Procedures for consultations with indigenous peoples - Experiences from Norway
Article 6(1) stipulates that governments should: “Consult the peoples concerned, through
appropriate procedures and in particular through their representative institutions, whenever
consideration is being given to legislative or administrative measures which may affect them
directly”.
Further, Article 6(2) of the Convention specifies that “consultations carried out in application of
this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances,
with the objective of achieving agreement or consent to the proposed measures”.
The Convention particularly emphasizes the need to consult in the following circumstances:
• Prior to exploration or exploitation of mineral and sub-surface resources (Article 15(2));
• Prior to relocation, which should take place only with the free and informed consent (Article
16);
• When considering alienation or transmission of indigenous peoples’ lands outside their own
communities (Article 17);
• On the organization and operation of special vocational training programmes (Article 22);
• On literacy and educational programmes and measures (Articles 27 and 28)
The core area of application for the concepts of consultation and participation is in the context of relationships between indigenous peoples and States. The requirement for undertaking consultations with indigenous peoples is both broad and specific. In operational terms,
this will often imply establishing institutionalized mechanisms for regular and broad consultation along with specific mechanisms to be applied, whenever a specific community is affected.
This is in line with the experience of the ILO Committee of Experts on the Application of
Conventions and Recommendations (CEACR), which in its 2009 general observation noted
two main challenges: (i) ensuring that appropriate consultations are held prior to the adoption
of all legislative and administrative measures which are likely to affect indigenous and tribal
peoples directly; and (ii) including provisions in legislation requiring prior consultation as part
of the process of determining if concessions for the exploitation and exploration of natural
resources are to be granted.
Consultation under the Convention means:
1. Consultations must be formal, full and exercised in good faith; here must be a genuine dialogue
between governments and indigenous and tribal peoples characterized by communication and
understanding, mutual respect, good faith and the sincere wish to reach a common accord;
2. Appropriate procedural mechanisms have to be put in place at the national level and they have
to be in a form appropriate to the circumstances;
3. Consultations have to be undertaken through indigenous and tribal peoples’ representative
institutions as regards legislative and administrative measures;
4. Consultations have to be undertaken with the objective of reaching agreement or consent to
the proposed measures.
Pro forma consultations or mere information will not meet the requirements of the Convention. At
the same time, such consultations do not imply a right to veto nor is the result of the consultations
necessarily the reaching of agreement or consent.
See CEACR General Observation, 2010, published 2011.
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