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Full Text
The Permanent Forum encourages analysis by States, the specialized agencies, academics, indigenous peoples and their organizations of the implementation of free, prior and informed consent principles and mechanisms regarding projects on indigenous lands and territories, and encourages them to submit such analyses to the Permanent Forum for consolidation and to identify good practices and barriers.
Responses
The Colombian State, following the guidelines set out in International Labour Organization (ILO) Convention No. 169, carries out processes of prior consultation as a prerequisite for the implementation of projects, legislative initiatives or administrative acts that have an impact on areas where indigenous peoples are present. The overall aim of prior consultation is to provide an opportunity for participation in which the ethnic groups located in the area of influence of a project, construction work or activity and the company engaged in it can hold a direct dialogue on the potential effects and impacts of these activities and can plan and reach consensus on agreements for mitigating and/or offsetting them. To this end, the law provides for two types of prior consultation, depending on when such consultation is carried out: one type for projects requiring environmental permitting, such as those for extracting or exploiting natural resources, and another type for projects not requiring environmental permitting, such as seismic exploration in the oil and gas sector. The Venezuelan government recongizes the right of indigenous peoples to utilize the natural resources found in their habitat is derived from the recognition of their rights as the original occupants of their ancestral and traditional lands and habitat, which are necessary to develop and safeguard their way of life, along with the recognition of their forms of social, political and economic organization. This right is contained in article 119 of the Constitution of the Bolivarian Republic of Venezuela. -The recognition of the rights to their habitat includes the possibility of control and decision-making by the indigenous communities regarding the activities taking place in or which may affect those areas; the possibility of involvement in the government established there; the right to collective title to land; the enjoyment of natural resources and the protection of areas sacred to indigenous peoples. -This right of control and decision of indigenous communities and peoples over the activities taking place in their habitat and territory is expressly established in article 120 of the Constitution of the Republic, which imposes on the State the obligation of informing and consulting with the indigenous communities prior to any proposed utilization of natural resources in their habitat. -The Basic Law on Indigenous Peoples and Communities devotes its chapter II to the right to prior informed consent. It establishes a series of guidelines for its due application, guaranteeing to indigenous peoples and communities respect for their institutions and authorities throughout the consultation process. The chapter’s most important contribution is to make prior and informed consent binding, establishing it as an essential requirement for conducting any activity that might have a direct or indirect impact on indigenous communities or peoples. The theoretical framework for Spain's Strategy for Cooperation with Indigenous Peoples (ECEPI), includes the basic principles that indigenous peoples have the right to free, prior and informed consent, including the right to reject proposals for development and other types of cooperation projects and activities, particularly those which affect their lands and territories. In that regard, any Spanish cooperation activities which directly or indirectly affect indigenous peoples shall respect this right. Russian governments reports states, before exploiting lands and resources which affect the living conditions of indigenous peoples, companies must obtain the free, prior and informed consent (see E/C.19/2005/3) of the indigenous peoples concerned. Indigenous peoples have the right to participate equally in negotiations through their representative institutions in order to share benefits. Where necessary, they should have access to legal representation to prevent their rights from being infringed upon by the illegal conduct of companies. The access provided to industrial companies for conducting mining operations on indigenous peoples lands, when granted as a result of negotiation processes that respect and strictly adhere to the principle of free, prior and informed consent, is a privilege, involving extremely risky industrial practices in some of the last remaining and ecologically sensitive environments.
Final Report of UNPFII Session 6 (2007)
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