Of all the countries in the study, Peru has made the most advances in defining the steps to request and conduct a consulta previa, what qualifies as a potential reason for consulta previa, and the state agencies responsible for defining, convening and negotiating the consultation with the communities. That has not meant, though, that the process is free of questions, concerns and even conflict.
"If the Indigenous community does not respond within the allotted time, the government begins dialogue stage."
1. Identification of the Need for a Consultation
What is done: Identification of legislative or administrative issues that require consultation based on collective rights, for example of language, land, water, or culture.
Who does it: Relevant government agency (for example, Ministry of Mining and Energy, Infrastructure, or Environment) consults with Vice Ministry of Intercultural Affairs (VCIM) to see if consulta previa is necessary. If determined that people affected are Indigenous and/or entitled to consulta previa, relevant government office carries out next steps of the consultation process with community or group, with technical assistance from VCIM.
What's produced: A decision on whether measure requires consultation.
What is done: Relevant government office meets with representatives of Indigenous groups to inform them of measure for consulta previa and determine methods, rules and responsibilities, how to distribute information, and logistics.
Who does it: Relevant government office with assistance from VCIM.
What's produced: Consultation plan, including obligations and responsibilities of all parties in process, deadlines, method, access, transparency and publicity, and places and languages in which meetings will take place.
3. Information Dissemination
What is done: Indigenous people receive proposal of measure to be consulted from the government in a culturally respectful manner and in appropriate languages.
Who does it: Relevant government office or agency.
What's produced: Documents are published on website of government agency responsible for consultation and disseminated through radio, TV and word of mouth.
4. Information about the Measure
What is done: Information is provided to affected community about measure: motives, implications, impact, and consequences of project--if necessary, using local language and customs.
Who does it: Relevant government agency with technical assistance of VCIM.
What's produced: Community understanding of proposal to be consulted.
||(OR AS IS ESTABLISHED BY THE RELEVANT GOVERNMENT AGENCY. ALSO FROM THIS POINT TO DIALOGUE STAGE CANNOT TAKE LONGER THAN 120 DAYS.)|
5. Evaluation by Indigenous Communities
What is done: Communities analyze, measure, study, and determine their position and impact project will have on their collective rights. If they come to a consensus:
Decision is documented and signed with signature or fingerprint;
- Decision is given to relevant government agency;
- Process ends and certificate of consultation is produced. If they have modifications or questions: Dialogue stage begins.
Who does it: Indigenous communities.
What's produced: Consensus among community in favor of consulted measure OR consensus to go into dialogue stage. If the Indigenous community does not respond within allotted time, the government begins dialogue stage.However, the community must present results of deliberation stage or organization will skip dialogue stage and go directly to the decision-making stage. If the Indigenous community does not respond within the allotted time, the government begins dialogue stage.
What is done:
- Dialogue between Indigenous community and relevant government office to reach agreement and consensus;
- Disagreements that result from internal deliberation stage are presented;
- Additional Indigenous communities can be added to process during this stage. It is understood that parties are negotiating in good faith toward finding points of consensus.
Who does it: Relevant government office and Indigenous community.
CAN BE EXTENDED UPON AGREEMENT OF BOTH PARTIES
- Petitioning organization can finalize dialogue process if it feels dialogue is not being conducted "in good faith," but it cannot finalize a decision;
- Indigenous groups can refuse to participate, but petitioning organization must exhaust other possibilities for dialogue with Indigenous communities.
What is done: Analysis of suggestions and recommendations of community and verification that collective rights of Indigenous communities and environment are ensured. If consensus was reached during dialogue stage, it is binding for both parties. If consensus was not reached, it is the responsibility of relevant government agency to ensure protection of the Indigenous community's rights.
Who does it: Relevant government agency.
What's produced: Final report published on websites of petitioning organization. Report must include measure consulted, consultation methodology, process, and final decision and agreements.
Compiled from information provided by: Jerónimo Carcelén and Valentina Mir (Chile); Diana María Ocampo and Juan Sebastian Agudelo (Colombia), Silvel Elías and Geisselle Sánchez (Guatemala), Cynthia Sanborn and Álvaro Paredes (Peru).