Regulating Prior Consultation in South America

The expansion of the mining and the agro-industrial frontier in South America has put the right to free, prior and informed consent (FPIC) at the center of regional debates. This right guarantees that the government will consult with indigenous and other ethnic or minority groups and consider their views when adopting measures that may affect them and their rights as a people. Specifically, it requires that these individuals or groups give their informed consent to legislation or norms that will affect them, prior to its passage and without being coerced. Debates about the right to FPIC have increased due to an expansion of mining and agro-industrial projects, since these States or private businesses projects are often located in territories that indigenous and other ethnic minority groups have traditionally lived in, used and owned.

Various countries in the region argue that it is very difficult to carry out prior consultations because ILO Convention 169 (the international law that regulates the right to FPIC) does not provide details on how to fulfill the right in practice. Below, I provide an implementation map of the right to FPIC in Latin America, showcasing the countries that have created national legislation to implement the right. To date, the status of FPIC implementation is not very encouraging: the four countries that have decided to regulate the right have done so in ways that violate the right by: (i) creating FPIC legislation without consulting indigenous peoples and other ethnic minorities, and/or (ii) developing legislation with fewer protections that what the ILO Convention 169 provides.

Passing prior consultation legislation without consultation

In Colombia, there have been two attempts to regulate the right to FPIC. In neither case were the affected communities consulted. The first was Decree 1320 of 1998,which was passed without consulting indigenous peoples, Rom, and Afro-Colombians. The ILO Committee of Experts and the Colombian Constitutional Court  have requested that the national government change the law and not apply the decree, because it does not consider the experiences of those ethnic groups. In 2013, the government repeated the same error, and emitted another Decree without consulting with these ethnic groups about the objective and content of the decree.

In Ecuador, the government was in midst of discussion about oil exploitation in the Ecuadorian Amazon when the Inter-American Court ruled in favor of the indigenous people of Sarayaku, halting foreign oil exploration on their land. Around the same time, without consulting the indigenous peoples of the Ecuador, the government passed Executive Decree No. 1247 of 2012. With this decree, the Correa Administration attempted to accelerate the exploitation of hydrocarbons in the heart of the Amazons through the concession of oil blocks.

Legislation with fewer protections than ILO Convention 169

The second mistake that South American governments have made in passing national legislation, is to restrict the protections granted by ILO Convention 169.  Peru developed a national policy (composed of Law 29.785,  Supreme Decree No. 001 of 2012 and a Methodological Guide), which reduces the protection international law grants to indigenous people. For example, Peru established a universal time frame for prior consultation processes. This ignores the fact that indigenous peoples have different decision-making mechanisms, and that different measures require different methods of consultation. Thus, the parties in each consultation process should agree upon the amount of time necessary for each consultation. Furthermore, Peru created a specific list of laws that require consultation, in violation of the international norm that establishes that any law that directly affect indigenous people and other ethnic minorities must be consulted.

Another controversial element of the FPIC regulation in Peru was their creation of a Database, which lists the peoples that are considered indigenous, and therefore, have the right of FPIC. The District Federation of Chichaypujio Farmerschallenged this Database in court.The legal process was supported by a coalition of organizations (Dejusticia, the Global Justice and Human Rights Programof the University of Los Andes, the Public Interest Legal Clinic of the Pontifical Catholic University of Peru and the Stanford International Human Rights and Conflict Resolution Clinic) that argued that the Peruvian government had violated the right to FPIC by establishing that only those indigenous groups that maintained their indigenous language and communal property traditions regarding land-use could be included in the Peruvian Database.

Chile made a mistake similar to that of Peru. Recently, the Piñera Administration held one of the longest consultation processes in the history of Latin America with indigenous leaders. Nonetheless, after various discussions, the government passed Supreme Decree 66 of 2013 in violation of FPIC of indigenous Chileans. The Decree narrowly defines the list of laws that it considers may affect indigenous peoples. This is highly problematic since it, for example, mistakenly excludes the evaluation of the projects included in the Environmental Evaluation System from consultations when these evaluations often directly affect the lives of indigenous communities. The Mapuche Bread-makers Labor Union N°1 of Santiago has filed suit against this decree. Dejusticia published a human rights report supporting the indigenous peoples’ arguments in the complaint.

As, the debate about FPIC is extends across the globe, governments who have ratified ILO Convention 169 may want to learn from the problems Latin American is experiencing in its efforts to implement the right of FPIC. The experience of South American social justice organizations and judges trying to solve the conflicts generated by the regulation the right of FPIC can serve as an example, to countries like Kenya, Ghana and South Africa. The Latin America experience is valuable because it is the region where implementation of FPIC has been most debated by government and civil society, in countries like Colombia, Ecuador, Peru and Chile.

The Latin American experience thus far provides two important lessons for the rest of the world to consider. Governments that decide to adopt domestic legislation to regulate how the right of FPIC is implemented and help fill in the gaps of international law must remember to: (i) consult with indigenous peoples prior to the bill’s passage, and (ii) the bill’s content must respect international law, which means that they may not include regressive norms.  Getting the implementation FPIC right is still a work in progress in Latin America, but hopefully the trials and tribulations experienced in the region can help others avoid the potholes on the road to true free, prior and informed consultation.