It must state consultation to indigenous peoples in international law

It must state consultation to indigenous peoples in international law

Servindi, May 14, 2013.-“consultation and its relationship to the principle of free, prior and informed consent are central elements for a new model of relations between States and indigenous peoples, as well as a new model of development,” said the Rapporteur of the United Nations, James Anaya.

So put it in his masterful lecture given on 25 April last in the international event: “the role of the Ombudsman in Latin America: the right to consultation prior to indigenous peoples” organized by the Ibero-American Federation of ombudsmen of the people.

We share the full text of the speech of James Anaya below. For more information about other activities of the rapporteur, can consult the site:

It must state consultation to indigenous peoples in international law

By James Anaya

In my work as a United Nations Special Rapporteur on the rights of indigenous peoples, the majority of the problems that come to my attention point to the lack of consultation to indigenous peoples, in particular on decisions related to development or projects of industrial extraction of natural resources in their territories. Surely all the defenders of the people ombudsman represented at this seminar have faced problems of this type, thus making important and motivate this seminar. In my comments today I will make a brief outline of the foundations in international law of the rule of prior consultation with indigenous peoples, and will offer a few comments on some of the specific aspects of this standard.

The duty of States to consult indigenous peoples stands out in the main international instruments dealing specifically with the issue of indigenous peoples, i.e. the Convention 169, international organization of the work on indigenous and tribal peoples, and the United Nations Declaration on the rights of indigenous peoples. The governing body of the ILO has stated that the standard of consultation is the cornerstone of the Convention 169. Although not in such explicit terms, several treaties in addition to Convention 169 based query standard, as it has explained the Inter-American Court of human rights in relation to the American human rights Convention and the organs of the Treaty of the United Nations in relation to the International Covenant of civil and political rights and the International Convention against all forms of Racial Discrimination.

It should be noted that Convention No. 169 and other treaties I have just mentioned, have been ratified by the vast majority of countries in the Americas region, and therefore its provisions oblige States according to international law. On the other hand, within the doctrine generally accepted on international law, the Declaration on the rights of indigenous peoples, as a resolution of the General Assembly of the United Nations and not a treaty, it is not a source of obligations under international law, however, is undoubtedly an instrument endowed with authority, and its provisions are based on general principles of human rights, sitting, in the Charter of the United Nations and in other treaties that they have been widely ratified by States. Moreover, as has been affirmed by the International Law Association – an International Association of leading lawyers and Jurists – several of the provisions of the Declaration, including those on consultation, reflect standards that have become part of international customary law. Similarly, the Inter-American Court of human rights, in its judgment in the Sarayaku case v. Ecuador, affirms the obligation of States to consult with indigenous peoples is “a principle of general international law”.

In relation to the content of the standard of consultation, both Convention No. 169 and the UN Declaration, claim that the consultation with the indigenous peoples must be made in order to obtain their consent or agreement. In several of its articles, the Declaration emphasizes the principle of free, prior and informed consent. Implying this linking of the consultation with the consent, as has been recognized in the jurisprudence of various international bodies, is that consultation is a dialogue in good faith, free of pressure or manipulation, which the Parties shall cooperate to try to reach consensus and informed decisions.

While the Convention 169 and the Declaration refer to the consultation as an obligation or duty of the States, between institutional actors and those who advocate for indigenous peoples, has been talking increasingly of the right of these peoples to be consulted. It is important to remember, however, that this corollary of inquiry law, such as arises in international instruments and jurisprudence, is not an isolated or independent right. Rather the standard of consultation, with the related principle of free, prior and informed consent arises in international law as a safeguard for the whole of the substantive rights of the indigenous peoples who may be affected by administrative or legislative decisions of States.

The inquiry is a State obligation to safeguard, in particular, the property rights of indigenous peoples over their lands, resources and territories, as it has pointed out the Inter-American Court of human rights in a number of cases in the context of natural resource extraction projects. The inquiry also safeguard other rights, such as the right to culture and religion, for example when a decision on a project may affect sacred sites; the right of indigenous peoples to establish their own priorities for development, especially when it comes to projects of investment at large scale in indigenous territories; or the right to health and physical well-being in relation to a clean and healthy environment.

In addition, consultation and consent function to make and implement the right of effective participation of indigenous peoples in decisions that concern them, in a coherent manner are their right to self-determination and the exercise of all rights applicable. All of these rights and others covered by the inquiry are based on multiple sources of international law, including multilateral treaties of human rights mentioned above, and are set forth in the Declaration on the rights of indigenous peoples.

The consultation and consent have been working to identify and assess the impacts on these rights that may have State administrative or legislative decisions, and to protect and facilitate the enjoyment of these rights under the agreed arrangements. Therefore, provided arises the question of consultation in specific situations, there must be a specific focus on the substantive rights of the indigenous peoples who might be affected by the measure to be consulted. With this focus on rights, the relevance of the consultation, the topic to be consulted, and the object of the consent or agreements that should result from consultation are cleared up.

