Consultation and participation in ILO Convention No. 169
One of the issues that the Committee of Experts on the Application of Conventions and
Recommendation (CEACR) has most regularly examined since the Convention was adopted is
the “obligation to consult”. Therefore, CEACR prepared a detailed general observation to further
clarify the concept of consultation, which, inter alia, states:
The Committee cannot over-emphasize the importance of ensuring the right of indigenous and
tribal peoples to decide their development priorities through meaningful and effective consultation
and participation of these peoples at all stages of the development process, and particularly when
development models and priorities are discussed and decided. Disregard for such consultation
and participation has serious repercussions for the implementation and success of specific
development programmes and projects, as they are unlikely to reflect the aspirations and needs
of indigenous and tribal peoples.
CEACR, General Observations on Convention No. 169, 2009 and 2011.
WHY DOES CONSULTATION WITH INDIGENOUS PEOPLES REQUIRE SPECIAL ATTENTION?
Indigenous peoples have the same rights as all other citizens to participate in the general
democratic life of the State and to vote in such processes. In addition, States have the obligation to specifically consult with and ensure the participation of indigenous peoples, whenever measures are being considered which may affect them directly. This does not mean that
indigenous peoples have special rights but that given their situation, special measures for
consultation and participation are required, to safeguard their rights within the framework of
a democratic State. The collective nature of indigenous peoples’ rights and the need to safeguard their cultures and livelihoods are among the reasons why governments should adopt
special measures for their consultation and participation in decision-making.
WHO HAS THE RESPONSIBILITY FOR UNDERTAKING CONSULTATIONS?
In the context of Convention No. 169, the obligation to ensure appropriate consultation
clearly and expressly falls on governments and not on private persons or companies. In some
cases, governments may delegate the operationalization of the consultation process to other
entities. However, the responsibility to ensure that consultations are carried out in compliance with the provisions of the Convention rests with the government, even when it does not
conduct the processes itself.
WHO SHOULD BE CONSULTED?
The Convention stipulates that indigenous peoples should be consulted through their representative institutions. What constitutes a representative institution should be determined
taking into account the characteristics of the country, the specificities of the indigenous peoples and the subject and scope of the consultation. Given the circumstances, the appropriate institution may be representative at the national, regional or community level; it may be
part of a national network or it may represent a single community. The important criterion is
that representativeness should be determined through a process of the indigenous peoples
themselves. This also implies, that an indigenous institution cannot claim representativity
without being able to clearly identify its constituents and its accountability towards these
constituents. In some cases, the alleged lack of representativeness of a given institution has
been contested in court or brought to the attention of the ILO supervisory bodies.
In circumstances where representation is contested or there is a diversity of competing
institutions, the identification of a single representative institution may not be possible. In
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