GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
the right to prior consultation is guaranteed. Similarly, the Court has recently
ordered the pursuit of free, prior and informed consent.24
The Inter-American Court has indicated that the criterion of self-identification is
the principal one for determining the condition of Indigenous People, both
individually and collectively. At the collective level, the identification of each
indigenous community is a social and historical fact that is part of its autonomy
and therefore, the Court and the State must restrict themselves to respecting the
corresponding decision made by the Community; in other words, the way in which
it identifies itself.25
Peoples who will be impacted should be consulted on the administrative or
legislative measure in question (see above 2.1 and 2.2) through their representative
institutions. With respect to the representativeness of the institutions of Indigenous
Peoples, the ILO's Governing Body accepted a report from the Tripartite Committee,
created to examine a complaint regarding a violation of ILO Convention 16926which
indicated that: “In view of the diversity of the Indigenous Peoples, the Convention
does not impose a model of what a representative institution should involve, the
important thing is that they should be the result of a process carried out by the
Indigenous Peoples themselves. But it is essential to ensure that the consultations
are held with the institutions that are truly representative of the peoples concerned...”
and “the principle of representativity is a vital component of the obligation of
consultation.... it could be difficult in many circumstances to determine who
represents any given community. However, if an appropriate consultation process
is not developed with the indigenous and tribal institutions or organisations that
are truly representative of the communities affected, the resulting consultations
will not comply with the requirements of the Convention.”
On the other hand, in Costa Rica, the subjects of consultation and consent are the
traditional communities and community structures.27 Nevertheless, one regulation28
of the Indigenous Law in article 5 establishes that structures representing indigenous
communities legally and extra legally are “Associations of Indigenous Development”
24 Constitutional Court of Colombia. CASO T-129/11 (03.03.2011).
25 Inter-American Court. Case of the Xákmok Kásek Indigenous Community v. Paraguay. Judgment of August 24,
2010. Paragraph 37. Cited in Indigenous and tribal peoples' rights over their ancestral lands and natural resources.
IACHR. 2010.
26 REPRESENTATION (article 24) - ARGENTINA - C169 - 2008 ---- Report of the Committee set up to examine the
representation alleging non-observance by Argentina of the Indigenous and Tribal Peoples Convention, 1989 (No. 169),
made under article 24 of the ILO Constitution by the Education Workers Union of Río Negro (UNTER), local section
affiliated with the Confederation of Education Workers of Argentina (CTERA).
27 Indigenous Law, 4
28 Regulation of Ley Indígena, Decree N° 8489-G of 1978
26