This book delves into the reasons behind and the consequences of the implementation gap regarding the right to prior consultation and the Free, Prior and Informed Consent (FPIC) of Indigenous Peoples in Latin America.
In recent years, the economic and political projects of Latin American States have become increasingly dependent on the extractive industries. This has resulted in conflicts when governments and international firms have made considerable investments in those lands that have been traditionally inhabited and used by Indigenous Peoples, who seek to defend their rights against exploitative practices. After decades of intense mobilisation, important gains have been made at international level regarding the opportunity for Indigenous Peoples to have a say on these matters. Notwithstanding this, the right to prior consultation and the FPIC of Indigenous Peoples on the ground are far from being fully applied and guaranteed. And, even when prior consultation processes are carried out, the outcomes remain uncertain.
This volume rigorously investigates the causes of this implementation gap and its consequences for the protection of Indigenous Peoples’ rights, lands, identities and ways of life in the Latin American region.
Author(s): Claire Wright, Alexandra Tomaselli
Series: Routledge Studies in Development and Society
Publisher: Routledge
Year: 2019
Language: English
Pages: 294
Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
List of illustrations
List of contributors
Preface
Acknowledgements
Introduction
Notes
References
PART I: Defining prior consultation
1. Indigenous Peoples’ contributions to multilateral negotiations on their rights to participation, consultation, and free, prior and informed consent
Introduction
Early affirmations of Indigenous rights to participation, consultation, and consent
Participation, consultation, and consent in the ILO Conventions
The UNDRIP drafting process
Conclusions
Notes
References
2. Towards a global framework on business and human rights, Indigenous Peoples, and their right to consultation and free, prior, and informed consent
Introduction
The global framework on business and human rights and its focus on Indigenous Peoples
International standards on the right to consultation and Free, Prior and Informed Consent
The Inter-American Human Rights System and Indigenous Peoples’ rights
Business activities in the recent case law of the Inter-American Court of Human Rights
Final thoughts: what role for businesses vis-à-vis consultation and Free, Prior and Informed Consent?
References
3. Binding consent of Indigenous Peoples in Colombia: an example of transformative constitutionalism
Introduction
Transformative case law of the Constitutional Court of Colombia
The main developments of Colombian case law
Conclusion: towards binding consent?
Notes
References
4. Indigenous Peoples’ experiences of resistance, participation, and autonomy: consultation and free, prior and informed consent in Peru
Introduction
Constitutional context, ILO 169 and the UNDRIP
Implementation of the right to consultation in Peru
Experiences of Peruvian Indigenous Peoples with Consultation
Conclusion
Notes
References
PART II: Administrating prior consultation
5. The coupling of prior consultation and environmental impact assessment in Bolivia: corporate appropriation and knowledge gaps
Introduction
EIA in environmental governance in the Global South: a critical inquiry
Prior consultation and EIA in Bolivia
Pro-extraction information in the EIA
EIA knowledge: the only game in town
Corporate disrespect of achieved agreements
Discussion and conclusions
Notes
References
6. Prior consultation as a scenario for political dispute: a case study among the Sikuani Peoples from Orinoquía, Colombia
Introduction
Prior consultation in Colombia
Oil invasion in Orinoquía’s Indigenous territories
Oil companies, consultation, and irregularities
Staging a dispute: Wacoyo’s experience of prior consultation
Conclusions
Notes
References
7. Prior consultation as a door opener: frontier negotiations, grassroots contestation, and new recognition politics in Peru
Introduction
Peru’s legislative framework: from mobilisations to law
Grassroots contestation and narrow consultations in the extractive sector
Through the back door: intercultural reforms at the national level
Conclusion: the combined effects of legal change, policy reform, and grassroots contestation
Notes
References
