GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
holders of the collective rights established therein, in pacts, conventions, declarations
and other international instruments of human rights (Articles 57, 58 and 59).
In Brazil, the Federal Constitution recognises Indians as the subjects of collective
rights, without referring to Peoples as such, although it does mention communities
and organisations (Art. 231). The Transitional Constitutional Provisions Act, a
constitutional legal instrument, also recognises the rights of Afro-Brazilian
communities, descendants of the Quilombos. According to Brazilian legislation,
quilombo communities are those racial ethnic groups, according to criteria of selfidentification, with their own historic trajectory and specific territorial relations,
with presumed black ancestry related to their resistance of experienced oppression.23
Meanwhile, the Constitution of the Plurinational State of Bolivia recognises the
pre-colonial existence of indigenous first-peoples peasant nations and Peoples and
their ancestral dominion over their territories (Art. 2). The Bolivia Constitution
conceptualises indigenous first-peoples peasant nations and Peoples as the entire
human group that shares a cultural identity, language, historic tradition, institutions,
territoriality and worldview, whose existence is prior to the Spanish colonial
invasion.
In Peru, on the other hand, the current Constitution does not recognise Indigenous
Peoples, but rather peasant communities and native communities. However, the
term First Peoples is used in Art. 191 along with the category of communities, in
the section referring to regional governments. This term has also been introduced
into the Law on the right of first peoples to prior consultation, recognised in ILO
Convention 169 of August 31, 2011 (Art. 2).
The principle of respect for self-identification established by Article 1 of ILO
Convention 169 does not prevent the internal legislation of countries from broadening
the scope of protection of the right to be consulted and to give free, prior and
informed consent to other groups, to the extent that the intention in doing so is to
further guarantee human dignity.
Colombian constitutional jurisprudence says that the Court has treated prior
consultation as a fundamental right, to which the ethnic groups of countries are
entitled, as well as indigenous, black, Afro-Colombia, Raizal, Palenquera and
gypsy communities. In related jurisprudence, in the face of the seriousness of the
problems studied, the Court has generally ordered the suspension of projects
or works with the potential to impact the territories of ethnic communities unless
23 Decree 4.887, 20 November 2003. Art. 2.
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