The 169 Convention of the ILO is the first document to reference the important need to “recognize the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.” The general requirements for an indigenous community consult are established in Article 6 of the convention that stipulates that governments shall:
“…consult the peoples concerned, through appropriate procedures and through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly … the consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures”.
According to the Committee of Experts on the Application of Conventions and Recommendations, consultation under the agreement implies that:
- The consultations shall be formal, plentiful and undertaken in good faith, it shall have honest dialogue between government and indigenous community and tribes characterized by communication and understanding, mutual respect, good faith, and a sincere desire to agreement;
- They shall establish appropriate mechanism at a national level, and they must adapt to the circumstances;
- The consults shall be conducted with institutions representing the indigenous communities and tribes in relation to legislation and administrative measures;
- Consultations should be held to reach an agreement or obtain consent on the proposed measures. In another document the United Nations Declaration on the Rights of Indigenous Peoples, in which it doesn’t state new rights, rather that it reflects on the existing rights that revolve around the indigenous communities. Despite not having the necessary force of a treaty, when adopted by the General Assembly, it is a reference in good faith for all the member states of the UN.
About the Indigenous Consult, the United Nations Declarations on the indigenous rights have fifteen articles that refer to the participation of the indigenous communities in the decisions- making relating to the effects of their lives, such as articles 18, 19, and 20 that stipulates:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Being one of the most important articles on the document which recognizes that indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress. And importantly, that indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.
Metztli Sarai Hernández Garcia;
Lic. Antropología Social por la Universidad Autónoma Metropolitana.
- Understanding the Indigenous and Tribal People Convention, 1989 (No. 169). Handbook for ILO Tripartite Constituents / International Labour standards Department. International Labour Organization. – Geneva, 2013.
- United Nations Declaration on the Rights of the Indigenous Peoples. 2008.
- Translated by Metzli Sarai Hernandez and Yarisell Yajaira Molina