In Mexico and in other countries in the region, the adoption of norms of general application has been discussed as an alternative to the implementation of the right to free, prior, and informed consent and consultation (FPIC) of indigenous peoples. With this publication, DPLF and Oxfam-Mexico seek to contribute to this discussion, based on the analysis of international standards, comparative law, and the challenges faced by other countries in the region. This report examines three specific processes of prior consultation in the Yucatan Peninsula and in the states of Oaxaca and Sonora, in order to assess some challenges for their implementation in Mexico. The three processes show how the absence of a state policy based on respect for international standards leads to an institutional vacuum and to decisions that generate distrust from the peoples and communities consulted.
In this context, the report seeks to provide input to answer the following questions: 1) Is a law on consultation and FPIC indispensable for the proper implementation of this fundamental right? 2) What are the essential aspects of any consultation and FPIC process that require some type of state regulation, either through general laws or sector-specific provisions? 3) Which implementation mechanisms have been used by those countries that do not have a legal framework of general application on prior consultation? 4) What are the risks, advantages, and disadvantages of adopting an implementation model for consultation and FPIC through law, decree, or regulation? 5) Does the concept of "legal certainty" as one of the motivations for the adoption of a law on the subject refer to legal certainty for affected indigenous peoples, or for the companies and entities of the State with interests in investment projects?
Among other conclusions, the report highlights that any consultation and FPIC implementation initiative should come from those who possess this fundamental right: indigenous peoples and communities. The imposition of a law, or even deliberation of initiatives of a general law on consultation and FPIC, invariably lead to the failure of the process and aggravates the strained relationship between indigenous peoples and the State.
Read the report here (Spanish only).