Thus, for example, in the context of a project of extraction of natural resources, peoples or specific indigenous communities to be consulted are those who are holders of the rights that might be affected by the project; the issues to be addressed in the consultation process are defined largely around an approach on the possible effects on rights; and consent being sought is the consent for these purposes, on the basis of fair and equitable conditions that safeguard and misrepresenting the rights. That said, to maximize the function of the consultation instrument for the enjoyment of rights and safeguards, should be flexibility in the consultation processes and the definition of the measure to be consulted. The inquiry is not the mere transmission of information the search for a “Yes” or “no” to an already default measure. But it is a dialogue in good faith in that Exchange information and perspectives, and that alternatives to the proposed measure, are explored in order to reach a consensual decision.

With these general comments on the consultation in international law, would now move to consider two issues that arise increasingly in relation to this issue: first, what happens when indigenous peoples refuse to be consulted? Second, what does the State when indigenous peoples refuse to consent? With respect to the first question, it is clear that in many cases indigenous peoples simply don’t want to be consulted, especially when it comes to project development and investment of large scale within or close to their territories.

This refusal is due to the mistrust in the consultation processes offered by States, or positions as grounded against the measures or projects to be consulted. I think are well understood these postures, given history suffered by the indigenous peoples front of investment projects driven by the States that have violated their rights and lack of appropriate consultation processes.

In some cases, indigenous peoples have formalized their decisions against measures or projects promoted by States and consultations with States, through highly participatory processes. In Guatemala, for example Mayan communities across the country have organized what they have called “community consultations in good faith”, aside from the consultations with the State. The so-called community consultation basically consists of a discussion between the members of a community on a project of mining or other driven by the State, but without the presence of the State, followed by a referendum on the project. In all cases of mining projects and other investment projects, these processes have led to decisions collective against the whites.

Leading mayashan insisted on maintaining positions against the projects based on these processes, and have generally resisted to enter into dialogue with the State or projects promoting companies, arguing that due consultation done already and that his refusal to the projects is binding. In reports I elaborated on the indigenous peoples of Guatemala, in my capacity as Special Rapporteur of the United Nations, I have observed that the so-called community consultations in good faith are not clearly the type of queries as defined in international instruments, referring to those consultations between States and indigenous peoples. However, I have pointed out that the results of these community processes are legitimate expressions of the will of the communities, and that these expressions must be influencing the decisions of the State on the projects.

I think it is important to highlight that indigenous peoples have the right to oppose, in a peaceful manner, the investment projects or other measures driven by the States, on the basis of their right to freedom of expression and Association. State at all times must respect this right and not to encourage or allow retaliation of any kind against indigenous peoples when they exercise this right and oppose State-driven projects. In addition, although it is for the State the duty of consultation with indigenous peoples before deciding on measures that they can affect them, the State should not insist on the consultations while the indigenous part maintains an opposition clear against the consultation with the State and the project or measure in question. I believe that the State complies with its duty to consult when it offers a process of inquiry suitable according to international standards and is confronted with this definitive stance of opposition. In such circumstances, that the indigenous part have waived their right to be consulted by the State, but has not given up its right to not consent can be considered. In fact, when people oppose to be consulted and the measure in question, they are refusing to consent, as if they had entered into a consultation process and they had refused consent or enter into agreements within this process.

And this brings us to the question that I want to: what to state when indigenous peoples refuse to consent? On this issue, as well as in relation to other matters related to the inquiry, a focus on the substantive rights that may be affected leads us back to the framework of appropriate analysis. As starting point must bear in mind that with or without the consent of the indigenous party, the State has the obligation under international law to respect and protect the rights of indigenous peoples established international standards. Let us remember that the consultation and consent exist to safeguard and exploit the rights of indigenous peoples; in no way represent a comprehensive normative framework with respect to state decisions. It should be noted that in the context of natural resource extraction projects, the State duty of protection involves, apart from the obligation to carry out consultations and the need to obtain consent, the obligation of environmental impact studies, develop measures of mitigation in the case of expected impacts, and provide compensation in the case of permissible interference with the enjoyment of rights of property and other rights. In any case, States should avoid decisions that lead to violations of any of the specific rights of indigenous peoples which have been affirmed in international instruments or in domestic law, irrespective of the granting or not of the consent by the indigenous part.

