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The Right of Indigenous People to Consultations on Projects

By Odilisa Gutiérrez - Odilisa Gutiérrez Mendoza & Asociados
Founding Partner and CEO


By Odilisa Gutierrez | Founding Partner and CEO - Wed, 11/16/2022 - 09:00

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In Mexico, historically, a large number of government projects have been carried out on land belonging to native peoples through expropriation, in which the government pays the owners of the land compensation and passes that land into the hands of the state. However, many of these land expropriations have been carried out without considering the opinion of Indigenous peoples, which is of utmost importance to ensure a successful project.

The expropriations in which the Indigenous peoples are not consulted for projects on their land are violations of human rights, since the owners of the land have the right to be consulted so they can  state whether or not they agree with the development of any project as well as to be informed about the benefits or harm that the project will bring to them. It is also important that whoever intends to occupy and use the land in these  communities provides all the facilities for the Indigenous peoples to express their concerns and proposals, as well as their decision in favor or against the project that is intended to be carried out on their territory.

Convention 169 of the International Labor Organization (ILO), relative to Indigenous and tribal peoples in independent countries, establishes that Indigenous peoples must be considered not only those that the state has recognized but, in general, those communities in which the settlers are descendants of those who were inhabitants of some region at the time of colonization and who preserve their own social, economic, cultural and political institutions, or parts of them.

This agreement establishes the obligation of the state to consult the Indigenous peoples, and the authorities must do everything possible, considering good faith and taking all care to reach agreements to promote a positive affectation and to the extent possible avoid, prevent or mitigate the negative impact on the Indigenous community that is going to suffer some affectation in their collective rights, such as a change of legal status in relation to their assets, whether it refers only to the land or reaches the cultural sphere in cases where it is necessary to change the place of residence.

Once the project to be developed is approved, the Indigenous peoples must participate, to the extent of their possibilities, in the benefits for the use and exploitation of the natural resources that have belonged to them and from which they accepted the project to be developed, in addition they must receive a fair compensation for damages that may be suffered with the completion of the project.

The consultation granted to Indigenous peoples must take place through participation in an open, equitable, free and voluntary dialogue to reach agreements with the state in which the parties express their conclusions. This must be done through an assembly in which they are clearly informed of the compensation to be made and the way in which the damages and losses that could be caused both in the preparation of the project and during its validity must be guaranteed.

However, if an agreement of will is not reached with the community and the process has concluded, the state's decision to carry out the project may continue, but the state will respect the rights of the community at all times.

In cases where the government intends to relocate the Indigenous communities , there must be prior consent between both parties. This should be done only when the health or life of the members of the Indigenous communities  are at risk or because with the project there is a risk that the community will become extinct.

It is of great importance that agreements are reached and that the consultation procedures are properly followed. If the Indigenous community agrees to carry out the project, the right to their property is being respected and at the same time significant government projects have the approval of Indigenous peoples and can be carried out in a consensual manner, it is very useful for both parties.

This also applies and is relevant in the case of investments made by individuals for the use and enjoyment of the land that belongs to the communities, since win-win agreements must always be sought. The best productive developments and exploitation of land are those in which the consent of the parties is reached. This is relevant because by reaching agreements that benefit all the actors, future problems will be avoided.

The United Nations Declaration on the Rights of Indigenous Peoples reinforces ILO Convention 169, and affirms that the diversity of peoples is what enriches the entire nation, as they are the ones who, with their traditions, contribute to sustainable and equitable development, besides the contribution they make to a healthy environment.

I believe that the right of Indigenous peoples to be consulted about the projects that are intended to be carried out in their community is a right that is fortunately recognized in the international treaties to which Mexico is a party and, therefore, also recognized by the Mexican state, which has adopted the unrestricted respect in the Mexican Constitution of the United Mexican States and that has been embodied in its laws, since our culture is focused on unrestricted respect for the person, their community and the recognition of equal rights with the rest of the inhabitants of this country. As a lawyer, I always try to act with total respect for human rights and that is why I am pleased that consultation is promoted because this also implies the protection of the human right to non-discrimination, especially that based on a person's origin.

We live in a world in which, we continue to discriminate, distancing ourselves from the law and forgetting that an inclusive society that respects the rights of others is a society that lives in harmony.

Photo by:   Odilisa Gutierrez

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