Since the 1990s, and amidst the rise in large-scale development projects in Latin America, the right to consultation has emerged as a collective right used to defend indigenous and tribal peoples’ rights to the full use and enjoyment of their land, territory and natural resources. An interesting feature of the Latin American story of consultation rights has been the key role played by legal and institutional frameworks, and in particular, the use of existing court systems. This Brief analyses the development and progress made in defining and enforcing indigenous consultation rights through key rulings by the Inter-American Court of Human Rights and countries’ national courts. It also describes one particularly advanced national-level law in Peru that establishes the government’s responsibility to conduct prior consultation before embarking on large-scale development initiatives and extractive industry activities. Latin America’s advances, as well as ongoing difficulties, are presented with the aim of offering valuable lessons for other regions facing similar challenges in protecting the right to consultation.
The Latin American experience shows that a strong regional human rights system and, in particular, a regional human rights court, can be effective mechanisms for strengthening indigenous peoples’ right to consultation in the region, lending weight to calls for establishing and strengthening similar courts in other regions.
The emergence and mobilisation of social and indigenous movements and organised civil society groups as actors capable of producing political change has been fundamental to the region’s achievements in consultation rights.
de la Fuente López, A. ELLA Policy Brief: Defending Latin America&#8217;s Indigenous and Tribal Peoples&#8217; Rights through Laws and the Courts. ELLA, Practical Action Consulting, Lima, Peru (2013) 8 pp.