The Prior Consultation of Indigenous Peoples in Latin America

Inside the Implementation Gap

Claire Wright, Alexandra Tomaselli, Claire Wright, Alexandra Tomaselli

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138488069
• eBook ISBN: 9781351042086
• Edition: 1
• Topic: Sciences physiques
• Subtopic: Géographie

This book delves into the reasons behind and the consequences of the implementation gap regarding the right to prior consultation and the Free, Prior and Informed Consent (FPIC) of Indigenous Peoples in Latin America.

In recent years, the economic and political projects of Latin American States have become increasingly dependent on the extractive industries. This has resulted in conflicts when governments and international firms have made considerable investments in those lands that have been traditionally inhabited and used by Indigenous Peoples, who seek to defend their rights against exploitative practices. After decades of intense mobilisation, important gains have been made at international level regarding the opportunity for Indigenous Peoples to have a say on these matters. Notwithstanding this, the right to prior consultation and the FPIC of Indigenous Peoples on the ground are far from being fully applied and guaranteed. And, even when prior consultation processes are carried out, the outcomes remain uncertain.

This volume rigorously investigates the causes of this implementation gap and its consequences for the protection of Indigenous Peoples' rights, lands, identities and ways of life in the Latin American region.

Chapter 8 and 18 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution 4.0 International (CC BY 4.0).

Part I

Defining prior consultation

1 Indigenous Peoples’ contributions to multilateral negotiations on their rights to participation, consultation, and free, prior and informed consent ¹

Andrés Del Castillo

Introduction

The degree of involvement of inhabitants or groups in matters that directly affect them or that are in their interests varies considerably. In any case, the right to participation is recognised as an individual right and as a collective right in the International Bill of Human Rights and other regional legal instruments.²

When the rights-holders are Indigenous Peoples, their inclusion translates into a greater degree of autonomy and competencies from a collective point of view, which is known today as “the right of Indigenous Peoples to self-determination, conceived as the right to decide their political condition and determine what their future will be” (International Law Association, 2012, p. 2). This right was defined in articles 3 and 4 of the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

In order for the collective rights of self-government and autonomy to materialise, other rights of Indigenous Peoples are invoked, such as the right to participate in decision-making on matters concerning them, the right to be consulted on any project that may affect them, and the right to Free, Prior and Informed Consent (FPIC) regarding projects that have a significant impact on their rights and/or ways of life.

The manner in which these rights relate to each other may vary. For some Indigenous representatives, consent is the rule, and consultation and participation are the exceptions to the rule. In accordance with a 2018 study, the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) stated that:

Free, prior and informed consent is a manifestation of the right of Indigenous peoples to determine for themselves their cultural, social and economic priorities. These are three interrelated and cumulative rights: the right to be consulted, the right to participate and the right to their land, territory and resources. According to the declaration, there cannot be free, prior and informed consent if one of those components is missing.

(EMRIP, 2018, p. 5)

Indeed, classifying the three rights into participation, consultation, and consent, in determining the degree to which those rights should be obligatory, has been a common practice in multilateral negotiations on international legal instruments that contain Indigenous rights. For example, during negotiations over ILO Convention No.169 Concerning Indigenous and Tribal Peoples in Independent Countries of 1989 (ILO 169), the parties preferred the terms “participation” and “consultation” instead of “self-determination” and “consent” as required by some Indigenous Peoples (Dahl, 2009).

Hence, by bearing in mind that the origin of those rights precedes their compilation in multilateral regulatory texts, this article offers an overview of how participation, consultation, and FPIC have been repeatedly affirmed by the Indigenous delegates who participated in the preparatory work for the adoption of the international legal instruments on their rights.

Having said that, this chapter starts from the assumption that FPIC is an internationally recognised right, and is part of customary international law (Sambo, 2013, p. 149). Indeed, in addition to the practice of international organisations on Indigenous Peoples’ issues, there is abundant State practice in adopting resolutions related to Indigenous Peoples which can contribute to the crystallisation of the status of this right as customary international law. A 2018 report by the International Law Commission of the UN, adopted by the General Assembly, warns that while only the practice of States can create or express customary international law, in certain cases, the practice of international organisations also contributes to the formation, expression, and identification of rules of customary international law (General Assembly, 2018, p. 130). According to the same report, although the behaviour of entities that are not States or international organisations does not contribute to the formation or expression of regulations of customary international law, “[it may] have an indirect role in the identification of customary international law, by stimulating or recording the practice and acceptance as law (opinio juris) of States and international organizations” (General Assembly, 2018, p. 131).

