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Right to Prior Consultation: Challenges and Opportunities for Stakeholders in the Andean Region

The indigenous peoples’ right to prior consultation is being discussed in Latin America. There has been progress with norms and regulations in some countries, while others have regulation initiatives in different phases of approval. Despite interest shown by governments, profound difficulties are preventing enforcement of this right according to the minimum international standards for protecting indigenous peoples. Making this right an everyday practice requires commitment to these standards by the state, indigenous peoples and companies as well as resolving some critical nodes identified when implementing consultation processes.

The Second International Meeting on the 'Right to Prior Consultation in Practice: Challenges and Opportunities for Stakeholders in the Andean Region’ was organized by German Technical Cooperation (GIZ), the Spanish International Development Cooperation Agency (AECID), the Office of the Human Rights High Commissioner (UNHRC) and the UN Global Compact Regional Centre for Latin America on 27 and 28 October 2014 in Cartagena de Indias, Colombia in order to generate dialogue among sectors involved directly with this issue.

Government representatives from numerous countries of the Andean Region attended, as well as representatives of organizations, indigenous communities and extraction-based companies operating in countries of the region. The international meeting pursued the goal of promoting dialogue among indigenous peoples, states and companies to find shared understanding of the scope of this right and the procedures best suited to enforcing it on the basis of the recognized rights of indigenous people.

During the meeting, the three sectors discussed the challenges and opportunities of consultation processes, with input from each sector. Within this framework, one primary reflection during discussions has been the scope of the right to consultation. Consultation, it was discussed, cannot be viewed as an isolated policy or action but must be understood as an overarching requirement for states to create public policies favouring dialogue and for involving indigenous peoples. Consultation must be applied differently in each country because there are different institutional designs.

Trust among the stakeholders is a key element for ensuring any consultation’s success. There is much work to be done to re-establish trust between states and indigenous peoples and to generate dialogue that can promote trust between indigenous peoples and companies. The public institutions responsible for consultation processes are not strong enough and must be reinforced. The ombudsman function merits special attention, since these public advocates could play a major role in supervision, mediation and conflict resolution, despite their current institutional weaknesses.

As for corporate social responsibility, companies will have to make a huge effort to put it into practice within the due diligence framework established by the United Nations Guiding Principles on Business and Human Rights, also known as the “Ruggie Principles”. Moreover, environmental impact studies, generally conducted by companies, must be done responsibly and attempt to understand the realities faced by communities.

The event ended by assessing the results yielded by the dialogue and proposing recommendations for the future, contrasting particular opinions and preparing an open list of relevant issues regarding prior consultation to be considered from now on. It is very important for these dialogues to continue with the cooperation of international agencies that help bring stakeholders together.

Dialogue must also begin to address conflicts and solutions to them based on an analysis of real-life cases. Such discussions must focus on concrete cases, which can be presented after rigorous, systematic analysis, validated by the players involved in the dialogue. Another proposal was to move forward in the effort of collectively recognizing the rights of indigenous peoples and adopting relevant processes and strategies to exercise these rights. It was proposed to hold these dialogues in national-level settings and to strengthen relations between the `state and indigenous peoples.

It was suggested that indicators to measure process quality, standard compliance and results of prior consultation should be generated, which can be validated and monitored by all stakeholders. Concomitantly, mechanisms should be created to monitor, follow up and validate these processes. Another important recommendation was to reinforce the presence of high-level governmental representatives and involve private-sector decision-makers. Finally, it was proposed to develop a diploma programme for training on prior consultation, covering both the standards and concrete cases, which representatives of indigenous peoples, states and companies could attend jointly.

The stakeholders felt the meeting had achieved positive results, yielding an assertive dialogue about a heated, conflict-ridden issue. This has opened up the possibility of continuing with this process and addressing the issues that divide stakeholders and generate conflicts in the implementation of consultation processes.