The deliberative deficit of prior consultation mechanisms

Abstract

This article discusses the right to prior consultation guaranteed to indigenous people by international documents such as Convention 169 of the International Labour Organisation and the United Nations Declaration on the rights of Indigenous people. Using New Zealand and Colombia as case studies, the article argues that this right currently offers very little tangible benefits to indigenous people and is usually reduced to a legal bureaucratic requirement that defeats the purpose and intent of the right to consultation. I use deliberative democratic theory to show that the consultation mechanisms currently taking place in the two case studies suffer from a deliberative deficit and argue that prior consultation initiatives would better help respecting the rights of indigenous people if they were consistent with the political ideals that inform deliberative democratic theory.

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