Therefore, this chapter begins with a short outline of the first affirmations of Indigenous rights to participation, consultation, and consent. Next, it highlights the discussions that shaped the articles that refer to such rights in the ILO Convention No.107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries of 1957 (ILO 107) and ILO 169. Finally, it focuses on the role of the international Indigenous movement in the development of FPIC in the preparation and adoption process of the UNDRIP.

Early affirmations of Indigenous rights to participation, consultation, and consent³

According to the theory of the origin of public international law – which claims to exist only after the emergence of Nation States – States are the exclusive subjects of international law. However, throughout different periods of colonial rule, there were also rules that regulated relations between States and other political entities, including Indigenous Peoples. For example, the agreements reached between colonial powers and local political entities were some of the means by which rights, territorial sovereignty, and property were acquired or recognised (Hébié, 2015).

During decolonisation processes, new Nation States were created with borders that sometimes united but often divided several of the Peoples that lived there prior to the arrival of colonial powers. The principle of “inherent sovereignty” in US jurisprudence establishes that the powers which are legally conferred on a People are those which predate the colonisation of what is now known as the Americas and which have never been revoked (Green & Work, 1976). These are known as ancestral rights, prior to the formation of modern States, under the principle of prior in tempore, potior in iure. Other principles of international law such as the Blue Water Thesis and the Uti possidetis were used against Indigenous Peoples to assert States’ inherent sovereignty and territorial dominion (Gilbert, 2006).

Nevertheless, examples of FPIC were present, for example in several sections of the Popol Vuh, one of the sacred texts of the Quiche Maya (Goetz, Morley Griswold, Weil Kaufman, & Jackson, 1954) where two of the deities use consultation.⁴ Colonial practices, mainly in the Americas, were consistently and uniformly based on treaties and agreements between colonial powers and native peoples. Finally, the Spanish Requirement (Requerimiento) of 1513, which was a declaration by the Spanish monarchy of Castile, included a divinely ordained right to take possession of the territories of the Indigenous Peoples, including what could also be construed as a reference to consultation.

Rights are derived from these sovereign exercises between Nation States and local authorities, including Indigenous Peoples, such as participation, representation, consultation, and consent on decisions that affect the rights holders, which are, in essence, a means to guarantee other rights. While important, treaties are not the only proof of sovereign power; however, they are evidence of the recognition of Indigenous Peoples’ sovereignty. A former UN Special Rapporteur on the Rights of Indigenous Peoples reaffirmed “[the] widespread recognition of ‘overseas peoples’ – including Indigenous Peoples […] – as sovereign entities by European powers […]” (Commission on Human Rights, 1999, p. 17).

In the twentieth century, the League of Nations was created. It emerged from the 1919 Treaty of Versailles, which ended World War I. The inclusion of the doctrine of guardianship in article 23.b of the League of Nations Covenant shaped the doctrine’s definition during the interwar period (Rodríguez-Piñero Royo, 2004, p. 60).

In 1923, Chief Hoyaneh Deskaheh was the first Indigenous representative to come before the League of Nations to try – albeit unsuccessfully – to persuade the international community to recognise the Iroquois Confederacy as an independent state, in accordance with Article 17 of the League of Nations Covenant. His request was based on the treaties and agreements made between his people and the colonial powers. According to the request, consent was a right derived from the sovereignty recognised by the colonial authority, which was later known as the self-determination of the peoples (Deskaheh, 1923). In 1924, a Maori delegation headed by Pita Te Turuki Tamati Moko – secretary of Tahupōtiki Wiremu Rātana, a Maori religious leader – travelled to Geneva to speak to the League of Nations about the Treaty of Waitangi of 1840 (Orange, 2004, p. 417). After the creation of the UN in 1945, a group of Indigenous delegates from Ecuador went to the UN headquarters in New York, and met with Benjamín Cohen Gallerstein, Under-Secretary-General for public information to thank the UN for the support they received after the 1949 earthquake.

