GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
(including Indigenous Peoples, private sector staff, research institutions, government
employees and others); g. Procedures that the project may entail.
We stress that in order for the consent of Indigenous Peoples to effectively be
informed, the State must necessarily provide them with complete and reliable
information on the scope of the project to be consulted on, including its expected
impact; this information must be provided in the language of those consulted, in
an accessible format and in a culturally appropriate manner; those consulted must
be allowed the time necessary to freely analyse the information they have been
given and to compare it with information from other independent sources, so they
may form their own opinion; the State must provide those consulted with the
necessary resources for them to access the counsel they consider necessary and
freely chosen by them.
Colombian constitutional jurisprudence maintains that mechanisms of participation
should not be limited to simply serving an informative function, nor does mere
notification of the measure to be adopted constitute consultation. This does not
mean that prior consultation excludes the informative process, but it should not
be limited to that. In fact, it has been indicated that during prior consultation,
“governments should provide appropriate and complete information, that can be
fully understood by indigenous and tribal peoples”… The information on the
measure to be adopted should include the mechanisms, procedures and activities
required to implement it and an explanation as to how its implementation could
affect their identity. Additionally, the actual possibility to express a position and
influence decision-making requires, in some cases, “actions aimed at helping these
peoples acquire the knowledge and skills necessary to understand and decide
between existing development options”.45
One aspect that should be seriously taken into account when providing information
to Indigenous Peoples within a consultation process is that this information be in
their language so that they can fully understand it. In this sense, Peru's Law on the
Rights to Prior Consultation46 mandates: When conducting a consultation, the
linguistic diversity of indigenous or first peoples is considered, especially in areas
where the official language is not spoken by the majority of the indigenous
population. Therefore, processes of consultation should have support from interpreters
who are duly trained in the topics that are the object of the consultation; interpreters
must also be registered with the specialised technical entity in indigenous material
(Art. 16).
45 Constitutional Court of Colombia. CASO T-116/11 (24.02.2011). (in Spanish)
46 Law on the right to prior consultation of the indigenous peoples recognised in ILO Convention 169. 31 August 2011.
(in Spanish)
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