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Prior consultation

According to the ILO convention 169, the 21/1991 Colombian Law, and the Colombian Constitutional Block, States are obliged to consult the interested people, through their representative institutions, every time they want to take some legislative or administrative measures which could affect them directly.

Following the article 6 from the ILO convention 169, about indigenous and tribal people in independent countries, governments should:

  • Consult the interested peoples, through appropriate procedures and in particular through their representative institutions, whenever legislative or administrative measures that could directly affect them are foreseen.

  • Establish the means through which interested people can freely participate, at least to the same way as other sectors of the population and at all levels of decision-making in elective institutions, administrative and other bodies, responsible of policies and programs that concern them.

  • Establish the means for the full development of the institutions and initiatives of these peoples, and in appropriate cases provide the necessary resources for this purpose.

  • The consultations carried out must be do it in good faith and in a manner appropriate to the circumstances, in order to reach an agreement or obtain consent on the proposed measures.

  • In the Colombian case, the Honorable Constitutional Court has defined parameters for pre-consultation, consultation and post-consultation for ethnic groups, based on the definition of autonomy contained in judgment T-601 of 2011 “Principles of interpretation that allow a solution to tensions that arise in cases related to ethnic integrity, cultural diversity. Reiteration of jurisprudence.

  •  Principle of “maximizing the autonomy of indigenous communities or minimizing restrictions on their autonomy” [67]: only restrictions on the autonomy of indigenous communities are admissible, when these (i) are necessary to safeguard a higher interest; and (ii) they are the least burdensome, against any alternative measure for the autonomy of ethnic communities. The evaluation of the hierarchy of interests at stake and the inexistence of less burdensome measures must be carried out taking into account the particularities of each community [68].

  •  Principle of “greater autonomy for the decision of internal conflicts”: respect for autonomy must be greater when the problem studied by the constitutional judge involves only members of a community that when the conflict involves two different cultures, because in the latter case, essential principles of each of the cultures in tension must be harmonized [69].

  •  Principle “to greater conservation of cultural identity, greater autonomy”: was formulated in the sentenceT-254 of 1994.

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