GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
(AID), which are guided by Law Nº3859 of 1968, and are not traditional community
structures. Thus, paradoxically, a structure provided for in a regulation but not
mentioned in the Indigenous Law supersedes traditional community structures,
which could create serious confusion, manipulation and governance problems in
indigenous territories.
3.4 Who is the entity responsible for consulting
States have the duty to respect, guarantee and protect the rights established in
International Human Rights Law. Consequently, States have the responsibility to
consult Indigenous Peoples in compliance with the provisions of Article 19 of the
United Nations Declaration (States shall consult…) and Article 6, paragraph 1 of
the ILO Convention 169 (In applying the provisions of this Convention, governments
shall: (a) consult the peoples concerned…).
International instruments would not be able to define which body within each State
is designated to comply with the duty to consult; that is subject to the internal legal
regulations of each State. Nevertheless, this definition should also be a matter of
consultation with Indigenous Peoples since the regulatory or administrative provision
that establishes it, whenever it directly affects the exercise of rights by Indigenous
Peoples, should be subject to pre-legislative consultation as outlined in international
instruments.
The state body or entity with authority to carry out consultation processes, should
not delegate the performance of its role to any other entity, public or private: much
less to private actors such as the companies interested in the development of the
project or measure to be consulted on.
Nevertheless project proponents also have an obligation, which exists in parallel
with, but independent of, the State duty, to obtain the FPIC of indigenous communities
prior to the commencement of project activities in their territories. As a result
when the State fails to comply with its obligations to consult and obtain FPIC there
still remains a corporate responsibility to respect human rights and not to proceed
with extractive operations in the absence of consent.
Recent studies referring to the Colombian situation confirm that in spite of shared
interests between the investor and the State, at the moment of undertaking a project
to explore for non-renewable natural resources, the State relegates a good part of
its obligations to the specific interests of private transnational actors. To that extent,
the State takes on a passive role, which translates to a disarticulation between what
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