Pre-Legislative Indigenous Consultation

By: Erick Guapizaca Jiménez

PDF: Pre-Legislative Indigenous Consultation

This Article seeks to distinguish pre-legislative and pre-regulatory consultation (together referred to as pre-legislative consultation) from project-based consultation. Pre-legislative consultation covers draft legislation, executive orders, and regulations that create general norms and is triggered when a measure directly affects Indigenous Peoples. This Article makes two claims. First, pre-legislative consultation validly limits state sovereignty by restricting the central state’s power to enact laws that affect Indigenous Peoples and by requiring accommodation of their interests. Second, from the perspective of representative democracy, it requires engaging with Indigenous Peoples as rights holders of self-determination and creating conditions that counter their disadvantaged position in the legislative process, giving them a genuine opportunity to shape the content of the law before it takes effect.