The process for developing new legislation on Indigenous Peoples’ right to prior consultation has set off alarms, but the Honduran government still has time to ensure a participatory and inclusive process that aligns with international standards.
Following last November’s contested presidential election and allegations of corruption around recent legislative reforms that have been widely denounced as an “impunity pact,” Honduras remains embroiled in political turmoil. While there is no quick fix to this tense and polarized situation, establishing a national dialogue and demonstrating a commitment to listening to the voices of its most marginalized citizens would be an important first step.
New legislation on prior consultation with Indigenous Peoples stands to either alleviate or exacerbate existing political tensions. Indigenous prior consultation laws aim to ensure Indigenous Peoples’ participation in government decisions that affect them. However, to demonstrate good faith, a government must ensure that 1) the process of developing this legislation takes into account input and views through a mutually agreed dialogue process, and 2) the proposed legislation aligns with international jurisprudence and standards.
The latest draft legislation does not provide adequate protection for indigenous rights, such as Indigenous Peoples’ right to give or withhold their Free, Prior and Informed Consent (FPIC) for investment projects that will affect their lands or resources. Indigenous Peoples are among the most marginalized and vulnerable communities in Latin America, and risks to their lives and livelihoods may be exacerbated without strong rights protections in law. Honduras has experienced an explosion of mining concessions in recent years which present new environmental, social, and human rights risks. Honduras is among the most dangerous countries in the world for environmental defenders. The recent anniversary of the assassination of Lenca activist Berta Cáceres–who campaigned for many years against a hydroelectric project approved in Lenca territory without FPIC–provides a harsh reminder of this truth.
Unfortunately, Indigenous Peoples in Honduras have very limited representation in Congress and to date they have not been sufficiently engaged in shaping this and other relevant legislation. In fact, the Congress often blocks or shelves bills brought to the floor on behalf of Indigenous Peoples. The current draft bills ignore several key recommendations from Honduran indigenous federations, three of whom made formal submissions to government. In addition, the government-led meetings have not allowed for sufficient discussion on the legislation. Last year’s report on Honduras by UN Special Rapporteur on Indigenous Rights Victoria Tauli-Corpuz outlines the variety of deficiencies in community participation and representation in the consultation process surrounding the latest bills.
In order to avoid passing a consultation law that has not been adequately consulted nor aligned with international standards, the government must:
Establish a binding, multi-phase, indigenous-led dialogue process to develop the content of the law. Meetings that last just one or two days do not provide sufficient time to conduct a thorough consultation on the law. For this reason, many Indigenous Peoples do not recognize the meetings held by the government thus far as consultations.
Take into account international jurisprudence and standards with regard to the content of the law. For example, the definition of “directly-affected” communities in the current draft text of the bill applies only to situations where Indigenous Peoples have been resettled–far too narrow an understanding of the term. Also, as noted above, references to FPIC in the draft bill fall short of international standards. The bill states that FPIC only applies when a project entails resettlement, but according to international law it also applies when Indigenous Peoples will be impacted by “large-scale” projects (such as oil, gas, or mining projects).
Acknowledge prior consultations as ongoing dialogue processes, rather than viewing them as a tick-box exercise to initiate projects or policies. Government should make consultations ongoing and robust processes. Yet Article 4c of the draft bill states that any administrative or legislative measures deriving from the measure consulted will not need to be consulted.
Unless the government embraces these changes to process and the content of the bill, it will be impossible for the legislation to achieve the intended effect of creating space for meaningful participation of Indigenous Peoples in decision making. With the legitimacy of the election of President Juan Orlando Hernandez seriously questioned by Hondurans, a faulty consultation law will only add fuel to the fire.
This article was originally posted at Oxfam