultation requires time and an effective
system for communicating among interest holders. Indigenous peoples should be
able to participate through their own freely chosen representatives and customary
or other institutions. The inclusion of a gender perspective and the participation
of indigenous women is essential, as well as participation of children and youth as
appropriate. This process may include the option of withholding consent. Consent
to any agreement should be interpreted as indigenous peoples have reasonably
understood it.
5.2. COmmENTS By THE ILO SUPERVISORy BODIES: CONSULTATION AND PARTICIPATION
Many of the cases addressed by the ILO supervisory bodies concern alleged failure by governments to
undertake appropriate processes of consultation with indigenous peoples as stipulated by Article 6
of Convention No. 169. A number of these cases particularly address the situation of consultation
regarding the exploitation of natural resources see section 8.
Committee of Experts, General Observation on Convention No. 169, 2008
“With regard to consultation, the Committee notes two main challenges: i ensuring that
appropriate consultations are held prior to the adoption of all legislative and administrative
measures which are likely to affect indigenous and tribal peoples directly; and ii including
provisions in legislation requiring prior consultation as part of the process of
determining if concessions for the exploitation and exploration of natural resources are to be
granted.”
Mexico: Consultations on constitutional reform In 2001, a complaint was brought to the ILO,
alleging that Mexico had violated Article 6 of the Convention in the legislative procedure leading to the
approval of the Decree on Constitutional Reform in the Areas of Indigenous Rights and Culture. In this
context, an ILO tripartite committee see section 14.6. was established to examine the process that
led to the adoption of the constitutional reforms.
The Committee observed that, “from 1992 until the present time, relations between the Government and
indigenous peoples have been extremely complex, with an undercurrent of conlict at times manifest, at
times latent, and on some occasions even violent.”
The Committee noted the “efforts made by the Government and the organizations which
participated in this process to have a dialogue and arrive at satisfactory solutions, but it cannot ignore
the dificulties arising from this process and the various interruptions to communication between the
parties, which did not help to create an atmosphere of trust. It has also noted the breakdown in dialogue
prior to the contested legislative process.”
According to the complainants, the constitutional reform process did not take account of the
consultation process laid down in Convention No. 169 and they stated that; “at the risk of distorting
the right of indigenous peoples to consultation, a conceptual distinction must be made between
an act of consultation which conforms to the Convention and any act of nominal consultation,
information or public hearing carried out by the public authorities”.
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The Governing Body noted that, [I]n view of the diversity of the indigenous peoples,
the Convention does not impose a model of what a representative institution should involve, the
important thing is that they should be the result of a process carried out by the indigenous peoples
themselves. But it is essential to ensure that the consultations are held with the institutions that are
truly representative of the peoples concerned. As the Governing Body has already established in a
previous case, “... the principle of representativity is a vital component of the obligation of consultation.
... it could be dificult in many circumstances to determine who represents any given community.
However, if an appropriate consultation process is not developed with the indigenous and
tribal institutions or organizations that are truly representative of the communities affected, the
resulting consultations will not comply with the requirements of the Convention.
In this context, the Committee noted the dificulty represented by consultations of
general scope, as is the case for a constitutional reform, and of national application, which in
this case also affect approximately 10 million indigenous peoples. Likewise, it notes that the
consultations carried out before Congress and the states led to feelings of frustration and exclusion
on the part of the indigenous peoples. It is also aware that the differences in values, ideas, times,
reference systems, and even in ways of conceiving consultation between the interlocutors add to the
complexity of the task. In that connection, the establishment in Mexico of clear criteria as to the
form of consultations and as to representativity could have made it possible to obtain more
satisfactory results for both parties. Furthermore, it acknowledges that both the National Congress
and the state legislatures were not unaware of the opinions of the indigenous peoples with respect to
the reforms, but were not obliged to accept them. It would have been helpful if they had established a
mechanism to try to achieve agreement or consent concerning the measures proposed.
The Committee added that it was clear throughout the process of the adoption of
the Convention, and it has been reafirmed by the supervisory bodies, that consultation does
not necessarily imply that an agreement will be reached in the way the indigenous peoples prefer.
