GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Furthermore, the Special Rapporteur has stated that as is the case in other contexts,
consultations on extractive or other development activities affecting Indigenous
Peoples should take place at the earliest opportunity and in all phases of decisionmaking, such that consultations should occur before concessions to private companies
are granted.40
Colombian constitutional jurisprudence indicates: The determined moment at
which prior consultation should be conducted is of crucial importance. In this
regard, based on the principle of good faith that guides the consulting process, the
Court says that the consultation should be timely, which means that it should be
done in advance of the adoption of the measure since, once the measure is adopted,
the participation of ethnic communities is of no use insofar that it cannot influence
the decision-making process. It would not be a consultation process, but simply
a notification of something that had already been decided.41
Additionally, the Court says that the procedure for consultation is, before all else,
an instrument to guarantee the effective participation of traditional communities
in matters that affect them in a setting aimed at guaranteeing their fundamental
rights. In this sense, mere administrative formalities that tend to allow communities
to exercise their right to defence with respect to adopted measures, or untimely
efforts by the National Government to comply with procedures, do not satisfy the
duty of prior consultation. For constitutional jurisprudence, the prior consultation
is untimely, in the case of legislative measures, when it is undertaken after debate
and approval proceedings have begun in Congress.42
Consent as an on-going process:
In the context of resource extraction processes FPIC must be understood as an ongoing and iterative process to be obtained at each phase in the project lifecycle.
Consent is consequently required prior to the issuance of a concession, prior to the
commencement of both exploration and exploitation and also prior to any subsequent
significant changes to project plans which may cause impact on Indigenous
Peoples.
Capacity building:
As noted below the informed component of the requirement for FPIC goes beyond
information provision and extends to ensuing that the community have the capacity
40 A/HRC/12/34; page 20; paragraph 54.
41 Constitutional Court of Colombia. CASO T-116/11 (24.02.2011). (in Spanish)
42 Constitutional Court of Colombia. CASO C-366/11 (11.05.2011). (in Spanish)
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