Public Statement on regulation of prior consultation

Conectas and Justiça Global call for reforms in the working group created by the government to adress the issue Conectas and Justiça Global call for reforms in the working group created by the government to adress the issue


Conectas Human Rights and Justiça Global publicly express their concern over the process to regulate the Prior Consultation provided for in ILO Convention 169[1] that is being carried out by an Inter-Ministerial Working Group (IWG) of the federal government, under the coordination of the Ministry of Foreign Relations and the Office of the Secretary-General of the Presidency of the Republic.

Ever since the federal government announced its intention to regulate Convention 169, and more specifically since the creation of the IWG in January 2012, indigenous and traditional peoples, through their leaders and representative organizations, as well as civil society organizations that work in defense of their interests, have been contemplating and discussing the challenges that surround the creation of this legal framework.


The recent developments in the process of regulating Convention 169 in Brazil have demonstrated distortions in the application of the provisions of the Convention and the distance between the government’s proposal and the internationally established standards on the form, scope and objectives of the institution of Prior Consultation.

In first place, the process has been characterized by a lack of participation by the very indigenous and traditional peoples protected by Convention 169. This absence was very clear at the “Workshop with civil society on the process to regulate prior consultation – ILO Convention 169”, held on August 1 at the Office of the Secretary-General of the Presidency of the Republic, in Brasília, whose stated goals were i) to provide a “general overview” of the steps taken so far to regulate ILO Convention 169 and ii) to discuss “guidelines for the regulation process” and to define future steps.

Of the 32 national and international civil society organizations that were invited to this event organized by the IWG, none of them represented the indigenous and traditional peoples of Brazil. These organizations, through open letters, have contested the version of the government that the public hearings on the regulation of Prior Consultation have been participative, claiming that the meetings held so far have not included Brazil’s indigenous and tribal peoples[3].


We emphasize that the public consultation process for the regulation of Convention 169 is also subject to the ongoing requirements of the international treaty. In other words, the meetings between the government, which is responsible for the initiative to regulate Convention 169, and civil society, including the peoples directly protected by the treaty, must be participative and undertaken in good faith, with the objective of “achieving agreement or consent for the proposed measures”[4]. More important still, any measure taken to implement the provisions of Convention 169 “shall not be contrary to the freely-expressed wishes of the peoples concerned”[5].


The second troubling aspect of the regulation process is the risk of a setback that such a measure could have on the internationally recognized rights of indigenous and traditional peoples. The Office of the Secretary-General of the Presidency has publicly stated, in presentations given over the past few months[6], that the regulation of Convention 169 will interpret the right to Prior Consultation without the possibility for indigenous and traditional peoples to “veto” projects, even when these projects “affect them directly”.

The intention of the government to regulate Convention 169 without recognizing the right of indigenous and traditional peoples to have the final say on the desirability of adopting measures that result in a restriction of the enjoyment of their rights, their lands, their beliefs, their cultural habits, i.e. their material and immaterial riches, is absolutely incompatible with:


(i) the text of Convention 169 itself[7];

(ii) the provisions of other international declarations, agreements and treaties, such as the UN Declaration on the Rights of Indigenous Peoples[8];

(iii) the conclusions of the UN Special Rapporteur on the Situation of the Human Rights and Fundamental Freedoms of Indigenous Peoples[9]; and

(iv) the established jurisprudence of the Inter-American Court of Human Rights[10].


All these documents and bodies that address the fundamental rights of indigenous and traditional peoples establish as a fundamental goal of Prior Consultation the pursuit of the “consent” of these peoples before the adoption of administrative or legislative measures that could affect them.


It is a violation of the human rights of these peoples for any Branch of the State (Executive, Legislative or Judicial) to conceive that Prior Consultation is merely procedural and legitimizes the exploration of natural resources on their lands and restrict the enjoyment of their tangible and intangible rights, without them being assured power of veto over such decisions.


We call on the IWG to review the methodology, timetable and scope of the current process to regulate ILO Convention 169 so the rights-holders, currently reluctant in their participation, can play a leading role in creating the legal framework. It is essential that the process is conducted in a manner that assures good faith, transparency, maximum participation of the interested parties, suitability of the means of dialogue between the parties and, above all, that it establishes a domestic and international legal framework that assures indigenous and tribal peoples the right to give their free, prior and informed consent on measures that affect their lives and destinies.


