The Right to Prior Consultation of Indigenous Peoples in the Americas (Part II)
Editor’s note: the first part of this post was an introduction to the right of indigenous peoples to prior and informed consent. In this second part, our authors address two duties of the State in relation to that right.
Contrary to what some would think, the fact that the right to consultation grants communities the possibility to veto any measures taken against their wishes emerges neither from the ILO Convention No. 169 nor from the jurisprudence of the IAHRS authorities.
In this regard, as to the right of consultation in general, the ILO has stated explicitly that the Convention does not give indigenous and tribal peoples the right to veto. Likewise, the ILO Manual on this subject states that “indigenous and tribal peoples do not have the right under the Convention to veto exploitation”.
However, the IAHRS authorities have disagreed with this statement and have declared that certain matters “legally require states to obtain indigenous peoples’ free and informed consent prior to the execution of plans or projects which can affect their property rights over lands, territories and natural resources”. Therefore, if consent is not obtained, this would grant indigenous peoples the power to actually veto any measure which does not meet their interests.
In this regard, the Inter-American Court emphasized that, in the context of large-scale development or investment projects that would have a major impact on the lands and territories or the natural resources of the affected indigenous peoples, the State has a duty, not only to consult, but also to obtain their free, prior, and informed consent, according to their customs and traditions. Yet, the Court was rather unclear about this.
In an attempt to clarify the issue, it has been declared that indigenous peoples’ consent shall be required only in the following cases:
1) Where the development of investment plans implies a displacement or permanent relocation of the affected indigenous peoples.
2) Where the execution of development or investment plans or of concessions for the exploitation of natural resources would deprive indigenous peoples of the capacity to use and enjoy their lands and other natural resources necessary for their subsistence.
3) Where there will be storage or disposal of hazardous materials in indigenous lands or territories.
In principle, the State has the duty to strive to adapt to the demands and proposals expressed by the affected peoples or communities during the consultation.
However, even in cases where consent is not required and where the State does not take into account the concerns and opinions of the affected communities, the Inter-American Commission has stated that “States have the duty to give due regard to the results of the consultation or provide objective and reasonable motives for not having taken them into consideration”.
In this regard, the Commission has also declared that, “whenever accommodation is not possible for motives that are objective, reasonable and proportional to a legitimate interest in a democratic society, the administrative decision that approves the investment or development plan must argue, in a reasoned manner, which are those motives. That decision, and the reasons that justify failure to incorporate the results of the consultation to the final plan, must be formally communicated to the respective indigenous people”.
We can conclude that the jurisprudence on this matter has evolved fairly well in the matter of the State’s duties regarding the right of indigenous and tribal communities. On the other hand, there is room for further development of the countervailing duties of communities. If this were to happen, there would be more security for every party involved in these cases: States, communities and private companies.