Between August 2013 and January 2014, an Americas Quarterly research team traveled to four countries in Latin America—Chile, Colombia, Guatemala, and Peru—to study the varied implementation of consulta previa across the Americas.
The four countries we studied have all ratified International Labour Organization Convention 169 (ILO 169), a binding international treaty that establishes the right of Indigenous and tribal peoples to be consulted when a policy or project affects their culture or heritage. With support from the Ford Foundation and local researchers in the four countries, we spoke to Indigenous and Afrodescendant leaders, company representatives, government officials, lawyers, and NGOs to better understand their experiences, successes and frustrations with consulta previa.
View a slideshow from AQ’s consulta previa research trips below.
We discovered that in the adoption, implementation and enforcement of this important right the results have been mixed. Five variables explain many of the differences and difficulties:
- Clarity of the laws and regulations governing the process;
- Consultation with communities in the development of the laws and regulations;
- Interpretation of laws and regulations by the judiciary and the government (including who is entitled to the right of consulta previa);
- Administrative capacity of the state office or offices charged with implementing and enforcing the processes (including budget, authority, cadre of trained officials, and clearly delineated roles and rules);
- Legacy of violence and relations among the communities, the private sector and the state.
For example, Peru, the first country in our study to pass a law to regulate consulta previa, in 2011, still faces the challenge of determining who qualifies for consultations (many Andean groups and Afro-Peruvians say that they are being left out). That issue has become a sticking point for many of the Aymara and Quechua communities in the mountains, where the bulk of the country’s mining occurs. At the same time, however, Peru has also made the greatest strides in clarifying the process, even developing a website detailing all the steps (http://consultaprevia.cultura.gob.pe/quipu/), and vesting state offices to manage the consulta previa process (Vice Ministry for Intercultural Affairs) and address growing social conflict (Oficina Nacional de Diálogo y Sostenibilidad and the Defensoría del Pueblo).
View a slideshow from the AQ research team’s trip to Iquitos, Peru.
In Colombia, due to a lack of successful legislation, the Constitutional Court has largely set the standards on how to carry out consulta previa. Given Colombia’s strong legalistic tradition, this would seem to be a good stop-gap measure, but a series of conflicts over infrastructure and mining investments—some of the upheaval linked to long-standing local armed conflicts—have raised fears that communities may tie up projects under the constitutional appeal process, tutela, claiming that consultations fail to meet an as-yet-undefined process.
The Chilean government’s attempts to legislate regulations to govern its 2008 ratification of ILO 169 were rejected—first by communities and then by the Ministry of Social Development in 2014—for its failure to consult the affected communities in the regulations’ development. Meanwhile, in the absence of a clear process or a designated office to conduct the process much of the responsibilities have fallen under environmental licensing, while forward-looking companies have sought to develop their own dialogue with local communities.
And in Guatemala, the government has failed to pass a law to regulate consultation at the national level. In a country deeply scarred by decades of civil war and distrust, communities have carried out their own popular consultations, whose legal standing is a source of debate and conflict, and many are skeptical of any national regulation.
Photos courtesy of Seb Agudelo (Colombia), James Rodríguez (Guatemala), Nicolas Villaume and Alana Tummino (Peru).