Everything appears to indicate that the views of the complainants as to what would constitute
full consultation would, to all appearances, have given rise to a more complete set of consultations,
which is why it is appropriate to recall them here as pertinent proposals as to how consultations
should be carried out in other similar situations. Nevertheless, the Committee cannot conclude that
such a list of “best practices” is actually required by the Convention, even though they would have
constituted an excellent way of applying fully the principles established in Article 6.
Finally, the Committee considered that “the climate of confrontation, violence and lack of mutual trust
stopped the consultations from being conducted more productively. It is imperative in all consultations
to establish a climate of mutual trust, but all the more so with respect to indigenous peoples, given
their lack of trust in state institutions and their feeling of marginalization, both of which have their origins in
extremely old and complex historic events, and both of which have yet to be overcome.”
Governing Body, 289
th
Session, March 2004, Representation under article 24 of the ILO
Constitution, Mexico, GB.289173
Guatemala: Consultation as the institutional basis for dialogue
In 2005, a report submitted to the Committee of Experts by an indigenous organization stated
that although efforts had been made sporadically towards providing an institutional basis for
participation of indigenous peoples, there was no coherent policy on institutions that combined
political, administrative and inancial measures to attain the objectives of the Convention.
The report indicated that “participation continues to be symbolic and the political and electoral system
remains an instrument of exclusion” and further that “there is no speciic institutional machinery
for consultation and that, during the previous administration, 31 concessions were granted for
the exploitation of mineral resources and 135 for exploration, with no prior consultation with the
indigenous peoples as to the viability of such activities or their environmental impact”.
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The Committee of Experts emphasized that “the provisions on consultation, particularly Article 6,
are the core provisions of the Convention and the basis for applying all the others. Consultation
is the instrument that the Convention prescribes as an institutional basis for dialogue, with a view
to ensuring inclusive development processes and preventing and settling disputes. The aim of
consultation as prescribed by the Convention is to reconcile often conlicting interests by means of
suitable procedures”. CEACR, 76
th
Session, 2005, Observation, Guatemala, published 2006.
Colombia: Consultation on legislative measures concerning consultation
In 1999, a complainant alleged that the process of promulgation as well as the content of Decree
No. 1320, which establishes provisions for the process of consultation with the indigenous and
black communities prior to exploitation of renewable natural resources found within their territories, was
not in conformity with the obligation to undertake consultations with indigenous peoples under
Convention No. 169.
In its response, the ILO Governing Body underlined that the concept of prior consultation established in
Article 6 must be understood within the context of the general policy set out in Article 21 and 2b of
the Convention, which stipulate that Governments shall develop coordinated and systematic action
to protect the rights of indigenous peoples and guarantee respect for their integrity, including the
full realization of their social, economic and cultural rights, their social and cultural identity, their customs
and traditions and their institutions.
The Governing Body noted that the right of indigenous peoples to be consulted whenever
consideration is given to legislative or administrative measures which may affect them directly, as well as
the obligation of the Government to carry out prior consultation with the peoples affected, is “derived
directly from Convention No. 169, not from the recognition of that right by national legislation”.
Considering that the purpose of Decree No. 1320 was to regulate prior consultation before exploitation
of resources within the territory of indigenous and black communities and thus constituted a legislative
measure that is likely to affect the communities directly, the Committee noted that there is a clear
“obligation to consult the country’s indigenous peoples before the adoption and promulgation of
the Decree in question” and further that “issuing Decree No. 1320 without prior consultation was not
compatible with the Convention”.
The Committee further emphasized that: The adoption of rapid decisions should not be to the
detriment of effective consultation for which suficient time must be given to allow the country’s indigenous
peoples to engage their own decision-making processes and participate effectively in decisions
taken in a manner consistent with their cultural and social traditions. Although the Committee does not
claim that these traditions are the only ones that can serve as a basis for consultations in accordance with
the Convention, it does consider that if they are not taken into consideration, it will be impossible to meet
the fundamental requirements of prior consultation and participation.
Governing Body, 282
nd
Session, November 2001, Representation under article 24 of the ILO
Constitution, Colombia, GB.282143.
5.3. PRACTICAL APPLICATION: CONSULTATION AND PARTICIPATION
