Consultation and participation in ILO Convention No. 169
IS THERE A REQUIREMENT TO REACH CONSENT?
As stipulated by Article 6(2), consultations must be undertaken in good faith and with the
objective of obtaining agreement or consent. In this sense, Convention No. 169 does not
provide indigenous peoples with a veto right, as obtaining the agreement or consent is the
purpose of engaging in the consultation process, and is not an independent requirement.
On the other hand, the ILO supervisory bodies have clearly stated that a simple information meeting, where indigenous peoples could be heard without having any possibility of
influencing decision-making, cannot be considered as complying with the provisions of the
Convention. The adequate implementation of the right to consultation thus implies a qualitative process of good faith negotiations and dialogue, through which agreement and consent
can be achieved if possible. Here again, it is appropriate to underline the interconnection
between broad and specific consultations. If indigenous peoples’ rights, concerns and aspirations are reflected in legislation and broader policies, it will likely be easier to reach agreement and consent on specific measures or projects affecting their lands and territories. It
must also be highlighted that even if the consultation process has been concluded without
agreement or consent, the decision taken by the State must still respect the substantive
rights recognized by the Convention, e.g. indigenous peoples’ rights to land and to property.
The more severe the potential consequences are for the concerned indigenous peoples, the
greater is the importance of obtaining agreement or consent. If, for instance, the continued
existence of an indigenous culture is at stake, the need for consent to proposed measures is
more important than in cases where decisions might result in minor inconveniences, without
severe and lasting consequences.
Convention No. 169 in its Article 16, paragraph 2 provides for “free and informed consent”
of indigenous and tribal peoples where relocation of these peoples from lands which they
occupy is considered necessary as an exceptional measure.
DOES CONSULTATION HELP TO PREVENT CONFLICT?
Effective consultation and participation are principles of good governance and are means
to reconcile different interests and pursue objectives of inclusive democracy, stability and
economic development. In contrast, the lack of effective consultation will often lead to further exclusion and, in the worst cases, conflicts and confrontations. Convention No. 169
has twice been ratified as an integral element of peace accords, to put an end to civil wars
that were rooted in the exclusion of certain sectors of the population (Guatemala, 1996;
Nepal, 2007). At the local level, consultation is the mechanism for establishing dialogue and
facilitating agreements. Likewise, where the ILO supervisory bodies have analyzed specific
situations of conflict, it has been clear that these conflicts emerged when the provisions on
consultation and participation had not been adequately implemented.
WHAT ARE THE BARRIERS FOR CONDUCTING CONSULTATIONS?
A key obstacle to effective consultation is the situation of exclusion and mistrust, which often
exists between indigenous peoples and States. As expressed by a Tripartite Committee of
the Governing Body in the context of a particular country, “…the climate of confrontation,
violence and lack of mutual trust stopped the consultations from being conducted more productively. It is imperative in all consultations to establish a climate of mutual trust, but all the
more so with respect to indigenous peoples, given their lack of trust in state institutions and
their feeling of marginalization, both of which have their origins in extremely old and complex
historic events, and both of which have yet to be overcome”.
5