Codifying Free, Prior and Informed Consent: Comparative Country Approaches in South America

By Kirsa Shelkey 

This past semester, I had the wonderful opportunity to attend the Rocky Mountain Mineral Foundation’s Conference on International Mining and Oil & Gas Law, Development, and Investment in Quito, Ecuador. The course ran three days, from April 26-28, 2017. The third day focused heavily on the environment, sustainability, and indigenous rights. I was pleasantly surprised that a Mining and Oil & Gas Conference would dedicate so much time to these topics, and particularly to consultation with indigenous communities.

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 After following Standing Rock and reading many Indian and environmental cases claiming National Environmental Policy Act (NEPA) violations this semester, it was refreshing to view consultation beyond its codification in the United States. A panel, consisting of legal counsel from Colombia, Peru, Paraguay, Bolivia, and Chile discussed and compared how their respective countries both codified and implemented consultation in relation to domestic mining and oil & gas projects.

ILO 169

In 1989, the International Labor Organization (ILO) adopted the Indigenous and Tribal People’s Convention (ILO 169). ILO 169 entered into force on September 5, 1991, and is currently ratified by 22 countries around the world, predominantly in South America. ILO 169 legally binds countries which are signatory. (The United States and Canada are not signatories.)

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Free, Prior, and Informed Consent

Free, prior, and informed consent (FPIC) is arguably the most important principle to come out of ILO 169. Article 15 and 16 state that indigenous peoples have the right “to participate in the use, management and conservation of these resources.” Before any exploration or exploitation of sub-surface mineral rights can begin, indigenous peoples are entitled to consultation where extraction impacts indigenous land. Finally, indigenous peoples cannot be removed from their ancestral lands without their free, prior and informed consent.

While ILO 169 required most South American countries to codify indigenous rights to FPIC and consultation into domestic law, corruption and implementation hinder whether consultation can domestically be considered meaningful. The Conference panelists comparatively analyzed how codification of FPIC resulted in various forms of consultation across South American, with implications for indigenous peoples and mineral extraction investors. The countries implemented ILO 169 and FPIC differently, because they do not uniformly agree as to (1) who needs to be consulted, (2) what right is protected, (3) what triggers consultation, and (3) when consultation is complete.
Who needs to be consulted? Who qualifies as indigenous?
In Article 1, ILO 169 defines the communities it applies to, including tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; and peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Whether or not a group self-identifies as indigenous is strongly taken into account. The definition of indigenous in most South American countries hinges on whether the community is pre-founder (the Spanish) descendant. This definition does not include the Quechua or Aymara. Colombia, however, includes “ethically differentiated communities” within its scope, in recognition of its rich multiculturalism. Therefore, distinct African communities brought to Colombia by the Spanish are included and must be consulted.       

What right is protected?

As countries party to ILO 169, Chile, Argentina, and Paraguay, constitutionally recognize indigenous peoples’ right to consultation, but lack laws regulating consultation procedure. In Chile, indigenous peoples must show bad faith before they can successfully claim they were denied their right to consultation. This has proven a very high burden. Colombia, Ecuador, and Peru, to some extent, recognize that consultation is a procedural right, and have codified the process. Colombia’s process, for example, requires certification whether indigenous peoples do not inhabit extraction areas, coordination, pre-consultation, including co-establishment of an appropriate methodology for consultation, and documented consultation. While Peru’s consultation process is regulated, the panelist pointed out that corruption dramatically affects the process in Peru.

What triggers consultation? When does consultation occur?
            The countries represented by the panelists vary widely as to when consultation is triggered. In both Paraguay and Peru, for example, consultation is not triggered until after environmental review and the EIA are complete. Consultation is required when an administrative measure directly affects indigenous communities. In Paraguay and Peru communities are not directly affected until construction or mining operations actually begin, so consultation is triggered very late in the process. The Peruvian panelist pointed out that late consultation negatively impacts both indigenous communities and extraction companies. On the one hand, investment and corruption might compel approval of a project that late in the game; the decision to move forward has already been made. On the other, where consultation alters the original exploration plan, a new EIA or other changes financially impact investors and create an insecure business climate. In contrast, Colombia’s consultation occurs before both environmental review and licensing.
When is consultation complete? What does successful consultation look like?
In no South American country does ILO 169 convey a domestically codified indigenous veto right to mineral extraction affecting indigenous lands. However, recent case law in Colombia suggests that FPIC and consultation are closer to a veto power than previously thought. Colombia requires indigenous communities to understand the link between the project and how the project will impact them. Colombia essentially requires indigenous communities to give social license to resource extraction projects affecting their lands. This gray area (social license, but not a veto right) adds instability to mineral and oil & gas investment in the country, and as the Chilean panelist pointed out, reduces Colombia’s competitiveness in the sector. The Colombian panelist responded that, while he agreed, Colombia was setting a standard, making consultation more meaningful, and perhaps considering a shift to renewables. 
In Peru, Chile, Argentina, and Paraguay, while consultation is aimed at achieving agreement, the State can move forward with a project without indigenous consent, similar to the United States’ approach under NEPA. Chile only requires that bad faith occurred in communications with indigenous communities. 
All of the panelists further expressed that a gap exists between law and procedure and what happens in practice in their respective countries. While FPIC is codified across most of South America, it seems there is still an uphill battle for indigenous peoples in terms of meaningful consultation and indigenous land rights. However, some countries are doing better than others. Colombia and Ecuador seem to be taking a more proactive role in protecting indigenous rights to the FPIC and consultation envisioned by the ILO.
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