Procedures for consultations with indigenous peoples - Experiences from Norway
broad national consultations, there will be a need to take an inclusive approach, allowing for
participation of the diversity of organizational expressions. In more specific consultations,
the scope of consultations should be determined on the basis of the impact assessments
stipulated in Article 7(3) of the Convention. Ensuring that the institutions concerned are representative may in some cases also imply going beyond traditional institutions. For instance,
the Convention requires that its provisions should be applied equally to women and men, but
in some cases indigenous women may not have a voice in traditional decision-making.
If the institutions consulted are not considered representative by the people they claim to
represent, the consultation may have no legitimacy. “If an appropriate consultation process
is not developed with the indigenous and tribal institutions or organizations that are truly representative of the communities affected, the resulting consultations will not comply with the
requirements of the Convention” (ILO Governing Body, 282nd session, 2001, GB.282/14/2).
Further, the Convention provides in Article 6(1)(c) that government shall “establish means for
the full development of these peoples’ own institutions and initiatives, and in appropriate
cases provide the resources necessary for this purpose”.
When it comes to determining what institutions are representative, the ILO supervisory bodies
have stated that “the important thing is that they should be the result of a process carried out by
the indigenous peoples themselves”
Governing Body, 289th session, 2004, document GB.282/17/3
WHAT ARE APPROPRIATE PROCEDURES?
The requirement that consultations should take place through appropriate procedures implies
that consultations should take place in a climate of mutual trust. In general, Governments
need to recognize representative organizations and both parties should endeavor to reach an
agreement, conduct genuine and constructive negotiations, avoid unjustified delays, comply
with the agreements which are concluded and implement them in good faith. Governments
also need to ensure that indigenous peoples have all relevant information and that it can
be fully understood by them. Sufficient time must be given to allow indigenous peoples to
engage their own decision-making processes and participate effectively in decisions taken, in
a manner consistent with their cultural and social traditions. Thus, consultation often means
establishing an intercultural dialogue. This means making a real effort to understand how
indigenous peoples’ cultures and traditional decision-making processes function, and adapting the form and timing of consultation to these.
Procedures are thus considered appropriate if they create favourable conditions for achieving agreement or consent to the proposed measures, independent of the result obtained.
General public hearing processes would not normally be sufficient. The form and content of
the consultation procedures and mechanisms need to allow the full expression of the viewpoints of the peoples concerned, in a timely manner and based on their full understanding
of the issues involved, so they may be able to affect the outcome and a consensus could be
achieved, and be conducted in a manner that is acceptable to all parties. The Committee of
Experts has emphasized that there should be a periodic evaluation of the operation of the
consultation mechanisms, with the participation of indigenous peoples, with a view to continuing to improve their effectiveness.
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