Controversy greets indigenous consultation database

12 November 2013

The long-awaited identification of the indigenous communities that will have the right to prior consultation has begun, but critics say the law will be undermined by further delays and restrictions not compatible with international standards. Mining minsters and companies have opposed the introduction of prior consultation, arguing it will delay investment decisions.

Publication of the official database of indigenous peoples began in late October. It identified 52 peoples who will have the right to prior consultation on state decisions affecting them, under legislation implementing ILO Convention 169. Information on specific communities concerned was only provided in five cases. Ministers said they had begun publication of the database following the government’s victory in a legal challenge to the definition of indigenous peoples in the consultation law.

Publication will continue gradually, with no end date determined, and further data will be gathered in a 2017 census, according to ministers. Environmental NGO Cooperacción criticised this approach, saying authorities should have made use of existing data. The government had not made clear what methods would be used to identify other indigenous communities and the measures could delay application of the right, they added. Irma Montes, a columnist for El Comercio, wrote that “This means there won’t be a response to this crucial question under this government… Rest in peace, consultation law.”

Confusion remains over the legal status of the database. Vice-minister Patricia Balbuena has said the database signifies a “recognition of the collective rights of indigenous peoples”, but on other occasions she has described it as “for reference purposes, prior consultation will be done on a case-by-case basis”, saying “the database doesn’t give you a right”.

Some civil society groups have criticised indications by the vice-minister that rondas campesinas (peasant groups formed for self-defence during the internal conflict) will not be granted prior consultation. They say this is contrary to existing laws.

Concerns remain that millions of indigenous people in the Andes will be deprived of the right to prior consultation, with the measure restricted to Amazonian communities. The government has left intact a directive passed by the previous administration that imposes eligibility criteria beyond those set out in ILO 169: communities must speak an indigenous language and hold communal lands.

Juan Carlos Ruiz Molleda, of the Instituto de Defensa Legal, said that, “Indigenous people aren’t frozen in time. They may have lost their native language and been violently expelled from their lands … but that doesn’t mean that they lose their other customs or their identity.” Indigenous rights advocates are calling for decisions on who will qualify for the database to be made in consultation with representative organisations.

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