Only after many decades, the late independence of many colonies, the emergence of national civil liberties and human rights movements, and the adoption of ILO 107 on Indigenous and Tribal Peoples, were other Indigenous Peoples able to go to the UN with a robust agenda that included the recognition and establishment of their rights.

In September 1977, several Indigenous delegates participated in the first Conference on Discrimination against Indigenous Peoples in the Americas (Dunbar-Ortiz, 2015). The economic commission of this conference recommended “support [for] the right of self-determination of aboriginal people in the development of their land and resources according to their own values and social structures and laws” (International Indian Treaty Council, 1977, p. 15). For its part, the legal commission of the conference brought with it the issue of self-determination, understood as “the inherent legal right of Indigenous Peoples to control and regulate their own affairs” (International Indian Treaty Council, 1977, p. 21), including the principle in the draft Declaration of Principles for the Defence of the Indigenous Nations and Peoples of the Western Hemisphere. In addition, the commission concluded that “[…] lands, land rights and natural resources […] should not be taken, and their land rights should not be terminated or extinguished without their full and informed consent” (International Indian Treaty Council, 1977, p. 23).⁵

Participation, consultation, and consent in the ILO Conventions

In 1957, the ILO adopted Convention No.107 (ILO 107) as well as Recommendation No.104 regarding Indigenous and Tribal Peoples. For its part, ILO 107 recognised the obligations of States with respect to Indigenous Peoples and considered it essential to adopt general international standards for their protection. There is no record of the participation of Indigenous Peoples in the negotiation and adoption of the Convention. ILO 107 is still in force for those countries that have ratified it, except for those that subsequently ratified ILO 169, because that ratification involved ipso jure the immediate denunciation of ILO 107, in accordance with its Article 36.

Regarding the right to participation, ILO 107 had a protectionist and integrationist perspective, and both the preamble and Article 5.C stipulate the State duty of collaboration, which represents a nuanced tone of the right to participation, both individually and collectively. Nothing is mentioned regarding consultation, but in Articles 4⁶ and 12, the right to free consent is specifically recognised in two cases: when applying the provisions of the Convention which relate to integration, and when transferring Indigenous Peoples from their habitual territories, albeit with the exceptions provided for by domestic legislation regarding national security, the economic development of the country, or the health of these populations.

The revision process of ILO 107 was carried out in response to repeated requests from several organisations, particularly the UN. It should be noted that in 1982, a Working Group on Indigenous Peoples (WGIP) was established at the UN level and that there is a correlation between the revision of the Convention and the international Indigenous movement (ILO, 1987). For the commission of ILO 107, there was consensus on the fact that the integrationist doctrine was no longer acceptable, and that Indigenous and Tribal Peoples should be genuinely associated with any decision that affects them.

The essence of the revision [of Convention 107] was procedural and the principle was the participation of Indigenous and tribal peoples as social partners with the right to organise – an approach which was entirely consistent with the work of the ILO.

(International Labour Conference, 1989a, pp. 25–26)

For its part, ILO 169 refers to States’ obligations, considering participation in article 2.5.C, 6.B, 7.1 and 2, 15.1, 22.1 and 2, 23.1, 27.2, and 29. The right to consultation is framed as a duty of the State in article 6.1 and 2, 15.2, 17.2, 22.3, 27.3, and 28.1; and the right to informed consent in its articles 6.2, and 16.2. In this case, there is evidence of indigenous delegates’ participation in the negotiation and adoption of the Convention. Even government advisers highlighted the valuable contribution they made (International Labour Conference, 1989b). As mentioned previously, this is in contrast to ILO 107. Indeed, once the report of the Committee on ILO 107 was submitted, adopting the text of the Convention, Indigenous organisations took the floor and said in their final interventions: “We did not come here so that the ILO could tell the world it had consulted Indigenous Peoples during the revision of ILO 107. Beca...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• List of contributors
• Preface
• Acknowledgements
• Introduction
• PART I: Defining prior consultation
• PART II: Administrating prior consultation
• PART III: Institutionalising prior consultation
• PART IV: Avoiding prior consultation
• PART V: Rethinking prior consultation
• PART VI: Lessons learned
• Index