Development of Processes for Prior Consultation Under the 169 Convention of the International Labour Organization’S (ILO) (BR0082)

to study and assess the procedures for prior consultations provided for the 169 Convention of the ILO on indigenous and tribal peoples with the aim of ensuring the effective participation of these peoples on decision-making processes regarding legislative or administrative measures that affect them directly. This commitment is a joint effort of the General Secretariat of the Presidency and the Ministry for Foreign Affairs, with the support of the Ministry of Justice.

Commitment 5.3. Development of processes for prior consultation under the 169 Convention of the International Labour Organization’s (ILO)

Commitment Text: To study and assess the procedures for prior consultations provided for the 169 Convention of the ILO on indigenous and tribal peoples with the aim of ensuring the effective participation of these peoples on decision-making processes regarding legislative or administrative measures that affect them directly. This commitment is a joint effort of the General Secretariat of the Presidency and the Ministry for Foreign Affairs, with the support of the Ministry of Justice.

Responsible Agencies: General Secretariat of the Presidency, Ministry for Foreign Affairs and Ministry of Justice

Supporting institution: None

Start date: Not specified                          End date: 14 January 2014

Commitment aim

Convention 169 constituted the first binding international instrument that specifically addressed the rights of indigenous and tribal peoples. The commitment focused on evaluating the convention to develop a consultation process to ensure the involvement of indigenous and tribal peoples in decisions that affect them.

Status

Midterm: Limited

An inter-ministerial working group held nine meetings with Quilombola communities to map stakeholder preferences for the development of a consultation process. According to the government, 800 Quilombola community representatives from 24 states participated in these meetings. From the discussions, the government outlined a normative text, which it presented to the National Coordination of Quilombola Communities (CONAQ) for further consultation. However, by the midterm review, there was still no consensus on how to implement the 169 convention requirements as described in the commitment.

End of term: Completed

On 17 December 2015, the government published Decree 8.593/2015, which institutes the National Council for Indigenous Policies (CNPI). The CNPI is composed of 45 members: 15 representatives from the executive branch, all with a right to vote; 28 from villages and indigenous organisations, 13 of whom can vote; and two from indigenous entities who can vote. The Council is designed to develop, monitor, and implement public policies that affect indigenous and tribal peoples. The CNPI was officially established on 27 April 2016. It met for the first time on 28 and 29 April 2016 to discuss the internal regulations of the council, present the results of the first National Conference of Indigenous Policy, and develop a work plan for 2016.

Did it open government?

Civic participation: Did not change

The commitment had the potential to transform civic participation in the country by regulating and implementing consultation tools for indigenous and Quilombolas groups. However, both the development and implementation of the new CNPI were controversial, as there were differing opinions inside and outside of government as to its legitimacy.

Indigenous groups were largely critical of the consultations during the planning phase of the commitment. The Network of Indigenous Peoples in Brazil (APIB) came out against the commitment, while the Center of Indigenous Labour stated that “establishing Working Groups to ‘standardise’ indigenous participation on the fate of their lands is nothing more than a smokescreen to cover up the real intention of undercutting the legitimate means of consultation…”^{[Note 135: Center of Indigenous Labor, “A quem interessa a regulamentação da convenção 169 da OIT?” 16 October 2013, http://bit.ly/2oMtlCH.]} Opinions were divided among government agencies as well. The Ministry of Foreign Relations supported the regulation of prior consultation, but the National Indian Foundation (FUNAI), the government agency in charge of indigenous affairs, preferred utilising the already existing channels for prior consultation.

Indigenous groups heavily criticised the lack of decision-making power of the CNPI, which was designed for consultation. Conectas, for example, decried “the government’s efforts to regulate Convention 169 without recognising the right of indigenous and traditional peoples to have the final word on the benefits or adoption of measures that imply restrictions on the enjoyment of their rights, lands, beliefs, cultural habits, in short, their immaterial and material wealth.”^{[Note 136: Conectas, “Nota pública sobre regulamentação da Consulta Previa,” 4 October 2013, http://bit.ly/2nlKbZ3.]}   

Despite the criticism, the CNPI institutionalised a formal mechanism to consult indigenous and tribal peoples in decisions that affected them. Sonia Guajajara, a representative of indigenous peoples on the CNPI, stated, “There were many challenges in getting to this very important moment, but the process of choosing councillors was legitimate and brings to this space people who receive an important mission: to ensure that we are heard.” She added, “Although the Council is not the ideal one we wanted… we will occupy this space showing that we, the indigenous peoples, will not accept setbacks.”^{[Note 137: FUNAI, “Conselho Nacional de Política Indigenista é instalado durante ato no Ministério da Justiça,” 27 April 2016, http://bit.ly/2p9Ajy5.]}

Although the commitment had potential, by the end of the action plan (June 2016), there was no clear evidence of significant improvement in the participation of those directly affected by the commitment. According to DHESCA Brazil (a network of CSOs that promote economic, social, cultural, and environmental rights), “Though April was positive [with the establishment of the CNPI] — from a formal point of view — for the promotion of indigenous rights, if these measures are not accompanied by continued commitment during the current context, it risks being only rhetorical discourse in light of the historical and repeated violations against indigenous populations.”^{[Note 138: DHESCA Brazil, “Nota sobre a instalação do Conselho Nacional de Política Indigenista,” 2 May 2016, http://bit.ly/2nlQrjy. ]}   

Carried forward?

The commitment was not carried forward to Brazil’s third action plan. Still, the IRM researcher believes the consultation process should be made more inclusive in light of the deep polarisation of stakeholder views.