Procedures for consultations with indigenous peoples - Experiences from Norway
There are other reasons related to the failure to consult adequately, including the fact that
widespread recognition of this right is fairly recent and both governments and indigenous peoples are in the process of developing ap- propriate institutions and modalities for consultations.
As noted by the CEACR in its general observation, “[i]n certain cases, agencies have been
established with responsibility for indigenous or tribal peoples’ rights, however, with little or no
participation of these peoples, or with insufficient resources or influence. For example, the key
decisions affecting indigenous or tribal peoples are in many cases made by ministries responsible for mining or finance, without any coordination with the agency responsible for indigenous
or tribal peoples’ rights. As a result, these peoples do not have a real voice in the policies likely
to affect them. While the Convention does not impose a specific model of participation, it does
require the existence or establishment of agencies or other appropriate mechanisms, with the
means necessary for the proper fulfillment of their func- tions, and the effective participation
of indigenous and tribal peoples. Such agencies or mechanisms are yet to be established in a
number of countries that have ratified the Convention” (CEACR 2008, published 2009).
WHAT DOES THE CONVENTION SAY ABOUT PARTICIPATION?
The concept of participation is closely linked to that of consultation. In a general manner,
Convention No. 169 states in Article 6(1) that governments shall “establish means by which
these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other
bodies responsible for policies and programmes which concern them”.
The Convention thus recognizes that indigenous peoples often are in a disadvantaged position, which hinders their equal participation. This happens, for example, in the numerous
cases where indigenous peoples, and in particular women, do not have recognized citizenship
or identification documents, which would allow for their participation in elective processes. In
other cases, electoral rules do not allow for minority representation, implying that indigenous
peoples may be effectively excluded from participating in decision-making.
In addition, Article 7(1) of Convention No. 169 specifically stipulates that indigenous peoples shall “participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly”. Further,
Article 33 of the Convention requires governments to establish agencies or other appropriate
mechanisms to ensure “the planning, coordination, execution and evaluation, in cooperation
with the peoples concerned, of the measures provided for in this Convention”.
Convention No. 169 contains numerous references to the concept of participation and also
uses other terms such as the obligation to “cooperate” with indigenous peoples; the obligation not to take measures contrary to the “freely- expressed wishes” of indigenous peoples;
and the obligation to seek “free and informed consent” of indigenous peoples where “relocation…is considered necessary as an exceptional measure”.
Members of indigenous peoples shall benefit on an equal footing from the rights and opportunities
which national laws and regulations grant to other members of the population.
Enjoyment of the general right of citizenship, without any discrimination, shall not be prejudiced
in any way by special measures established to safeguard the persons, institutions, property,
labour, cultures and environment of indigenous peoples.
See articles 2(2) (a) and 4(3) of Convention No. 169.
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