GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
representative structures being recognised and respected. These structures conform
and function according to their own customs and traditions.
This requirement is linked with two important elements of the consultation process:
time and format. Consultations that seek the consent of Indigenous Peoples must
run according to the mechanisms of these peoples for the adoption of important
decisions. If extremely short timelines are imposed for conducting the consultation,
it could limit the possibility of the consulted peoples to give their free consent.
The requirement that consultations be carried out according to times and rhythms
imposed by the urgency to approve a decision of interest to the State or third parties
can often result in coercion, corrupting the consent of those consulted.
Additionally, the method adopted for consultations must respond to the traditional
models of each people for making important decisions. The procedures for processes
of consultation with Indigenous Peoples must be flexible in order to incorporate
the particularities of each People. The format for consultation must be agreed upon
a priori between the consulting State and the consulted subjects. If methods are
imposed that are different from those of the peoples concerned, the spirit of the
consultation could be corrupted by intimidation and manipulation. Furthermore,
the imposition of processes that are not consistent with the peoples' own decisionmaking processes and agreed by them is inconsistent with the exercise of their
right to self-determination.
Frequently, Indigenous Peoples make their decisions in assemblies with broad and
equal participation by their members. On other occasions, important decisions are
reserved, for cultural reasons, to specialised bodies, such as Elder Councils.
Sometimes, decisions are preceded by rituals or ceremonies, which are indispensable
for them to be valid and legitimate.
If Indigenous Peoples are obligated by rules imposed from without to adopt
decisions through consultations conducted in a rigid format, which is foreign to
the culture of those consulted, it limits the possibilities that an eventual consent
given under such conditions will fulfil the requirement that it be free. 3 1
31 The Municipal Code of Guatemala (Decree 12-2002 of April 2, 2002) is an interesting case, establishing a consultation
with indigenous communities and authorities (Art. 65) that can be conducted using a form designed technically and
specifically for the case, determining in the notification the topic, date and place where the consultation will be held
using the criteria of the concerned communities' own legal system. Nevertheless, in order for the results to be binding,
at least fifty (50) per cent of the registered community members must participate, and the majority must vote in favour
of the matter being consulted on. In contrast, for the consultation of community members described in Art. 64 to be
binding, only a minimum of twenty (20) per cent of the registered community members are required to participate, with
the majority voting in favour of the matter being consulted on.
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