On the other hand, also consider that within the doctrine of international law, except in few cases, human rights can be restricted without causing violations of international rules. But restrictions on rights can occur only under conditions of limited proportionality and necessity in relation to a valid state interest within the framework of human rights. The Declaration on the rights of indigenous peoples raises this course in relation to the recognized rights. Article 46.2 of the Declaration says:

…The exercise of the rights set forth in the present Declaration shall be exclusively subject to limitations determined by law and pursuant to international human rights obligations. Such limitations shall not be discriminatory and will be only the strictly necessary to ensure the recognition and respect due to the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

The answer to the specific question about what happens when there is no consent from the indigenous side lies in an analysis of the conditions in which it is permissible to limitation of rights, under the criteria set out in the Declaration. As mentioned above, standard of consultation with its goal of consent applies when the State anticipates a decision that may affect indigenous peoples, in the sense of having an impact on one or other of their rights. Impact anticipated on the rights in any way implies restrictions on the exercise of these rights, as it is clearly the case of extractive industries. It should then be considered in the specific cases if restrictions on rights are permissible, for which the criterion of proportionality is key. When there is consent under fair and equitable terms to an impact or limitation to the enjoyment of the right to property, the right to cultural identity, or another law, that consent means that it meets per is the requirement of proportionality.

Of course the formal consent under unfair terms that would jeopardize the enjoyment of fundamental rights or physical or cultural survival of the indigenous group interested would be inadmissible. But when there is consent on fair and equitable terms, there is a strong presumption in favor of the permissibility of the restriction of rights. Even if manifests itself through an agreement that includes important benefits for the indigenous part, consent can go beyond being a safeguard and converting what would have been a restriction, to an instrument that facilitates and promotes the enjoyment of rights. On the other hand, when there is no consent, to be able to proceed with the measurement proposal the State would demonstrate that restrictions on rights imposed by the measure are necessary and proportionate to a valid state purpose within the framework of human rights.

In many situations, the State can Yes meet this burden, showing, on the one hand, a valid state interest, for example in the promotion of the right to development of the population in general, and, on the other hand, that the impact on the rights of indigenous peoples would be relatively mild, especially if mitigation measures are implemented and, where appropriate, for compensation. In many other situations, however, wouldn’t conditions to demonstrate proportionality against a valid state purpose. This is because, on the one hand, show could not be a valid state purpose, in the sense of an objective of promoting the human rights of others; or, on the other hand, demonstrate cannot be a necessity or proportionality fair given the magnitude of the impacts on specific rights, especially without the consent of the indigenous party. In accordance with this analytical framework, has identified a series of generic situations of significant impacts that require consent, along with other safeguards applicable to the affected rights.

The Declaration on the rights of indigenous peoples, for example, points out that the consent is required, more than be a target of the inquiry in the case at which a project will result in the transfer of indigenous outside their traditional lands and in cases related to storage or dumping of toxic waste on indigenous lands (arts. 10 and 29, para. 2, respectively). In the same vein, the Inter-American Court of human rights has held that, “when it’s plans of development and large scale investment that would have one greater within a territory [indigenous or tribal] impact, the State has an obligation not only to consult [to the indigenous or tribal party], but it should also get the free, informed and prior consent of theseAccording to their customs and traditions.” (Case Saramaka v. Suriname, para.) (134) In all these situations – storage of toxic wastes, transfer of indigenous groups, and investment projects of large scale in indigenous territories – the impact is significant on the exercise of a series of rights of indigenous peoples; and this usually makes it difficult in these situations can demonstrate a need and proportionality without the consent of the party indigenous, even assuming that there is a valid state purpose.

That said, I think it is important to take into account, beyond the observance of the criteria of international law relating to the consultation, political and social factors when unworthy people deny their consent and are opposed to investment projects or other measures by the State. Indigenous peoples are characterized by conditions of discrimination, marginalization and conflicts that have historically lived and who are still living.

This context requires States to act with special caution to not exacerbate these conditions, duly taking into account the special duty that States ensure the rights of indigenous peoples. If there is no consensus with indigenous peoples, the State should not to rush to act in a way that would make difficult the construction of consensus in the future and a lasting social peace both for indigenous peoples such as the whole of the country or regions. I want to end highlighting that the consultation and its relationship to the principle of free, prior and informed consent are central elements for a new model of relations between States and indigenous peoples, as well as a new model of development. It doesn’t cost us much recall the history of oppression and invasions that the indigenous peoples of the Americas have lived for centuries.

This story is one in which indigenous peoples have been excluded from decisions that have taken States and other powerful actors on key aspects of their lives, often with disastrous consequences for their physical and cultural survival. But fortunately today there is a branch of thought recognition, assessment and inclusion of indigenous peoples, a branch of thinking that presents a challenge to the legacy of the history of oppression. This aspect has been manifesting itself in new international instruments, as the Declaration on the rights of indigenous peoples and the Convention 169 of the ILO, which form part of a new regime of international law concerning indigenous peoples. This new regime of international law proposes a new relationship between States and indigenous peoples within the multinational or multicultural model. Within this model, indigenous peoples must be able to determine their own destinies in equal footing with others, participate in the decisions that affect them, and be sure in their individual and collective rights.


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