GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
This is reflected in the variety of organisations and actors that adopt this standard,
including not only the organisations of the United Nations System and the InterAmerican System of Human Rights (like CEACR, CERD, the Human Rights
Committee and the ICHR), but also multilateral organisations, like the InterAmerican Development Bank and the World Bank, as well as private actors, such
as the International Association of Oil and Gas Producers, who have established
soft law standards on the topic.
Nevertheless, it is precisely this obligation that has been violated most seriously and
repeatedly by States. Proof of this are the multiple declarations by CEACR, in which
it has been forced to warn several States for neglecting to consult before authorising
explorations and exploitations of natural resources, such as oil projects, lumber
concessions, nickel mineral exploitations, extensive oil palm plantations and livestock
projects, among others, located in areas inhabited by Indigenous Peoples.54
Likewise, the Human Rights Committee believes that the omission of consultation
in cases of natural resource exploitation and exploration in indigenous territories
threatens the right of ethnic minorities to preserve their culture, considered in
article 27 of ICCPR. In this sense, the committee has made recommendations in
its concluding observations on countries, indicating the necessity to consult on
these kinds of projects with affected communities.55 The CERD has also analysed
the lack of consultation before undertaking projects of this nature, referring in
particular to its General Recommendation Nº 23, in which it urges states to “Ensure
that members of Indigenous Peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to their rights and
interests are taken without their informed consent”.56 In General Recommendation
23, the CERD highlights the need to obtain informed consent before adopting any
decision that affects Indigenous Peoples without explicitly mentioning exploration
and exploitation projects.
B. Identification of subjects to be consulted
Both article 6 of ILO Convention 169 and article 19 of the United Nations
Declaration on the Rights of Indigenous Peoples establish the duty to consult
peoples who will be affected by a legislative or administrative measure. Convention
54 CEACR, (Committee of Experts on the Application of Conventions and Recommendations) Individual Observations
on Convention 169: Mexico, 1999; Ecuador, 2003; Bolivia, 2003, 2005 and 2006; Guatemala, 2006, 2007 and 2008;
Colombia, 2007.
55 United Nations Human Rights Committee, concluding observations for: Guyana, 2000; Venezuela, 2001; Sweden,
2002; Suriname, 2004; Canada, 2006.
56 CERD (Committee on the Elimination of Racial Discrimination). General Recommendation xxiii (51), on the rights
of Indigenous Peoples, 1997, art. 4(d).
42