Indigenous Peoples – A Hinder to Development?: The Right to Prior Consultation in Colombia and Peru

Abstract: The thesis deals with the following question: Do the national legislation initiatives of Colombia and Peru, aiming at protecting the Indigenous Peoples’ right to land through their right to be consulted prior to any measures that may affect their lives and lands, reach the internationally set standards that these countries have committed to? The thesis concludes that the term Indigenous Peoples has not been defined in International Law. Today two criteria are being used: subjective and objective elements. Most important is the individuals’ Indigenous self-identification but also objective elements such as cultural distinctiveness or special relationship with land is crucial. Today this description is used by the UN, the ILO and most states, among them also Colombia and Peru. The land is fundamental for most Indigenous Peoples and most states recognize this special relationship, among them also Colombia and Peru. The right to land is covered by the ILO Convention 169 as well as implemented and protected in Colombian and Peruvian domestic legislation. The right is though not absolute and the states can restrict it under certain circumstances. The Inter-American Court of Human Rights has dealt with a number of landmark cases related to the Indigenous Peoples’ right to land. The Indigenous Peoples’ right to prior consultation is not as well-recognized as the right to land. The right to prior consultation has though recently gained more recognition and visibility after a number of landmark cases at the Inter-American Court and in the domestic courts in Colombia and Peru. Even if the Indigenous Peoples don’t have the right to veto on any proposed measures, there is a rising consensus among international Human Rights bodies that for certain large-scale projects Indigenous Peoples should have to give their Free, Prior and Informed Consent, prior to any further measures. This is though still debated and many states oppose to this view. Colombia has no specific legislation on the right to prior consultation. There is certain legislation in place, but this doesn’t comply with the provisions of the ILO Convention 169 or the judgments by the Inter-American Court. The Colombian Constitutional Court has dealt with a number of landmark cases related to this right, but the political will still seems to be missing. Peru has a specific law on prior consultation that was adopted in 2011, and which probably is one of the most progressive laws on this matter in the world today. Also the Peruvian Constitutional Tribunal has ruled in a number of landmark cases related to this right. Like in Colombia though, there seems to be a political unwillingness to respect Indigenous rights, especially the right to land in conjunction with the right to prior consultation. The thesis concludes that the protection of Indigenous’ rights has improved, but that financial interests and political unwillingness are still great hinders.