The Right of Indigenous Peoples to Prior Consultation

30 June 2011

In the context of their work in Latin America, the Extractive Industries Program of the international confederation Oxfam and the Due Process of Law Foundation (DPLF) have observed a substantial increase in the number and intensity of social conflicts, which threaten democratic governance and stability in several countries.While the causes of these conflicts vary, a significant proportion of them—and probably the most prominent—are associated with natural resources management and with resource exploitation and infrastructure projects. These conflicts, which are a reflection of latent tensions between the stakeholders, pit two divergent views of development against one another. On the one hand, States seek to encourage private investment with a view to promoting development in accordance with the relevant constitutional norms.On the other hand,indigenous peoples are asserting their rights to use and enjoy their lands and to protect and manage them according to their own worldview, safeguarded by the constitution.These types of social conflicts are increasingly common and become particularly heated when natural resource extraction and infrastructure projects are undertaken without adequate prior consultation with the indigenous or tribal communities that could be affected, or without the free, prior, and informed consent of those communities where required. At the heart of disputes over land and natural resources, then, is the debate over the content and scope of the right to prior consultation and to free,prior,and informed consent.

In this context, Oxfam and DPLF have undertaken to disseminate information about the relevant international legal framework and related developments in international legal systems such as the United Nations, the International Labour Organization (ILO), and the inter-American system for the promotion and protection of human rights. State and governmental bodies,civil society organizations,and the communities themselves must take these international rules and decisions into account in framing discussion of these issues. Given the extent to which social protest relies on institutional mechanisms, including legal mechanisms,Oxfam and DPLF would like to encourage their use in addressing these types of conflicts in the domestic and international arenas. Toward this end, both organizations are concerned with reducing the practical obstacles to enjoyment of the right to prior consultation and to free, prior, and informed consent that have been encountered in different countries in the region.

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