Indigenous Peoples and Civil Society Organizations from Mexico, Latin America and the Caribbean address the implementation of the rights to previous, free and informed consultation and consent.

Mexico City, November 14, 2017. -

Indigenous peoples, communities and civil society organizations (who gathered in Mexico City to share experiences and validate the status of the implementation of the previous, free and informed consultation and consent (CPLI, in Spanish) in Latin America and the Caribbean) state that this right is not guaranteed according to international standards.

In Mexico and other countries of the region, the states are politically captured by companies who sought for privileges on accessing the natural common goods for extraction, energy and agroindustry sectors, at the expense of the indigenous peoples. On the legislative consultation initiatives, such peoples are excluded from the political processes and, as a rule of thumb, corporate pressure has more influence than the real claims and developmental priorities. 

Several countries are currently discussing the adoption of consultation policies, with the argument that the lack of such policies halts the implementation of such rights and damages the juridical security for investments. We are deeply concerned that, in Mexico, a law of this nature may institutionalize the consultation process as a simple administrative step and result in damages against the self-determination of the indigenous peoples and communities.   

The indigenous peoples and communities signing this statement indicate that the consultation processes developed in the region have not worked to guarantee their human rights. Quite the contrary, the consultation processes have turned into spaces to foster the legitimization and regulation of previous government-private companies investment projects. Overall, the consultation processes are not made beforehand; they are, however, carried out when the investment projects are already being implemented and/or approved. At the same time, they are best known for not complying with the obligations acquired by the State, not promoting the community division, the criminalization of leaders, ignoring the measures to ensure the participation of women and the identification of the different impacts damaging them, among other violations of human rights. Thus, the consultation processes have not been of good faith: they do not recognize the authority of the representative of the communities and their internal decision processes. In addition, several government officials with whom some agreements have been reached were replaced, appointing other officials that are not open to discussion, yet they seek imposition. The aforementioned strengthens the historical and structural discrimination situation suffered by the indigenous people. 

Also, when judicial processes are ruled in favor of these peoples to protect their rights and the authorities disregard these orders, the Judicial Branch does not follow the measures to demand its compliance.  This has happened even with rulings sentenced by Mexico's Supreme Court.

We also denounce the growing political pressure and the manipulation strategies of the communities in order to destroy their political and organizational processes to impose decisions in favor of interests of third parties about their territories and natural goods. In that sense, we would like to point out the following:   

a) Under the applicable international standards, CPLI and consultation are both a self-executable right. This means that it does not require a specific legal policies for it to become enforceable and implemented by the state authorities;

b) Some aspects of these legal projects in the different countries in the region are already being discussed through constitutional courts and treaties at the Inter-American Court and other supranational human rights organizations.

c) Several indigenous peoples and organizations of the region have positioned their preference for other consultation and CPLI implementation mechanisms, such as the community self-consultation and direct application protocols for enforcing the current constitutional and international standards;

d) The adoption of a specific law is a non-productive action if the governments do not follow the ruled public policies respecting the rights of the indigenous people. See, for instance, the number of journalists and human rights defenders murdered in Mexico and Honduras after adopting specific laws for their protection;

e) Such governments in favor of adopting consultation laws have "lower the bar" in terms of environmental and social requirements for investment projects bids in indigenous territories, making the consultation process information access rights vulnerable.

f) The laws or decrees adopted in some countries, as well as the legislative projects under discussion, restrict the rights of the indigenous people to express their previous, free and informed consent, which is expressly recognized at the UN Declaration on the Rights of the Indigenous People and international laws;

g) If one of the arguments for adopting such a law is to provide juridical security, it is important to bare in mind that, as a rule of thumb, the indigenous people do not have a due entitlement over their territories. The juridical uncertainty that affects such peoples the most, is not the lack of clear rules about previous consultation, yet the lack of state policies to limit and entitle traditional territories, in common agreement with the peoples and the communities.

Lastly, we reaffirm that self-determination must be the breaking point for any initiative that may impact traditional territories. We demand that the State respect the internal organization and deliberation spaces of the indigenous peoples and communities. The right to define their developmental priorities on these spaces must rule any state-related action.      

Indigenous City Hall of San Juan Cotzal, Department of Quiché, Guatemala

Juchiteco People Assembly

AIDA

Isthmus Indigenous People Assembly for the Defense of Land and Territories (APIITDTT)

Flor y Canto Indigenous Rights Center

Alexander von Humboldt Center (Nicaragua)

Abogad@s Collective Group

MA OGM Collective Group

Apicultural Chenes Collective Group

Wikiruta Defense Wixarika Regional Council

CooperAcción

United People Coordination for Water Conservation (COPUDA)

Regional and Popular Indigenous Xpujil Council

Chac-Lol Cooperative

Human Rights Defense Office for the People of Oaxaca

Derechos a la Tierra YA!

EDUCA

Due Process Foundation (Fundación para el Debido Proceso)

Fundar, Analysis and Research Center

LAVIDA

Maya People Consultation Observation Mission

Indigenous Women in Defense of Life (Mujeres Indígenas en Defensa de la Vida) 

Oxfam Mexico

PODER

ProDESC

Bolivia's Guarani People Assembly

Peruvian National Association of Ecological Producers (ANPEE)

Peace Services and Consulting

Tequio Jurídico A.C.