GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
169 specifies that affected peoples must be consulted directly and through appropriate
procedures and in particular through their representative institutions.
Consequently, it is critical to the success of processes of consultation that these
be directed at all the peoples who will be effectively impacted by the measure to
be approved, respecting mechanisms of convocation, dialogue and decision-making.
Here, the Special Rapporteur has indicated that Indigenous Peoples themselves
should contribute to facilitate processes of consultation through their own systems
of decision-making, identifying clear representative structures that facilitate
processes of consultation.57
The State, through the corresponding body, must verify with the participation of
Indigenous Peoples and register who will be affected by the measure submitted
for consultation, and who, therefore, must participate in the process. In order to
do so, it must define the area or level of impact of the measure - if it will be targeted
to a defined geographical area or if it is a measure with a regional or national scope
- and allow those who feel affected to give their reasons for believing that they
should participate in the consultation. For development projects and/or programmes,
the affected area could encompass more than one People or Indigenous People,
more than 2 communities or communities of Indigenous Peoples.
Peru's Law on Prior Consultation allows Indigenous or First Peoples to request to
be consulted on a determined measure that they believe directly affects them. To
this end, they must submit a petition to the state agency responsible for conducting
the consultation, which must move forward with the petition. The act that denies
the petition can be challenged through administrative and legal channels.
In Ecuador on the other hand, the Instructions for Pre-legislative Consultation contemplate
a mechanism to enrol in the process of consultation, which may be accessed by any
indigenous commune, community, people or nationality, Afro-Ecuadorian people,
Montubio people and organisations that are entitled to collective rights in the first
degree, connected to the fundamental issues to be consulted on (Article 11).
C. Publicise the administrative or legislative measure and report on its scope
and applications
Through appropriate means (see above 4.3) that guarantee, materially and not only
formally, access to information for the Indigenous Peoples that may be affected
57 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 para. 50. March, 2011. (in Spanish)
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