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5.1. CONSULTATION AND PARTICIPATION: THE CORNERSTONE Of THE CONVENTION
The establishment of appropriate and effective mechanisms for the consultation of indigenous
and tribal peoples regarding matters that concern them is the cornerstone of Convention No. 169, yet
remains one of the main challenges in fully imple- menting the Convention in a number of countries.
1
The Convention requires that indigenous peoples are able to effectively participate in decision-making
processes which may affect their rights or interests. The establishment of processes of consultation is
an essential means of ensuring effective indigenous peoples’ participation in decision-making. Thus,
Ar- ticles 6 and 7 on consultation and participation
are key provisions of Convention No. 169 and the “basis for applying all the others”, though
a number of other Articles also make reference to consultation and participation.
2
The principles of consultation and participation should be read in
conjunction with the provisions on coordinated and systematic action to implement indigenous peoples’
rights see section 3.1.
1 Committee of Experts, General Observation on Convention Nol. 169, 79
th
Session, 2008, published 2009. 2 See, for example, Committee of Experts, 76
th
Session, 2005, Observation, Guatemala, published 2006, para.6
ILO Convention No. 169, Articles 6 7: Article 6.1
In 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;
b establish means by which these peoples can freely participate, to at least
the same extent as other sectors of the population, at all levels of decision-making
in elective institutions and administrative and other bodies responsible for policies and
programmes which concern them; c establish means for the full development
of these peoples’ own institutions and initiatives, and in appropriate cases provide
the resources necessary for this purpose. Article 62
The consultations carried out in application of this Convention shall be undertaken, in
good faith and in a form appropriate to the circumstances, with the objective of achieving
agreement or consent to the proposed measures.
Article 71. The peoples concerned shall have the right
to decide their own priorities for the process of development as it affects their lives,
beliefs, institutions and spiritual well-being and the lands they occupy or otherwise
use, and to exercise control, to the extent possible, over their own economic, social and
cultural development. In addition, they shall participate in the formulation, implementation
and evaluation of plans and programmes for national and regional development which may
affect them directly.
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The main objective of these provisions is to ensure that indigenous peoples can effectively participate
at all levels of decision-making in political, legislative and administrative bodies and processes which
may affect them directly. Under the Convention, consultation is viewed as a crucial means of
dialogue to reconcile conlicting interests and prevent as well as settle disputes. Through the
interrelatedness of the principles of consultation and participation, consultation is not merely the right to
react but indeed also a right to propose; indigenous peoples have the right to decide their own priorities
for the process of development and thus exercise control over their own economic, social and cultural
development.
The core area of application for the concepts of consultation and participation is in the context of
relationships between indigenous peoples and states.
Committee of Experts, General Observation, 2008
Given the enormous challenges facing indigenous and tribal peoples today, including
the regularization of land titles, health and education, and the increasing exploitation
of natural resources, the involvement of the indigenous and tribal peoples in these
and other areas which affect them directly, is an essential element in ensuring equity
and guaranteeing social peace through inclusion and dialogue… Consultation
can be an instrument of genuine dialogue, social cohesion and be instrumental in the
prevention and resolution of conlict. Committee of Experts, General Observation
on Convention Nol. 169, 79
th
Session, 2008, published 2009.
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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 obligation to consult indigenous peoples arises on a general level in connection with the application
of all the provisions of the Convention. In particular, it is required that indigenous peoples are enabled
to participate
freely at all levels in the formulation, implementation and evaluation of measures and
programmes that affect them directly. In addition, the obligation of governments to consult indigenous
peoples is further emphasised in the following cases:
When considering legislative or administrative •
measures Article 61a; Prior to exploration or exploitation of sub-
• surface resources Article 152;
When consideration is given to alienating •
indigenous peoples’ lands or transmitting them outside their own communities Article
17; Prior to relocation, which should take place
• only with the free and informed consent of
indigenous peoples Article 16; On the organization and operation of special
• vocational training programmes Article 22;
On measures aimed at children being taught •
to read and write in their own indigenous language Article 28.
In addition, Convention No. 169 contains numerous references to the concept of participation, covering
a wide range of areas Articles 2, 6, 7, 15, 22, 23. Other terms are also used in the Convention
indicating participation:
Obligation to “cooperate” with indigenous •
peoples Articles 7, 20, 22, 25, 27, 33 ; Obligation
• not to take measures contrary to
the freely-expressed wishes of indigenous peoples Article 4;
Obligation to seek “free and informed •
consent” from indigenous peoples article 16; Right to be consulted through “representative
• institutions” Article 16.
