Right to Free, Prior and Informed Consultation and Consent in Latin America

09 Sep 2015

This is the executive summary of a report titled, Right to Free, Prior and Informed Consultation and Consent in Latin America, examining progress and challenges in this area in Peru, Bolivia, Brazil, Chile, Colombia, and Guatemala.

In 2011, at the request of Oxfam, the Due Process of Law Foundation (DPLF) published a report in March 2011 on the right of indigenous peoples to prior, free, and informed consultation in four countries of the Andean region: Bolivia, Colombia, Ecuador, and Peru. The report addressed the principal international regulations that have emerged from the various international bodies with jurisdiction to hear and decide these matters, as evidence of the soundness of the standards on the right to prior, free, and informed consultation and consent in international human rights law. It also included an analysis of the situation in those countries, highlighting the progress made at the constitutional, legislative, and judicial levels, and noting setbacks, through the examination of illustrative cases. Based on this analysis, recommendations were made with respect to each of the actors involved.

This study aims to update the processes described in 2011 and to contribute to the debate on the scope and content of this right, as well as the need for mechanisms that will enable indigenous and tribal peoples to not only take part in the decisions that afect their rights, but also to be the architects of their own development. To this end, DPLF and Oxfam agreed to move forward with this update.

The main objective of this publication is to evaluate the implementation of the right of the region’s indigenous peoples to prior, free, and informed consultation and consent by examining the situation in six countries. The progress and challenges in making the right a reality in Bolivia, Brazil, Chile, Colombia, Guatemala, and Peru are approached comparatively. The framework for analysis is international human rights law and, in particular, the international legal framework discussed at length in the 2011 publication of DPLF and Oxfam.

This study also rests on the acknowledgement of four essential aspects common to the six countries. The frst is the need to historically contextualize the current situation of indigenous peoples in Latin America, and their present relationship to the States. The intention is not to provide an account of the cycles of historical dispossession. Rather, it is to show that this history has created a fundamental mistrust and rejection of State representations by indigenous peoples, a situation that requires a historically sensitive perspective and an approach based on the rebuilding of trust. 

Read the full report here