The Prior Consultation of Indigenous Peoples in Latin America: Inside the Implementation Gap ed. by Claire Wright & Alexandra Tomaselli (review)

Indigenous peoples' struggle for lands, territories and natural resources represents one of the most vehemently demanded collective rights in the post-colonial age. The 2019 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) session proved emblematic in that sense. Most notably, indigenous peoples voiced concern about persisting neoliberal pressures that are translated into serious and systematic violations of indigenous rights. This primarily concerns forced displacement, territorial dispossession policies and settlement, de-regionalization policies and broader geopolitical arrangements, deportation practices, externally defined borders, land-related criminalization and persecution. Forms of violence similarly become apparent, including traumatization, murder, and genocidal practices related to the use of security in deforestation and land grabbing cases. Tools of resistance and legal mobilization are sought accordingly, with the objective of allowing for indigenous peoples' share and say in such decisions. One such demand includes the procedural conditions and particularities of participation, in other words, prior consultation and free, prior and informed consent (FPIC). Procedural issues may, however, fall short of tackling wider consequences for participatory paradigms. Accordingly, indigenous representatives have been addressing overarching implications on indigenous governance systems, and autonomy, the United Nations intergovernmental spaces of negotiation, the modalities of representation regimes, forms of recognition, and ultimately self-determination.

The Prior Consultation of Indigenous Peoples in Latin America hence provides a particularly timely response to: 1) persisting challenges for codifying and upholding indigenous peoples' land and resource rights and 2) the particular difficulties associated with implementing the highly contentious right to consultation and consent in Latin America. In that sense, the book explores the empirical nuances of prior consultation practice, mingled with the institutional toolboxes and constitutional architectures that may accommodate such fundamental right. It does so in a five-step manner while tracing on-the-ground developments throughout the entire piece. First of all, the piece disentangles the complexities around definitional issues which become manifest in the very drafting process of the law. The debates embark on a multi-layered journey across domestic constitutional, international legal, and soft law standards, providing a rich account of indigenous perspectives and their translation into legal standards. In part two, prior consultation is regarded as a point of departure, shedding light on processes of contestation, disputes, and multiplicities of conflicts that may arise in the field (of application). Third, prior consultation is viewed from within by way of making sense of its institutional framework and the very construction of consultation as embedded in the law. The fourth part distinguishes itself by its considerable empirical value, identifying gaps and failures in observing basic human rights obligations in current litigation. This section is further organized by an analysis of how current cases need to be contextualized in sociopolitical terms. Finally, lessons are drawn from the above, permitting insights into a predominantly State oriented approach to prior consultation, one that is detrimental to indigenous demands for autonomy and self-determination.

This multifaceted journey guides us through the Latin American legal landscape and human rights practice. In fact, prior consultation and FPIC have found articulation and strong embedment in the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACHR) recently developed jurisprudence and in the constitutional practices of its Member States. Beginning with the Saramaka and Sarayaku decisions, prior consultation has gained in procedural detail, in legal enforcement power through binding consent, in legal value as a general principle of international law, and in multiplicities of legal dimensions as an umbrella right. The Inter-American Human Rights system has thereby been assuming a panoply of regulating functions while spreading the binding force of consultation and consent across international, regional, and domestic legal spheres. Constitutional developments in Latin America have been accompanying such transformations, positioning themselves an essential shift towards indigenous rights commitments and the re-construction of the State. Prior consultation and consent are emblematic of such institutionalization and constitutional codification...