In the Context of Convention No. 169, the obligation to ensure appropriate consultation falls
on governments and not on private persons or companies. Ensuring consultation and participation
is the responsibility of the State.
James Anaya 2004: pp 153-154 is of the view that this requirement of consultation and participation
applies not only to decision-making within the framework of domestic or municipal processes
but also to decision-making within the international realm. Mr. Anaya asserts that UN bodies and other
international institutions have already increasingly allowed for, and even solicited, the participation of
indigenous peoples’ representatives in their policy- making and standards-setting work in areas of
concern to indigenous peoples.
3
With regards to the consultation process, the Convention provides a series of qualitative elements.
Consultations with indigenous peoples shall be carried out:
Through representative institutions •
Prior to undertaking any consultations, the concerned communities have to identify the
institutions that meet these requirements see also section 4 on the respect for indigenous
institutions. With regards to determining representativeness, the ILO supervisory
bodies have underlined that “the important thing is that they should be the result of a
process carried out by the indigenous peoples themselves”.
4
While acknowledging that this can be a dificult task in many circumstances,
the ILO supervisory bodies further stressed that “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”.
5
By supporting the development of •
indigenous peoples’ own institutions and initiatives and also, where appropriate,
providing these with the necessary resources
This is particularly important given the fact that the legitimacy, capacity and resource
base of most indigenous peoples’ governance
3 For example, indigenous peoples’ representatives participated actively throughout the negotiations on the UN Declaration on the
Rights of Indigenous Peoples; The UN Permanent Forum on Indigenous Issues was created to give indigenous peoples more voice within
the UN system – and half of its members are indigenous peoples’ representatives; The UN Expert Mechanism on Indigenous Peoples’
Rights has been established, and all of its members are of indigenous origin.
4 See Governing Body, 289
th
Session, March 2004, Representation under article 24 of the ILO Constitution, Mexico, GB.289173
5 See Governing Body, 282
nd
Session, November 2001, Representation under article 24 of the ILO Constitution, Ecuador, GB.282142, para.44.
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institutions have been undermined in discriminatory historical processes and there
is thus an asymmetry in the relationship between indigenous peoples and the states.
In good faith and in a form appropriate to •
the circumstances This means that consultations should
take place in a climate of mutual trust. In general, Governments need to recognize
representative organizations, endeavor to reach an agreement, conduct genuine and
constructive negotiations, avoid unjustiied delays, comply with the agreements which
are concluded and apply them in good faith. Governments also need to ensure indigenous
peoples have all relevant information and that it can be fully understood by them. Suficient
time must be given to allow 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.
6
Through appropriate procedures •
Procedures are considered appropriate if they create favourable conditions for
achieving agreement or consent to the proposed measures, independent of the result
obtained.
7
General public hearing processes
6 Gernigon, Bernard, Alberto Odero and Horacio Guido “ILO principles concerning collective bargaining” in International
Labour Review, Vol. 139 2000, No. 1 [See also Mexico Article 24 noted below re: mutual trust.]
7 See Governing Body, 289
th
Session, March 2004,
would not normally be suficient. “The form and content of the consultation procedures
and mechanisms need to allow the full expression of the viewpoints of the peoples
concerned, in a timely manner and based on their full understanding of the issues involved,
so they may be able to affect the outcome and a consensus could be achieved, and be
undertaken in a manner that is acceptable to all parties.”
8
With a view to achieving agreement or •
consent In accordance with Article 6 of Convention
No. 169, the objective of the consultation is to achieve agreement or consent. In other
words, agreement or consent needs to be a goal of the parties, and genuine efforts need
to be made to reach an agreement or achieve consent.
Periodic evaluation of the operation of •
the consultation mechanisms There should be a periodic evaluation of the
operation of the consultation mechanisms, with the participation of the peoples
concerned, with a view to continue to improve their effectiveness.
9
Representation under article 24 of the ILO Constitution, Mexico, GB.289173, para.89
8 Committee of Experts, General Observation, 2008, published 2009.
9 Committee of Experts, General Observation, 2008, published 2009.
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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;
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