GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
Another example of Indigenous Peoples determining what a 'free' consultation and
consent seeking process should entail is the practice of developing their FPIC
protocols or policies.
4.2 Prior
The Expert Mechanism has indicated that “prior” implies that consent is obtained
in advance of the activity associated with the decision being made, and includes
the time necessary to allow Indigenous Peoples to undertake their own decisionmaking processes.37 Similarly, the Permanent Forum states that: Prior should imply
that consent has been sought sufficiently in advance of any authorisation or
commencement of activities and that respect is shown for time requirements of
indigenous consultation/consensus processes.38
It is clear that if the objective of consent is to protect the effective enjoyment of
the right to self-determination, effective participation and other rights of Indigenous
Peoples, it is untimely and of little use to request their consent on decisions that
have already been made, which are immovable and have already caused impacts.
However, it is preferable that, in cases where decisions have already been made
in violation of the duty to conduct consultations to obtain the consent of the affected
peoples, consultations are undertaken, the sooner the better, in order to correct the
omission as much as possible.
In this sense and in reference to the El Diquís hydroelectric project in Costa Rica,
the Special Rapporteur believes that: The design of the project is now at an advanced
stage, however, and the Government has taken various decisions which commit
it to researching and developing the project, without adequate consultation
beforehand. It is clear to the Special Rapporteur that, although the hydroelectric
project has not yet received final approval, the ability of the Indigenous Peoples
to exercise their right to self-determination and establish their own priorities for
development has been infringed… Nevertheless, the Special Rapporteur considers
that it would be possible to remedy the lack of indigenous participation in the
development of the project if a proper consultation process were launched now
that met international standards and addressed the particular challenges posed in
this case.39
37 A/HRC/18/42; page 22; paragraph 25.
38 E/C.19/2005/3; page 13; paragraph 46.
39 Report of the Special Rapporteur on the rights of Indigenous Peoples, James Anaya. Addendum: The situation of
the Indigenous Peoples affected by the El Diquís hydroelectric project in Costa Rica. 11 July 2011
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