Finally, we support the request made by indigenous and traditional peoples for the Brazilian government to demonstrate its unambiguous commitment to the cause of indigenous peoples, starting with the repeal of Decree No. 303/2012[11] of the Attorney General’s Office. Without this indispensable step, any meaningful dialogue on the regulation of ILO Convention 169 in Brazil is unrealistic.


[1] ILO. Convention 169, of June 27, 1989. Available at: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C169>. Brazil incorporated ILO Convention 169 into its domestic legal system through Legislative Decree No. 143/20002, of June 20, 2012, which was signed into law by the President of the Republic by Decree No. 5,051/2004, of April 19, 2004.


[2] Inter-Ministerial Decree No. 35, of January 27, 2012.


[3] The “Open Letter of the APIB on the regulation of the procedures of the right to prior consultation assured by ILO Convention 169” circulated on July 27 among civil society organizations and can be read at: <http://racismoambiental.net.br/2013/07/carta-publica-da-apib-sobre-a-regulamentacao-dos-procedimentos-do-direito-de-consulta-assegurado-pela-convencao-169-da-oit/>. Last accessed on August 8, 2013.


[4] ILO. Convention 169, Article 6, 2.


[5] ILO. Convention 169, Article 4.


[6] Presentation of the Office of the Secretary-General of the Presidency (“Participative process of regulating the procedures of prior consultation of ILO Convention 169”) during the Seminar “Human Rights and Complaint and Dialogue Mechanisms” organized by the Ethos Institute in São Paulo on June 11, 2013. Available here.


[7] ILO. Convention 169, Article 6, 2: “The consultations carried out in the application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures”.


[8] UN. Declaration on the Rights of Indigenous Peoples, Article 19: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” Available at: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>. Brazil voted in favor of the UN Declaration on the Rights of Indigenous Peoples, reflecting its commitment to the principles and objectives contained therein, as well as the obligation to grant legal guarantees to indigenous peoples. For details on the vote, cf. <http://unbisnet.un.org:8080/ipac20/ipac.jsp?profile=voting&index=.VM&term=ares61295>.


[9] When addressing the problems that surround the construction of a hydroelectric dam in Panama, the Special Rapporteur, James Anaya, stated: “For this reason, consent is a prerequisite for this type of project […]. Therefore, ILO Convention No. 169 […] expressly recognizes the need to hold consultations to achieve consent for any decision that results in the relocation of an indigenous community (articles 6.1 and 16.2), regardless of the public interest.” James Anaya. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples. Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development. Addendum. Observations on the situation of the Charco la Pava community and other communities affected by the Chan 75 hydroelectric project in Panama, of September 7, 2009. Available at: <http://unsr.jamesanaya.org/docs/special/2009_special_panama_chan_sp.pdf>.


[10] The Inter-American Court of Human Rights has a vast jurisprudence that recognizes the right of indigenous and traditional peoples from the region to “consent” to legal and administrative measures that affect them. In the judgment of the emblematic Saramaka vs. Suriname case of November 28, 2007, the Inter-American Court pronounced: “Paragraph 135. In this sense, the U.N. Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples has similarly observed that: “[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is likely that their communities will undergo profound social and economic changes that are frequently not well understood, much less foreseen, by the authorities in charge of promoting them. […] The principal human rights effects of these projects for indigenous peoples relate to loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, destruction and pollution of the traditional environment, social and community disorganization, long-term negative health and nutritional impacts as well as, in some cases, harassment and violence .” Consequently, the U.N. Special Rapporteur determined that “[f]ree, prior and informed consent is essential for the [protection of] human rights of indigenous peoples in relation to major development projects”. Available at: <http://www.corteidh.or.cr/docs/casos/articulos/seriec_172_ing.pdf>.


[11] Decree No. 303/2012, of the Attorney General’s Office, extends the demarcation of indigenous lands in Brazil to the constraints established by the Supreme Court in the judgment of the Raposa do Sol case, even though not all demarcation cases are the same. This Decree has been harshly criticized by Brazil’s indigenous and traditional communities.

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