Daniel Cerqueira*

Versión en español aquí.

In 1994, the UN General Assembly chose August 9^th as the International Day of the World’s Indigenous Peoples. This day serves a moment for civil society, states, and the international community to reflect on the challenges in ensuring respect for indigenous peoples’ rights. This essay will focus on the right to free, prior and informed consultation (FPIC), which faces major challenges in its implementation. This right was recognized in constitutions that established a new model for the participation of indigenous peoples in state decisions. In the 80’s and 90’s, various states in the Western Hemisphere began to define themselves as multicultural societies and abandoned the previously dominant integrationist constitutional paradigm. This paradigm was based on two main premises: i) indigenous peoples’ cultures tend to extinguish due to their unsuitability to the economic and social order; and ii) public authorities must mediate the assimilation of indigenous peoples to the rest of society, guaranteeing them minimum economic and social rights.

Within the international sphere, the abandonment of the integrationist paradigm began with the adoption of the 169^th Convention of the International Labour Organization (ILO) in June 1989, and strengthened with the 2007 UN Declaration on the Rights of Indigenous Peoples, along with a vast body of jurisprudence from supranational human rights bodies. The 169 ILO Convention internationalized the commitment to the preservation of indigenous cultures, recognizing their power to decide autonomously on their development priorities and to participate directly in any state decisions that affect them, through a free, prior and informed consultation.

After 30 years of its international recognition, it is necessary to evaluate the role that FPIC has played as a human rights tool. This assessment is crucial, as the expansion of energy and infrastructure megaprojects has had a perverse effect for indigenous peoples and communities, whose territories have become the scene of legal disputes and serious human rights violations. It is precisely in its mission to prevent socio-environmental harms that FPIC has been playing a more rhetorical role, instead of effectively guaranteeing rights. In recent years, this tool has achieved privileged status in regulatory frameworks and comparative jurisprudence. Likewise, FPIC has been contemplated in the safeguards established by multilateral banks and in the self-regulatory standards of the corporate sector, and rely on several pronouncements by organizations of the Inter-American and Universal Human Rights System.

Despite these important developments, indigenous peoples remain subject to social conflicts. In Latin America and in other regions of the globe, governments have decided to weaken regulatory and environmental safeguards as a means to increase foreign investment. According to Global Witness, Latin America has been, for several years, the most dangerous region on the planet for human rights defenders and indigenous leaders. Given this troubling context, it is clear that despite the advances in the recognition of FPIC, it faces limitations that merit new approaches and narratives to respond to the demands of indigenous organizations, peoples and communities.

On many occasions, FPIC has been used as a formality, allowing states and companies to obtain a rubber stamp of legitimacy for the concession or operation of investment projects. As a general rule, these projects are decided before the start of a consultation process, in a vertical manner and without observing the applicable international and constitutional standards. The asymmetry between the ability of indigenous peoples and companies to influence state decisions on natural resource management is one of the problems in which FPIC has failed to play a decisive role in favor of its beneficiaries.

On occasion, legal claims based on the right to FPIC have had some success when the communities consulted are willing to accept a specific investment project in their territory; when they seek to influence their design or obtain better shared benefits. This tool has also been useful as a way to extend the timeframe for deliberation and to impose conditions on the concerning state decision. However, we must recognize the recurring criticisms of the privileged standing that FPIC has had in the indigenous peoples’ rights agenda, and the lack of effectiveness of this tool to reshape the more structural aspects of the relationship between states and indigenous peoples.

Within this context, the statements of indigenous organizations and press releases by supranational organizations, especially of the Universal Human Rights System, have highlighted the need to guarantee the right to self-determination of indigenous peoples, instead of focusing solely in the fulfillment of the right to prior consultation. Given the shortcomings in the FPIC implementation, as well as its “appropriation” by states and the private sector, invoking a broader right – although its normative content must still be developed – could give new direction to human rights discourse as a tool for the defense of the indigenous land, territory and natural resources. The assertion of rights based on self-determination has already been used: for instance, in self-consultation protocols and the governance of territories and natural resources without state mediation; as well as in autonomous processes of political deliberation and self-government.

DPLF is aware of the need to continue advancing a narrative that is in line with these claims. As such, we have participated in discussions with allied organizations, with whom we have analyzed the parameters of International Human Rights Law that protect certain expressions of self-determination, including the right to consultation and consent. This initiative gave rise to a study published in January of this year, entitled “From prior consultation to self-determination: report on the implementation of the right to free, prior and informed consent in Mexico.” Prepared jointly with FUNDAR and the Institute of Legal Investigations of the UNAM, the report emphasizes that although the effective implementation of prior consultation processes can be an opportunity for states to address their historical debts towards indigenous peoples, FPIC should not be considered the only instrument that guides the relationship between states, and indigenous peoples and communities. The satisfaction of the rights of these groups requires differentiated public policies and spaces for autonomous participation in local, regional and national spheres, particularly in the face of decisions that directly affect their territories.

Advancing in the recognition of independent deliberation processes and in the autonomous management of indigenous territories and natural resources is, for DPLF and several allied organizations, as important as or more important than the improvement of the legal frameworks and state policies regarding prior consultation. In order to take seriously the global commitment to the rights of indigenous peoples made in 1994 and celebrated on every August 9th since, it is essential to reflect critically on those institutions that have not been able to prove themselves as effective tools for the exercise of self-determination of indigenous peoples. Otherwise, such institutions and the discourses that seek to legitimize them will remain as symbolic as an ephemeris.

*Senior Program Officer, DPLF