From the right to prior consultation to self-determination: reflections from the DPLF experience

Daniel Cerqueira*

Article published in the 22nd edition of Aportes.

Versión en español aquí.

An important part of DPLF’s work, through its Human Rights and Natural Resources program, has been to reinforce the inclusion of international standards on free, prior, and informed consultation (FPIC) in the norms, public policies, and case law of Latin American states. We have worked to provide legal support to civil society organizations (CSOs) and indigenous movements that are working to incorporate these standards into the laws and practices of their States. To this end, we have carried out advocacy activities, published case law digests, prepared specialized studies and analyses, monitored judicial proceedings, and filed amicus curiae briefs in emblematic cases.

In addition to maximizing the impact of international standards, we support the adoption of new standards to ensure that the legal framework provides effective remedies for violations of indigenous and tribal peoples’ rights. Along the way, we have received invaluable support from academic institutions and CSOs in different countries. At the regional level, we have been fortunate to share strategies with organizations working in different Latin American and Caribbean states, in particular with Oxfam International and its offices in the region.

Since the adoption of ILO Convention 169, the content of the right to FPIC has been expanded in decisions by supranational human rights bodies and high courts in different countries. In turn, FPIC has been recognized in multilateral bank safeguards and self-regulatory corporate sector standards. Despite these important developments, prior consultation processes have often meant the “proceduralization” of territorial dispossession to the detriment of indigenous peoples and traditional communities. Peoples and communities often participate in consultation processes without having the real capacity to change the government decisions that affect them. At times, such decisions are made under the banner of “collective interest” or “public utility,” when their real motivation is cooptation on the part of corporate sectors engaged in election campaign financing or whose interests are directly represented by parliamentary fronts or governments in power. 

The prior consultation processes conducted in the region have not always guaranteed indigenous peoples the ability to influence state decisions that affect them. Consultations are often seen as a formal procedure for the government and companies to obtain a stamp of legitimacy, despite the objection of the communities involved. Often, when communities are willing to participate in consultation processes, state authorities limit themselves to serving as mediators of possible compensation measures between communities and companies interested in a given investment project. Even when communities consent to such projects, it is unusual for the consultation to result in the right to share in the benefits generated by them, which is expressly provided for in Article 15.2 of ILO Convention 169. FPIC has also failed to give indigenous peoples a relevant voice in macro discussions on issues like the design of development policies and plans in their territories or at the national level.

Latin America is living a paradox. On the one hand, it is the region that has produced the strongest FPIC standards in national court judgments and in the decisions of the bodies of the inter-American human rights system. On the other hand, according to figures from Global Witness, it is the most dangerous place in the world for indigenous leaders and defenders of indigenous territories. This ambivalence has led experts, CSOs, and indigenous movements from different Latin American countries to reevaluate the role that FPIC has been given within the indigenous peoples’ rights agenda.

In this context, the limitations of FPIC have led many organizations to call for a broader agenda based on the right to self-determination. The self-consultation protocols in Brazil, the good faith community consultations in Guatemala, and the processes for the autonomous governance of indigenous territories in Latin America are examples of this expansion. Part of the challenge lies in highlighting the international law standards that underpin those experiences. While FPIC has a normative framework that has been developed over three decades, the legal framework for the protection of self-determination is more fragmented and the demands for this right have not yet had the same impact as the defense of FPIC by supranational human rights bodies.

Certainly, the domestic and international recognition of FPIC and Convention 169 have played a fundamental role in overcoming the integrationist paradigm, which was the focus of ILO Convention 107 of 1957. One of the premises of this paradigm was that indigenous peoples would disappear due to their own fragility, and it was up to the states to promote their incorporation into the rest of society, guaranteeing them some economic and social rights. However, between the 1980s and 1990s, several states in the hemisphere began to define themselves as multicultural societies, through constitutional reforms or the adoption of new constitutions. This legal shift, together with Convention 169, showed a public commitment to recognizing the power of indigenous peoples to participate directly, and not under state guardianship, in decisions that affect them.

It is undeniable that the regulatory developments around FPIC have been essential for the empowerment of indigenous peoples in their demands for autonomy over their territories. They have also raised awareness among political and social actors of the State’s obligations regarding the rights of indigenous peoples. But after several years of reflection and the promotion of standards on the subject, we are of the opinion that these advances are not enough; nor do they offer a comprehensive response to the expansion of mega-projects in indigenous territories, which in many cases trigger conflict and serious human rights violations.

The limitations of the regulatory framework on FPIC lie partly in the fact that there are still some ambiguities and state practices that are contrary to the applicable international standards. DPLF has sought to help fill this gap, through advocacy work and the preparation of reports that strive to make international standards on the subject more effective. This is the case, for instance, of the most recent regional study we published with Oxfam International, on the stumbling blocks inherent in the institutional designs of six countries of the region, and how this is reflected in the actual consultation processes, especially in the extractive sector; and a report published in October 2018 on the pros and cons of the legal implementation of the right to FPIC through laws or regulations of general application, prepared with Oxfam-Mexico.

However, some of the limitations noted go beyond impressions and patterns of state action that deviate from international standards. Rather, they reflect the inadequacy of a limited approach to FPIC in view of the demand by indigenous peoples and traditional communities for autonomous deliberation on their territories that is not dependent on a formal process of state mediation.

Mindful of the need to support these demands, DPLF has sought to more thoroughly analyze the international law and comparative constitutional law standards that protect self-determination, including the right to consultation and consent within that framework. Along these lines, in 2019, together with FUNDAR and the UNAM Institute for Legal Research, we published the report “From Prior Consultation to Self-Determination: Report on the Implementation of the Right to Free, Prior, and Informed Consultation and Consent in Mexico.” In this study, we show that FPIC should not be the only benchmark in the relationship between States and indigenous peoples. We also insist that the protection of these peoples requires creating differentiated public policies and autonomous spaces for participation in local, regional, and national entities, particularly in the face of decisions that have a direct impact on their territories.

Therefore, moving toward new standards on indigenous peoples’ right to self-determination and autonomy is as important, if not more important, to DPLF than improving the legal and institutional frameworks on FPIC. This exercise involves understanding the right to consultation and consent as expressions of self-determination and recognizing indigenous peoples and traditional communities as the leading stakeholders in any type of decision affecting their territories.

*Director of the Human Rights and Natural Resources Program at DPLF

Photo: Ministerio de las Culturas, las Artes y el Patrimonio Gobierno de Chile/Flickr,  Consejo Nacional de la Cultura y las Artes – Los Lagos/Flickr, Glenn/Flickr, Secretaría de Cultura Ciudad de México/Flickr

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Este es un espacio de la Fundación para el Debido Proceso (DPLF, por sus siglas en inglés) en el que también colaboran las personas y organizaciones comprometidas con la vigencia de los derechos humanos en el continente americano. Aquí encontrará información y análisis sobre los principales debates y sucesos relacionados con la promoción del Estado de Derecho, los derechos humanos, la independencia judicial y el fortalecimiento de la democracia en América Latina. Este blog refleja las opiniones personales de los autores en sus capacidades individuales. Las publicaciones no representan necesariamente a las posiciones institucionales de DPLF o los integrantes de su junta directiva. / This blog is managed by the Due Process of Law Foundation (DPLF) and contains content written by people and organizations that are committed to the protection of human rights in Latin America. This space provides information and analysis on current debates and events regarding the rule of law, human rights, judicial independence, and the strengthening of democracy in the region. The blog reflects the personal views of the individual authors, in their individual capacities. Blog posts do not necessarily represent the institutional positions of DPLF or its board.

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