Fifth Section
Phases or stages of
consultations leading
to consent
Legislative and jurisprudential advances52 in many countries demonstrate the need
to formulate processes for consultation of Indigenous Peoples, which are formal
and composed by stages. These phases or stages could be:53
A. Identification of the administrative, legislative and/or development measure
that needs to be consulted on.
According to Article 6 of ILO Convention 169 and the Declaration, art. 19, 32.2,
the State has the obligation to consult Indigenous Peoples anytime legislative or
administrative measures are planned that are likely to directly affect them, including
in connection with any project for development, investment in infrastructure,
exploration or exploitation of natural resources in indigenous territories or likely
to affect the rights of Indigenous Peoples over these territories. Consequently, the
planned legislative or administrative measure subjected to consultation must be
well described, clear, and sufficiently specific and detailed. The characterisation
must tell the consulted subjects the content and scope of the decision being presented
for consultation, without leaving any room for doubt.
52 For example, Peru's Law on the right to Prior Consultation (Law 29785) and Judgment 001-10-SIN-CC of March
18, 2010 from the Constitutional Court of Ecuador, with reference to the unconstitutionality of the Mining Law.
53 On this point we follow Peru's Law 29785 on the right to Prior Consultation, as it is the most recently approved legal
instrument on the issue in the region.
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