SANTIAGO DE CHILE (ILO News) – ILO Bureau for Employer’s Activities (ACT/EMP) and Chile’s Confederation for Production and Trade (CPC) launched, August 4, the Regional Report: “ILO 169 Indigenous and Tribal Peoples Convention in Independent Countries and Prior Consultation of Indigenous Peoples in Investment Projects”.

Representatives of Latin American employer’s organizations were invited to the presentation, which included a session for comments on the document.

The report contains a compilation of studies conducted between 2013 and 2014 on the implementation of prior consultation, as it is established in the ILO Convention 169, the Indigenous and Tribal Peoples Convention, in four Latin American countries: Chile, Colombia, Costa Rica and Guatemala. The focus of the report is on the impact that these processes have in investment projects.

These studies looked into the main challenges States confront in order to implement prior consultation, and included data about processes conducted both in selected countries and at the regional level.

The report identifies as one of the biggest obstacles for implementing prior consultation in Latin America the high level of distrust between the interacting parts (States, indigenous peoples and private business), which complicates dialogue and agreement generation.

Additionally, the absence of permanent spaces of dialogue between the State and the indigenous peoples means that consultation about an investment project is the only space where the historical demands of indigenous peoples can be solved, increasing therefore the tensions and pressure on these investment projects.

Another key aspect is the lack of systematized information about indigenous peoples, their traditions, activities and cultural places, which complicates the analysis about the consequences of a possible investment project – often ending in court cases.

The report also highlights the high implementation costs of a consultation – such as relocation expenses, food allowances, hiring of external consultants for the indigenous peoples, etc.

The employers pointed out that delays in implementation prior consultations on investment projects impacts directly on the economy and workforce and causes loss of local profits.

In the specific cases of energy and infrastructure investment projects, there are impacts on energy costs and prices and on connectivity.

Regarding institutional aspects, the report highlights the lack of consultation structures, official procedures and officials skilled enough to control these processes.

The text also examines the expectations of indigenous peoples about consultation processes and their results, especially regarding the right to veto an investment project (which is not a possibility considered by the 169 Convention). In this context, the transfer of responsibilities from the State to private enterprises is one of the main difficulties when it comes to indigenous peoples’ expectations.

The report reviews regulation processes on prior consultation, its implementation in the four countries, the main difficulties regarding particularly public and private investment projects, and develops the following recommendation for States:

1. To launch permanent dialogue spaces between the States and indigenous peoples. In order to tackle the current situation of mistrust, the States must develop permanent and institutionalized dialogue spaces with indigenous peoples, allowing for the address of the historical demands of these peoples, establish ad hoc dialogue mechanisms relating to lands and territories, and encourage the participation of civil society actors and businesses;
2. To foster participation requests in the planning of territories. Indigenous peoples must participate in land use planning in order to allow their concerns, hopes and perspectives to be considered by the State when promoting development in indigenous territories;
3. To systematize, unify and keep up-to-date a registry on indigenous peoples. In order to favour the visibility of these peoples in society, and consider their organizations in dialogue and consultation processes;
4. To consider resources for the implementation of prior consultation. This implies the involvement of resources to develop processes relevant to indigenous peoples’ reality, such as the implementation of workshops and transfers of public servants, experts and leaders when necessary;
5. To recognize, respect and promote the strengthening of indigenous organizations. The success of a consultation and dialogue process requires organized and legitimate counterparts. It is recommended that States facilitate capacity and internal governance strengthening tools to the indigenous peoples and their organizations;
6. To study institutional mechanisms which allow indigenous peoples to benefit from the projects in their land. The State’s responsibility to share the benefits of prospecting and exploiting natural resources with the indigenous peoples, as established in Article 15 of the Convention 169, must not be transferred to private businesses, because it generates expectations difficult for enterprises to meet and creates conflicts between the indigenous peoples’ organizations;
7. To create a competent institution dealing with implementation of prior consultation. The experience of countries which have established internal regulations with generic criteria to implement prior consultations demonstrates that this kind of regulation contributes to the implementation of prior consultation, because it clarifies terms which normally are ambiguous and create different interpretations and expectations, generating conflict; and
8. Promote training and dissemination capability on Convention 169. The State is responsible of fostering training processes both for indigenous peoples and public servants and general public, allowing for a consultation process which is informed and consistent with the Convention.

The study was a result of a request by employer’s organizations for ACT/EMP to research the regulatory and institutional challenges of the implementation of Convention 169 and the right to prior consultation in the region.

It is worth noting that 169 Convention, from its adoption in 1989, has been ratified by 22 countries (15 of them Latin American States).