Regulation is a critical tool for ensuring the right to consulta previa, but some efforts give more weight to the interests of extractive companies that want fast-tracked consultation process. Countries have argued that national legislation is necessary for implementing the right to consulta previa because ILO 169 and the Inter-American Comission on Human Rights (IACHR) jurisprudence provide little support in developing a consultation process.
Meanwhile, Indigenous organizations argue that national and international courts must protect their right to consulta previa. For national implementation of the right to consulta previa to be in accordance with international standards, states must keep the following four points in mind.
- Issuance of the regulations must itself respect the right to consulta previa. All national laws and decrees that regulate the implementation of the right to consulta previa must be subject to a consultation process. The cases of Colombia, Peru and Ecuador demonstrate the opposite. The governments approved measures without consulting the appropriate Indigenous groups and their representative organizations.
- Regulations must reflect all international standards and treat them as a minimum baseline of protection. Regulations must include all international standards—ILO 169, IACHR jurisprudence and the UNDRIP. In that way, they will be able to construct—collaboratively with ethnic groups—standards that better guarantee protection of the right to consulta previa.
- Regulations must focus on the means of implementing consulta previa, not the content. National mechanisms should propose a general methodological framework of the right to consulta previa that outlines the steps that must be carried out in the process, the institutions that must participate and the costs of the process. Each consultation process is unique and includes the goal of protecting cultural diversity. As such, to guarantee the right the regulations should be seen as a tool that can help expand the application of consulta previa by the parties during each process, not limit it.
- Regulations must respect the right to free, prior and informed consent. The right to consulta previa includes the right to free, prior and informed consent, not merely consultation. A meticulous reading of ILO 169 establishes that right. As such, national measures must protect the right to consent in two senses. First, the consultation process—as the Chilean Indigenous organizations have argued—must end with consent on the final version of the regulation, law or decree. Second, the regulation must explicitly adopt the standard of consent recognized in international law.
Despite the tensions that growing extraction activities bring to the region, it is essential for Indigenous organizations, defenders of human rights, state officials, and advisors to private businesses to understand the importance of multiculturalism and to build tools that protect the right to FPIC.