8. Processes and failures of prior consultations with Indigenous Peoples in Chile
Introduction
A short overview of Indigenous Peoples in Chile and their rights
The Chilean legislative framework on the right to prior consultation of Indigenous Peoples
The institutional consultations in Chile (2009–2017)
Concluding remarks
Notes
References
9. Institutional scope and limitations of the right to consultation and the free, prior and informed consent of Indigenous Peoples in Mexico
Introduction
Direct democracy and Indigenous consultation
The right to Indigenous consultation within the Mexican State
The right to consultation in the Indigenous consultation system of the CDI
Indigenous consultation from the perspective of the National Human Rights Commission
Conclusions
Notes
References
PART III: Institutionalising prior consultation
10. The construction of a general mechanism of consultation with Indigenous Peoples in Costa Rica
Introduction
Discourse of national identity and exclusion of Indigenous culture in Costa Rica
Recognising the right to prior consultation in Costa Rica
Introductory regulations and case law on International Human Rights Law
The process of creating a Mechanism for Consultation with Indigenous Peoples (CMGDPI)
Executive Directive 042-MP
Executive Order 40932-MP-MJ
Some conclusions
Notes
References
11. The construction of a national mechanism of prior consultation in Honduras
Introduction
Contextualisation and status of Indigenous Peoples
Regulatory framework
Construction of the mechanism of prior consultation in Honduras
Challenges and conclusions
Notes
References
12. Towards an effective prior consultation law in Paraguay
Introduction
Indigenous Peoples in Paraguay
Legal framework
The path towards a protocol on prior consultation
The practice of consultation
Conclusions
Notes
References
PART IV: Avoiding prior consultation
13. The failure to consult Indigenous Peoples and obtain their free, prior and informed consent in Ecuador: the Yasuní ITT case
Introduction
Ecuador’s legal framework for Indigenous Peoples’ consultation and FPIC
The Yasuní and the ITT Initiative
The Yasuní-ITT: the failure to consult and obtain FPIC
A missed opportunity for broader social participation
Conclusions
Notes
References
14. The right to consultation and free, prior and informed consent in Argentina: the case of Salinas Grandes-Laguna de Guayatayoc
Introduction
Current legislation
Territorial disputes: Law 26,160 of 2006
Right to consultation and Free, Prior and Informed Consent
Lithium: white gold
The case of Salinas Grandes-Laguna Guayatayoc
Conclusions
Notes
References
15. Lack of consultation and free, prior and informed consent, and threats to Indigenous Peoples’ rights in Brazil
Indigenous Peoples and threats to their rights in Brazil
The right to consultation and the Free, Prior and Informed Consent of Indigenous Peoples in Brazil
Judicial decisions
Raposa Serra do Sol case
Belo Monte case
The non-implementation of consultation and FPIC in Brazil
Indigenous protocols for consultations
Conclusions
Notes
References
PART V: Rethinking prior consultation
16. Implementation of the right to prior consultation of Indigenous Peoples in Guatemala
Introduction
Indigenous Peoples in Guatemala
The Right to Prior Consultation and Free, Prior and Informed Consent
A brief background of the implementation of prior consultation in Guatemala
Forms of Consultation for Indigenous Peoples in Guatemala
Community consultations
Municipal consultations
Prior consultation
The judgement in the San Rafael Mining case
Initiatives for implementing the Right to Prior Consultation
Regulations established by the Executive Body
Operational Guide for the Implementation of Prior Consultation for Indigenous Peoples
Legal initiatives before the Congress of the Republic of Guatemala
Concluding remarks
References
17. From consultation to consent: the politics of Indigenous participatory rights in Canada
Introduction
Canada’s ambiguous commitment to the international Indigenous rights regime
From principle to practice: consultation and consent under Canadian law
Existing participatory mechanisms and their limits
Indigenous strategies for asserting FPIC
Conclusions
Notes
References
PART VI: Lessons learned
18. From the implementation gap to Indigenous empowerment
Introduction
Significant findings
Inside the implementation gap
Other implications for policy and research
Final remarks
Note
References
Index
