GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Convention 169, the Law of Urban and Rural Development Councils and the
Municipal Code. Around 50 community consultations have been held in Guatemala
under this legal framework.
Another example is that of the communities of the Victoria del Portete and Tarqui
parishes of the Azuay province in Ecuador, which on October 29, 2011, conducted
a popular self-consultation to find out if the residents of these two parishes supported
the mining activity planned in the Quimsacocha zone, where the Canadian company,
IAMGOLD, intended to exploit 3.3 million ounces of gold, 10 million ounces of
silver and 79 million ounces of copper. After a five-hour popular referendum, the
residents of the Tarqui and Victoria del Portete parishes said No to the mining
exploitation in Quimsacocha. In total 958 voters (92.38%) voted No and 47 (4.53%)
voted Yes. The process was followed by national and international observers.34
In this experience, the local communities involved in the self-consultation adopted
an electoral mechanism, using four urns in which the residents, exercising their
political rights, deposited their direct, secret vote. However, the self-consultation
does not conform to the mechanisms established in the Constitution and state
electoral laws for popular referendums.
In all of these cases and in many others that have occurred in different Latin
American countries, community self-consultation have proven to be a powerful
tool for communities to make a statement through the exercise of their right to
self-determination.
In this regard, during a recent visit to Guatemala, the Special Rapporteur remarked
that self-consultations or consultations of good faith, independent of the national
legal framework, are valid and relevant as far as they reflect the legitimate aspirations
of the Indigenous Peoples and communities to express their points of view
surrounding those projects that have the potential to impact their traditional
territories.35 The Rapporteur specifies that although such consultations have been
made in good faith, the State still has the obligation to consult the communities
in accordance with international standards and to seek to establish a genuine process
of dialogue between the communities and the State.36
34 http://www4.elcomercio.com/pais/consulta-decidir-mineria_0_565143514.html
35 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,
Addendum: Observations on the situation of the rights of the indigenous people of Guatemala with relation to the
extraction projects, and other types of projects, in their traditional territories A/HRC/16. Unedited version, 4 March 2011,
para. 32. (in Spanish)
36 Office of the United Nations High Commissioner for Human Rights. El derecho a la consulta de los Pueblos Indígenas:
la importancia de su implementación en el contexto de los proyectos de desarrollo a gran escala. Mexico City, 2011.
(in Spanish)
33