Free, Prior and Informed Consent in Latin America: Changing Times for a Hard Won Right

Date of publication: 
12 May 2014

Inspired by the 2002 Tambo Grande referendum on a proposed mine in Peru, Indigenous and non-Indigenous peoples have been convening community referendums throughout Latin America, demanding the right to free, prior and informed consent (FPIC) regarding mega-projects on or near their lands.

FPIC is a principle recognizing Indigenous peoples’ right to self-determination, emphasizing their right to say yes or no to a policy or project which will impact them, before it commences, with adequate information and free from coercion. The principles of FPIC and prior consultation are enshrined in several sources of international law such as the International Labour Organization’s (ILO) Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In Guatemala, Colombia and elsewhere in Latin America, Indigenous and Afro-descended populations are disproportionally impacted by resource extraction projects. While a strong body of national, as well as international law outlines their right to FPIC and prior consultation, there is a systematic failure to recognize and enforce these rights, leaving Indigenous and Afro-descended people vulnerable to the dispossession of their lands and livelihoods from resource extraction projects such as mining.

Federico Guzman Duque, Colombian Deputy Justice and expert on Indigenous rights, warns that several Indigenous groups in Colombia are at risk of extinction as a result of the country’s internal armed conflict in Colombia, as paramilitaries, as well as guerillas fight for control of Indigenous lands and natural resources. Indigenous and Afro-Colombian communities have been disproportionally impacted by forcible displacement and egregious acts of violence in Colombia, in service of private interests, facing the ongoing violation of their collective rights to FPIC.

Duque, who testified in front of the All-Party Parliamentary Group for the Prevention of Genocide and Other Crimes Against Humanity, emphasizes Canada’s responsibility to act in this humanitarian crisis. He indicated, for instance, that Canadian mining companies, who benefit from this land grabbing, knowingly or not, are implicated in the situation. Given that Canadian mining companies have a significant presence in Colombia, this is very troubling. As of 2008, 52% of foreign mining companies engaged in metals exploration in Colombia were of Canadian origin.

In March 2011, Colombia’s Constitutional Court issued a historic ruling (T-129), ordering the suspension of three projects – two infrastructure projects and a mining concession – in the Chidima Tolo and Pescadito communities, located in the department of Chocó, for failing to gain the FPIC of the Embera Katío people. This ruling builds and expands upon previous jurisprudence regarding Indigenous people’s right to FPIC, including sentence T-769 in 2009, emphasizing the Indigenous right to FPIC regardless of the scale of a project.

In the departments of Santa Rosa and Jalapa, Guatemala, community members have pronounced themselves against mining on their territories in the 14 community referenda which have been held to date. Despite community opposition, Vancouver-based Tahoe Resources has continued to operate the Escobal mine in the area, leading to a situation of repression and violence.

In December 2013, the Constitutional Court upheld a community referendum convened in the municipality of Mataquescuintla, Japala in November 2012, based upon ILO 169. According to Mining Watch Canada, “the decision acknowledges the responsibility that municipal authorities have to convene such votes and to make decisions according to their results…” Additionally in July 2013, a Guatemalan Appeals Court found the Ministry of Energy and Mines (MEM) at fault for a lack of due process in considering a legal complaint against Tahoe Resources. Unfortunately, the mine continues to operate.

These historic rulings provide cause for measured optimism regarding the respect of Indigenous peoples’ right to self-determination. At the same time, the situation emphasizes the need for extraterritorial legislation to be enacted in “home state” countries such as Canada, where corporations are registered, to ensure that they respect human rights, as well as collective rights such as the right to FPIC.

The Right to FPIC for Non-Indigenous People

Inter Pares (2009) notes that in Colombia, “Non-Indigenous and non-Afro-Colombian communities, whether they are peasant farmers or small-scale miners (and many people are both) do not have the legal protection – however weak, and however weakly enforced – that Indigenous and Afro-Colombian communities do.”

There are limitations in the Guatemalan context as well. According to Guatemala’s mining law, for instance, the Guatemalan state is obliged to undertake a public consultation when an exploitation license is requested, with Indigenous and non-Indigenous people, but this is far from the FPIC standard.

Emily Greenspan, Senior Policy Advisor with Oxfam America’s extractive industries team, notes that, “FPIC is emerging as a best practice for safeguarding the human rights of all communities affected by extractive industry projects. These include, for example, the right to food, development, property, culture, and a healthy environment.” Emily observes that the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) “has been interpreted as requiring FPIC for communities that are non-indigenous (in addition to those that are indigenous),” and thus could serve as a tool for non-Indigenous peoples demanding participation in decision-making regarding projects that will impact them.

In Conclusion

The rich diversity of identities, and the ways of life accompanying them, coupled with the tendency towards resource extraction, which characterize Latin America, emphasize the need for protections for citizens (Indigenous and non-Indigenous), ensuring that they are meaningfully able to participate in decision-making regarding projects that will impact them.

Given a tumultuous history, as well as ongoing realities of marginalization and dispossession, the collective right to FPIC is important for Indigenous and Afro-descended peoples in Latin America. Unfortunately, much work is still necessary to ensure the hard fought right to FPIC is actually respected by Latin American states, as well as corporations. The manipulation of FPIC and consultation processes by states and/or companies, for instance, through fraud or rolling back of gains, present serious challenges.

Increasingly actors such as multilateral lenders and extractive industry associations such as the World Bank International Financial Corporation and the International Council on Mining and Metals are recognizing the need to incorporate FPIC in their policies. What this trend means in terms of changing the practices of mining corporations is yet to be seen.

All communities – Indigenous and non-Indigenous – deserve to live in peace and enjoy a healthy environment, and ought to have the right to FPIC. Thankfully, that’s starting to be recognized.

Stacey Gomez
Americas Policy Group

The views expressed in this blog are those of the author, and do not necessarily reflect the positions of CCIC, APG or its members.