Free and informed prior consultation of indigenous peoples

from its provision in ILO Convention 169 to its application by the Inter-American Court of Human Rights and Brazilian higher courts

Abstract

Introduction: Due to ILO Convention 169 of 1989 abandoning the assimilationist bias towards indigenous peoples and pioneering the respect for diversity, this text seeks to verify the relevance of the Convention, principally how it has been applied by the Inter-American System for the Protection of Human Rights, in particular by the Inter-American Court, and how this application has repercussions in Brazil, especially within the Judiciary due to the Control of Conventionality.

Objective: The article aims to highlight the provisions and importance of ILO Convention 169; verify its use by both the Inter-American Court of Human Rights and the Brazilian supreme courts (STF and STJ); and explain what Convention Compliance is, also exposing its mandatory nature as determined by the CNJ.

Methodology: A qualitative study is conducted, using the hypothetical-deductive approach, based on the hypothesis that ILO Convention 169 is a turning point in terms of securing the rights of indigenous peoples. The aim is not only to understand it in general terms, but also to note its specific application by the Inter-American System and the higher courts in Brazil. As for the analysis of the objectives, this will be carried out using descriptive methods with regard to the norms studied, aiming to elucidate what they prescribe, and exploratory methods with regard to the application of these norms by the Inter-American and higher courts, focusing on deepening the understanding of the use of Conventionality Control. Finally, with regard to procedures, bibliographic, documentary, and jurisprudential research techniques will be used.

Results: Through this study, it was possible to note that, although ILO Convention 169 prescribes the right to a free, prior, and informed consultation and its use has been ratified by the Inter-American Court, even though this is not a right prescribed in inter-American documents, the precedents of this Court dealing with such consultation are not widely used in Brazil by the higher courts (STF and STJ), indicating a problem with regard to the perfection of full Convention Control in the country, even though the CNJ has determined its application in 2022. Conclusion: The text was intended to state that the conventionality control relating to the application of ILO Convention 169, demanded by both the Inter-American Court of Human Rights and the National Council of Justice, is carried out in Brazil when analyzing the jurisprudence of the higher courts. However, what has been found is that, although the Convention is used in the reasonings, the jurisprudence of the Inter-American Court of Human Rights is not, requiring measures to be adopted, especially in the Judiciary, to disseminate this specific knowledge.

KEYWORDS: CNJ Recommendation 123; conventionality control; free, prior, and informed consultation; higher courts; ILO Convention 169.