Province of Neuquén Regulates Procedure for Prior, Free, and Informed Consultation of Indigenous Communities

The Decree No. 0108/2023,  published in the Official Gazette of the Province of Neuquén on January 17, 2023, approved the “Procedure for Prior, Free, and Informed Consultation Applicable to Indigenous Communities”. This decree was Issued upon what was ruled in re: "Comunidad Mapuche Catalán y Confederación Indígena de Neuquén c/ la Provincia de Neuquén", on April 8, 2021. Here, the Argentine Supreme Court decided on the right of indigenous communities to participate and be consulted on governmental measures that could affect their rights under the Argentine Constitution, the ILO Convention No. 169, and the Constitution of the Province of Neuquén.

 

The consultation procedure must be:

1) prior to adopting the measures to be implemented,

2) free of pressures, coercion, or interferences from the parties, who must maintain a peaceful and non-violent dialogue,

3) informed, to ensure access to and comprehension of all available information on the measure.

 

The decree establishes that the consultation procedures must be carried out by the Secretariat of Territorial Development and Environment. The decree will enter into force and be applicable from the date of its publication in the Official Gazette for all administrative measures issued by centralized and decentralized bodies of the provincial public administration that could affect the rights of indigenous communities.  This excludes measures issued by the Legislature, the Judiciary, and the Municipalities. It also states that a Special Provincial Registry of Indigenous Communities must be created within 90 days of entering into force.

 

The decree provides that the consultation procedure applies to measures “of a general or particular scope likely to directly affect indigenous communities” and defines administrative measures as “any unilateral declaration to be issued in the exercise of the administrative function, which directly produces general legal effects”.  Further to this general statement, the decree lists a series of specific measures to which the consultation procedure must be applied, including prospect or exploitation programs of natural resources located on lands of indigenous communities.

 

The consultation procedure must include the authorities of those indigenous communities which are directly affected by the administrative measure and which have a legal status acknowledged by the provincial application authority. It must also include the second level organization concentrating the affected indigenous communities (if there is more than one), or the third level organization concentrating the organizations (if the indigenous communities belong to more than one organization).

 

The consultation procedure must follow the principles of:

1) good faith in dialogue,

2) cultural appropriateness in the traditional manners of indigenous communities,

3) transparency in the access to information regarding the measures.

 

Within this framework, the decree states that the purpose of the consultation procedure will be reaching an agreement with or obtain the consent of indigenous communities regarding the relevant administrative measures, even though an agreement is not required for issuing such measure.

 

The consultation procedure must be carried out within a period of no more than 120 calendar days. The decree states that, during this term, the indigenous communities cannot use direct actions, and that the Secretariat of Territorial Development and Environment may take the necessary measures to ensure the public interests at stake.

 

 

The consultation procedure must include the following stages:

 

 

1. Initiation: The public administration body proposing the measure must send the  Secretariat for Territorial Development and Environment the administrative record of the measure, a report with the reasons for issuing it, and the delimitation of the involved area on a map. In case of doubt, it is the Secretariat that will decide whether the consultation procedure should be applied to a specific measure.

 

2. Call: The Secretariat must announce the call to the indigenous communities within two days of receiving the record. This aims at  preliminarily informing them of the measure; of the initiation of the consultation procedure; and of the place, day, and time of the opening hearing, which must be published on its website. If the indigenous communities consent the measure, the consultation procedure will be deemed complied with.

 

3. Opening Hearing: If the indigenous communities do not consent the measure, the Secretariat of Territorial Development and Environment will carry out the opening hearing within ten days of the announcement, inform the purpose, nature, timing, and scope of the measure, and facilitate all available documents.

 

4. Production of information:  Within five days of the opening hearing, indigenous communities will request the Secretariat of Territorial Development and Environment all the necessary information to analyze the measure under consultation. The Secretariat must promote the production of the information and share the corresponding documents within the following five days.

 

5. Intervention of indigenous communities: Indigenous communities must submit a report before the Secretariat regarding the proposed measure within 30 days of the opening hearing (extendable for another 30 days in some exceptional cases).

 

6. Intervention of the proponent: The Secretariat of Territorial Development and Environment will request the proponent of the measure to decide within the following five days whether to continue with the same measure or to amend it, and to prepare a report to be shared with the indigenous communities. The place, date, and time of the closing hearing must then be set within the following ten days.

 

7. Closing hearing: A minute of the closing hearing must be drafted, stating the parties’ positions. If no agreement is reached, the Secretariat of Territorial Development and Environment will consider the consultation procedure terminated and send the record to the proponent of the measure.

 

The public administration body acting as proponent may adopt the measure it deems appropriate and, as such, an agreement or the consent of the indigenous communities is not a requisite for adopting it. However, the proponent must adequately justify the decision made, evaluating the expressed opinions and considering, to the possible extent , the comments and needs of the indigenous communities.