Indigenous Peoples, Identity, and Free, Prior, and Informed Consultation in Latin America

Abstract

This chapter documents the social life of the right to free, prior, and informed consultation in Latin America. Challenging the original intent of the signatories of International Labour Organization (ILO) Convention 169 on Indigenous and Tribal Peoples (1989), Indigenous peoples, subaltern communities, and their advocates—a tacit coalition of activists, scholars, judges, legislators, and diplomats—work at the intersection of law and anthropology to redefine and substantiate the right to consultation. Two movements characterize this endeavour. First, the right is being broadened, significantly expanding the legal subjects able to claim its enforcement. Second, consultation is being upgraded from a soft to a solid right, deepening it, so to speak, as a way of overcoming the procedural trap that reduces consultations to rituals of domination. Interestingly, corporations and multilateral banks are acknowledging this decolonizing reinterpretation of the right to free, prior, and informed consultation. While its full-blown implementation as an expression of the right of Indigenous self-determination is still utopian, both broadening and deepening the right to consultation empower Indigenous and subaltern communities in their daily struggles against extractivism and developmentalism.