179. It should be clarified that it is the obligation of the State – and not of the indigenous peoples – to prove that all aspects of the right to prior consultation were effectively guaranteed in this specific case. a) Consultation must be carried out in advance 180. Regarding the moment at which the consultation should be carried out, article 15(2) of ILO Convention No. 169 indicates that “governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any program for the exploration or exploitation of such resources on their lands.” On this point, this Court has observed that consultation should take place, in accordance with the inherent traditions of the indigenous people, during the first stages of the development or investment plan and not only when it is necessary to obtain the community’s approval, if appropriate, because prior notice allows sufficient time for an internal discussion within the community to provide an appropriate answer to the State.237 181. In this regard, when examining a complaint that alleged non-observance of ILO Convention No. 169 by Colombia, the ILO Committee of Experts established that the requirement of prior consultation means that this must take place before taking the measure or implementing the project that may affect the communities, including legislative measures, and that the affected communities must be involved in the process as soon as possible.238 In the case of consultation prior to the adoption of a legislative measure, the indigenous peoples must be consulted in advance during all stages of the process of the producing the legislation, and these consultations must not be restricted to proposals.239 182. The domestic legislation240 and case law of several countries of the region have also referred to prior consultation.241 237 Cf. Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and costs para.134. Similarly, article 32.2 of the United Nations Declaration on the Rights of Indigenous Peoples stipulates that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, use or exploitation of mineral, water or other resources”. United Nations Declaration on the Rights of Indigenous Peoples, article 32(2). See also expert opinion of Rodolfo Stavenhagen of June 24, 2011 (File of affidavits of the Representatives of the Presumed victims, tome 19, folio 10130). 238 Cf. 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 Central Unitary Workers’ Union (CUT), GB.276/17/1; GB.282/14/3 (1999), para. 90. Similarly, ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR), Individual Observation concerning Convention No. 169, Argentina, 2005, para. 8. Also, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, James Anaya, of October 5, 2009, A/HRC/12/34/Add.6, Appendix A, paras. 18 and 19. 239 Cf. 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. 20. 240 Cf. Prior Consultation Act of September 6, 2011, of Peru, article 4: “The consultation process shall take place prior to the adoption of the legislative or administrative measure to be adopted by the State institutions”; Law 3058, of May 17, 2005, Hydrocarbons Act of Bolivia, article 115: “the consultation shall take place at two moments: [p]rior to the bidding process, award, contracting and approval of the hydrocarbon measures, works or projects, this being a necessary condition; and, prior to the approval of the environmental impact assessments.” Ecuador: 2008 Constitution, article 57.17, Substitute Environmental Regulations for Hydrocarbon Operations, Executive Decree 1215, Official Record 265 of February 13, 2001, article 9: “Prior to the start of any bidding process for state oil contracts, the agency in charge of conducting the oil bidding process shall apply, in coordination with the Ministry of Energy and Mines and the Ministry of the Environment, the consultation procedures established in the Regulations issued for that purpose. Prior to the execution of hydrocarbon exploration and exploitation plans and programs, the monitoring mechanisms shall inform the communities included in the direct area of influence of the projects and hear their suggestions and opinions […],” and Mining Act, Official Record 517 of January 29, 2009, article 89; United States of America: Executive Order 13175 (2000), Section 5(b)(2)(A), 36 C.F.R. §800.2(c)(2)(ii)(A), and EPA Policy on Consultation and Coordination with Indian Tribes (Policy); Mexico: Law on the National Commission for the Development of the Indigenous Peoples of May 21, 2003, and Venezuela: Organic Law on Indigenous Peoples and Communities of December 8, 2005, articles 11 to 15. See also, Colombia: Presidential Order No. 01 of 2010, (2) Actions required by the guarantee of the right to prior consultation. 51