Consenting to Dispossession: The Problematic Heritage and Complex Future of Consultation and Consent of Indigenous Peoples

Consultation and consent of indigenous and tribal peoples are matters of human rights law that have given rise recently to a convoluted array of recommendations, regulations, legislation, and judgments of national and international institutions. Regardless of different understandings, the concepts of consultation and consent are usually understood as progressive and indicative of the crossing of an imaginary threshold between epochs. This Article is animated by the idea that, apart from the legal, social, and procedural complexities of design and implementation, the notions of consultation and consent are inherently problematic, thus compromising their progressive potential. This intuition is arguably present in most discussions on consent and consultation, but often remains implicit so as not to jeopardize proceedings or undermine the progressive character of the notions themselves. Since colonial times, these concepts have been employed in different ways. This Article argues that current vocabularies of consultation and consent may reinforce and “buy into” a problematic heritage that needs to be unearthed, made explicit, and amplified. If ignored, this heritage may come back to haunt the rules and procedures so meticulously developed. Consultation and consent are not prohibitive or preventive notions that necessarily deter harmful activities of states and companies. Rather, they are enabling and permissive notions that make such activities possible and give them apparent validity. In other words, consultation and consent present the perfect justification for the dispossession of indigenous peoples, rather than allowing for their recognition and empowerment. This Article does not offer a solution or redefinition that salvages these notions as unequivocally positive and progressive. This is impossible since consultation and consent already implicate both a legitimation of-and a resistance to-inequality. There are, of course, positive aspects to consultation and consent. For example, they play an important role in advocacy for indigenous peoples’ rights. However, anyone using the terms consultation and consent, whether to advance such rights or other interests, should be conscious of the historical, conceptual, and practical difficulties-difficulties that may be “imported” into any domain of application by their mere use.