GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
nationalities, the Afro-Ecuadorian people and the Montubio people, be conducted
according to their customs, traditions and internal procedures for deliberation and
decision-making, without the interference of any outside institution in the internal
process. Nevertheless, the entities participating in the consultation may seek
technical and specialised opinions, if so required (Article 14).
E. Methodology for consultation between the State and the Peoples consulted
Article 6 of ILO Convention 169 establishes that: The consultations carried out
in application of this Convention shall be undertaken, in good faith and in a form
appropriate to the circumstances, with the objective of achieving agreement or
consent to the proposed measures. As a result, the dialogue that occurs in the
context of the consultations should be directed at creating the consent of the peoples
consulted (see above II.II); it should be an open and sincere dialogue in good faith,
which contributes to an environment of trust (see above IV). Positive dialogue is
only possible to the extent that the State is willing to modify the consulted decision
to accommodate the proposals of those consulted, if it is possible to thereby obtain
consent, or reject the decision, if consent is not obtained.
As a core principle of free, prior and informed consent, all sides in a FPIC process
must have equal opportunity to debate any proposed agreement/development/project.
“Equal opportunity” should be understood to mean equal access to financial, human
and material resources in order for communities to fully and meaningfully debate
in indigenous language(s), as appropriate […]58
In general terms, international norms conceive of consultation as a process of
dialogue and negotiation in good faith, in which all parties involved, the State and
Indigenous Peoples, must make an effort to reach an agreement on the planned
projects.59 If the State convincingly establishes that the planned measure is founded
on the legitimate interests of the State and society as a whole, both the indigenous
party as well as the State party have the mutual responsibility to engage in dialogue
in good faith on the projects with the aim of reaching an agreement.
It has been argued that human rights standards do not provide a particular
methodology that indicates what steps should be followed to ensure the suitability
of the consultation and the procurement of free, prior and informed consent.
However, the following elements contribute to the development of processes of
consultation and the application of free, prior and informed consent:
58 Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous
Peoples (E/C.19/2005/3), approved by the Permanent Forum in its Fourth Session in 2005, para. 48
59 A/HRC/12/34 (2009), para. 39-40.
45