201. This Court has established in other cases that consultations with indigenous peoples must be
undertaken using culturally appropriate procedures; in other words, in keeping with their own
traditions.263 For its part, ILO Convention No. 169 provides that “governments shall […] consult the
peoples concerned, through appropriate procedures and in particular through their representative
institutions,”264 and take “measures […] to ensure that members of these peoples can understand
and be understood in legal proceedings, where necessary through the provision of interpretation or
by other effective means,” taking into account their linguistic diversity, particularly in those areas
where the official language is not spoken by a majority of the indigenous population.265
202. Similarly, the ILO Committee of Experts on the Application of Conventions and
Recommendations has indicated that the expression “appropriate procedures” should be understood
with reference to the purpose of the consultation, and that therefore there is no single model for an
appropriate procedure, which should “take into account the national circumstances and those of the
indigenous peoples, as well as [, contextually,] the nature of the measures under consultation.266
Thus, such procedures must include, in keeping with systematic and pre-established criteria, the
different forms of indigenous organization, provided these respond to the internal processes of these
peoples.267 Appropriateness also implies that the consultation has a temporal dimension, which
again depends on the specific circumstances of the proposed action, taking into account respect for
indigenous forms of decision-making.268 In this regard, the case law269 and domestic legislation of
various States refer to the need to carry out appropriate consultations.270
263
Cf. mutatis mutandi, Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and
costs, para. 130
264
ILO Convention No. 169, article 6(1)(a). Similarly, article 30(2) of the United Nations Declaration of the Rights of
Indigenous Peoples stipulates that “States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions, prior to using their lands or
territories for military activities.”
265
Cf. ILO Convention No. 169, article 12. For its part, the United Nations Declaration of the Rights of Indigenous
Peoples estblishes in Article 36(2) that “States, in consultation and cooperation with indigenous peoples, shall take effective
measures to facilitate the exercise and ensure the implementation of this right.”
266
ILO, Report of the Committee set up examine the representation alleging non-observance by Brazil of the Indigenous
and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Federal District
Engineers Union (SENGE/DF), GB.295/17; GB.304/14/7 (2006), para. 42. The Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous peoples has added that “international standards do not impose preestablished criteria for creating bodies and mechanisms to implement the requirement of consultation, which must respond to
the particular characteristics and constitutional systems of each country. However, it can be understood that the gradual
establishment of such bodies and mechanisms is one of the duties derived from the ratification of Convention No. 169 and
other international norms, taking into account the minimum requirements of good faith, adaptation and representation
mentioned previously. Where such mechanisms do not formally exist, transitory or ad hoc mechanisms must be adopted with
a view to the effective exercise of indigenous consultations” (para. 37). Furthermore, the Special Rapporteur on the situation
of human rights and fundamental freedoms of indigenous peoples stated that the “appropriate nature of the consultation with
indigenous communities through their representative institutions does not respond to a univocal formula but depends to a
great extent on the scope or sphere of the specific measure which is the object and ultimate goal of the consultation.” Report
of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, James Anaya,
October 5, 2009, A/HRC/12/34/Add.6, Appendix A, para. 28
267
Report of the Committee set up examine the representation alleging non-observance by Mexico of the Indigenous
and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Authentic Workers Front
(FAT) GB.283/17/1 (2001), para. 109. Similarly, the Report of UN Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous peoples, states that “[i]n light of these essential criteria of representativeness, it can be
stated that they: (i) are contextually dependent on the scope of the measures to be consulted; (ii) must abide by systematic
and pre-established criteria; (iii) must include different forms of indigenous organization, provided that these are consistent
with the internal processes of these peoples; and (iv) based on principles of proportionality and non-discrimination, must
respond to a range of identity, geographic and gender perspectives.” Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous peoples, James Anaya, October 5, 2009, A/HRC/12/34/Add.6,
Appendix A, para. 31
268
Report of the Committee set up examine the representation alleging non-observance by Colombia of the Indigenous
and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Unitary Workers Union
(CUT), GB.276/17/1; GB.282/14/3 (1999), para 79. Similarly, see the Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous peoples, James Anaya, October 5, 2009, A/HRC/12/34/Add.6,
Appendix A, para. 33. In addition, “the time required by the country’s indigenous communities to carry out their decision
making processes and to participate effectively in the decisions taken in a manner adapted to their cultural and social models
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