GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Nor does this mandate mean that States must consult Indigenous Peoples on almost
any decision that affects both indigenous and non-Indigenous People. Special
Rapporteur Anaya has said that the obligation to consult Indigenous Peoples applies
whenever a State's decision might affect said peoples in ways not felt by others
in society.21
In this regard, the Colombian Constitutional Court has declared that before the
obligation to move forward with prior consultation on a legislative or administrative
measure can be enforceable, one condition must be met: the corresponding policy
must directly affect differentiated communities. This direct influence can be verified
through three scenarios: (i) when the measure is intended to regulate an issue that,
by express constitutional provision, must be subjected to decision-making processes
that involve the participation of ethnic communities, as occurs with the exploitation
of natural resources; (ii) when, although it does not deal with those matters, the
issue regulated by the measure is linked to elements that define the particular
identity of differentiated communities; and (iii) when, although a general measure
is involved, it systematically regulates areas that define the identity of traditional
communities, which could very well create a possible impact, a deficit in the
protection of the rights of these communities, or a related legislative omission that
discriminates against them.22
In article 6, the Convention establishes
guidelines on how indigenous and tribal
peoples should be consulted:
Indigenous Peoples should be consulted
through appropriate procedures, in good faith,
and through their representative institutions;
The peoples involved should have the opportunity to freely participate at all levels
in the formulation, implementation and evaluation of measures and programmes
that directly concern them;
Another important component for the concept of consultation is that of
representativeness. If an appropriate consultation process is not developed with
the indigenous and tribal institutions or organisations that are truly representative
of those people, then the consultation will not comply with the requirements of
the Convention;
21 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,
James Anaya. 15 July 2009. A/HRC/12/34.
22 Constitutional Court of Colombia. CASO C-366/11 (11.05.2011).
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