Prior consultation to halt the resource curse? Potentials and pitfalls of a participatory innovation in Peru and its implications for the Andean countries

• Published in: Andean States and the Resource Curse pp. 104 - 121
• Main Author: Flemmer, Riccarda
• Format: Book Chapter
• Language: English
• Published: Routledge 2022
• Edition: 1
• Subjects: Peruvian Government; Hydrocarbon Project; Indigenous Peoples; Prior Consultation; Extractive Industries Sector; Northern Amazon Region; Vice Versa; State Monologues; Follow; Andean Countries; UN; Consultation Legislation; Recent Resource Boom; Socio-environmental Conflicts; ILO C169; Extractive Projects; Piñera; Madre De Dios; Multiculturalist Turn; Indigenous Organizations; Indigenous Mobilization; Andean States; Ministry Of The Environment; Hydrocarbon Sector; ECLAC
• ISBN: 1032016809; 9781032016788; 1032016787; 9781032016801
• DOI: 10.4324/9781003179559-8

Prior consultation obliges governments to consult indigenous peoples about administrative or legal measures that might affect them—including resource extraction projects—and has been a central institutional innovation during the recent resource boom and post-boom. Legally, the right to prior consultation was first adopted in 1989 by ILO Convention 169. Since then, several Andean countries have implemented consultations, with Peru’s national framework law (2011) being a legal forerunner. Indigenous organizations played a crucial role in pushing for consultation rights. However, more recently, they have turned away from pursuing state-led consultations, while governments and companies changed their initial opposition to approval. This chapter takes a closer look at this reversal and argues that the recent opposition of indigenous peoples to state consultations does not signify a withdrawal from initial demands but rather exposes a widespread disappointment with the implementation processes so far. This insight is presented as a striking parallel between the Andean countries. The chapter shows that the formal institutionalization of prior consultation is not per se a guarantee for indigenous peoples’ rights; instead, its effects are ambiguous. Paradoxically, the informal politics of extractive industries enables communities to be more successful in vetoing extractive endeavors if they refuse consultation rights. Using an analytical lens that combines international relations research on norms with postcolonial approaches, the chapter explores prior consultation in the resource governance of the Andean countries by drawing on first-hand material from an in-depth study about prior consultation in Peru (2012–2018) and an extensive review of secondary literature. Scaling-up in-depth insights into the implementation of prior consultation in Peru-the only country in Latin America with a national framework legislation-this chapter explores and compares reasons for the implementation of prior consultations as well as the potential and pitfalls of consultations to reform resource governance in the Andean countries. Conceptually, this chapter takes an agency-focused perspective on the institutionalization of prior consultation combining critical approaches to law, participation and the transformation of resource conflicts used in the fields of international relations, postcolonial studies and anthropology. It introduces prior consultation as discussed in international law and distinguishes it from other mechanisms of citizen participation. The chapter gives an overview on the reasons for and the progress of introducing prior consultation focusing on the Andean countries. It reflects on the broader implications of prior consultation as an institutional innovation to break the resource curse and to contribute to sustainable development.