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15
 Article 6.1.
In applying the provisionsof this Convention,governments shall:
(a) consult
the peoplesconcerned, throughappropriate proceduresand in particular throughtheir representativeinstitutions, wheneverconsideration is beinggiven to legislative oradministrative measureswhich may affect themdirectly;
Consultation is a fundamental principle of theConvention.
One of the major problems facing indigenous and tribal peoplesis that often, they may have little or no say in how, when or whymeasures which have or will have a direct effect on their livesare decided or put into practice.While examining the application of Convention No. 169, the ILO’sCommittee of Experts on the Application of Conventions andRecommendations commented on the construction of the Urráhydroelectric project in Colombia, which was set to flood much of the territory occupied by the Emberá- Katío community. This pro-ject had been initiated without prior consultation with the indige-nous community concerned, and therefore contravened Article 6of Convention No. 169.
The Convention brings into focus the
right
of indigenousand tribal peoples
to be consulted
.
This is whenever any measure which may have a direct effect onindigenous and tribal peoples is being explored, planned orimplemented.Such measures include, for example:
s
Amendments to the national constitution;
s
New agrarian laws;
s
Land rights decrees or procedures for obtainingland titles;
s
National education or health programmes and services;
s
Any public policies affecting indigenous and tribal peoples.Thus, before adopting any laws or administrative provisionswhich might affect them directly, governments must have open,frank and meaningful discussions with the peoples concerned.
CONSULTATION
Consultation
Vietnam : women at a Participatory Rural Appraisal Workshop
Photo : Committee for Ethnic Minorities in Mountainous Areas (CEMMA)
 
16
CONSULTATION
 Article 6.2.
The consultations carriedout in application of thisConvention shall beundertaken, in good faithand in a form appropriateto the circumstances, withthe objective of achievingagreement or consent tothe proposed measures.
The Convention provides the framework for discussions andnegotiations between governments and indigenous and tribalpeoples. The
objective
of such consultation is to reach
agree-ment
(consensus) or full and informed consent.
 What about the right to veto?
The Convention does not give indigenous and tribal peoples theright to veto.
The Convention specifies that no measures should be takenagainst the wishes of indigenous and tribal peoples, but this doesnot mean that if they do not agree nothing will be done.
In 1977, five Cree communities in Manitoba, Canada, were faced withecological damages and loss of land caused by the construction of ahydroelectric megaproject. They could not stop the project, but nego- tiated a compensation package with the federal government, known as the Northern Flood Agreement. It includes the provision of lands as res- titution for flooding, wildlife management under Cree responsibility, aswell as control and guarantee of the availability of potable water.
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What is important to remember is that consultation must be entered into:
a)
In a spirit of
good faith
, with respect for each others’ interests, valuesand needs. The process of consultation must be specific to the circum-stances and the special characteristics of the given group or communi- ty. Thus, a meeting with village elders conducted in a language they arenot familiar with, e.g. the national language, English, Spanish etc, andwith no interpretation, would not be a true consultation.
b)
With respect for the principle of
representativity
which is a “vitalcomponent of consultation. […] it could be difficult in many circum-stances to determine who represents any given community.However, if an appropriate consultation is not developed with theindigenous and tribal institutions or organizations that are trulyrepresentative of the communities affected, the resulting consulta- tions will not comply with the requirements of the Convention“.
9
8
Barsh, R. L. & Bastien, K.
Effective Negotiation by Indigenous Peoples. An Action Guide with Special Reference to North America
. ILO, Geneva. 1997, p.110.
9
Representation alleging non-observance by Ecuador of the Indigenous and Tribal PeoplesConvention, 1989 (No. 169), made under article 24 of the ILO Constitution by the onfederaciónEcuatoriana de Organizaciones Sindicales Libres (CEOSL). www.ilo.org/ilolex.
DIRECT EFFECT ONINDIGENOUS AND TRIBALPEOPLES
➔
 
 AGREEMENTOBJECTIVE
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