Cuestionando el consentimiento en las Cortes: una crítica socio-legal a los acuerdos indígenas-industria

Abstract

In this article we argue that the legal and social contexts that typically inform the formation of Indigenous-industry agreements in Latin America are marked by enormous power disparities and stark epistemological differences. The literature reviewed here supports the conclusion that it is likely that many of these “agreements” lack legitimacy, and even legality. This in turn raises serious questions about whether or not agreements formed under current conditions could possibly rest on any meaningful notion of consent. We make this important point in order to focus on a narrower set of questions, of the present but also very much one of the future, as we face the aftermath in the years and decades to come, of the proliferation of agreements under present circumstances. What happens when a community mobilizes in order to challenge the legality of an agreement signed with a company in the extractive sector, contesting the idea that it actually consented? What happens if the company and / or the State present a document with signatures of former community leaders that allegedly represent consent? Finally, if the company and the state are unresponsive to a community’s concerns about the deal, can the community resort to the courts? In this article we examine some of these issues by referring to Peru as a case study, and in conclusion we analyze their significance for ongoing normative developments in relation to Indigenous peoples’ right to free, prior and informed consultation and consent.