ABSTRACT

The duty to consult is pivotal to the relationship between States and Indigenous Peoples. In 2011, Peru adopted a law on prior consultation which it presents as exemplary to the international community. However, the emerging body of practice suggests that deficiencies in the law and its implementing procedures render these consultation processes inconsistent with their object and purpose of safeguarding Indigenous Peoples’ territorial, self-government, and cultural rights. Several States are considering enacting legislation to regulate prior consultation and are looking to the Peruvian experience for guidance. Given its significance, the chapter will critique this legislation and related administrative measures and judicial decisions through the lens of international human rights law standards and strategies adopted by Indigenous Peoples faced with inadequate consultations. In so doing, it seeks to highlight pitfalls to be avoided in the regulation of this fundamental consultation and consent right, and consider possible alternative approaches towards its realisation.