The deliberative deficit of prior consultation mechanisms

This article discusses the right to prior consultation guaranteed to indigenous people by international documents such as Convention 169 of the International Labour Organisation and the United Nations Declaration on the rights of Indigenous people. Using New Zealand and Colombia as case studies, the article argues that this right currently offers very little tangible benefits to indigenous people and is usually reduced to a legal bureaucratic requirement that defeats the purpose and intent of the right to consultation. I use deliberative democratic theory to show that the consultation mechanisms currently taking place in the two case studies suffer from a deliberative deficit and argue that prior consultation initiatives would better help respecting the rights of indigenous people if they were consistent with the political ideals that inform deliberative democratic theory.

本文讨论了国际文件如国际劳工组织169号协议以及联合国关于原住民权利宣言赋予原住民的优先咨询权。作者对新西兰和哥伦比亚做了个案研究，指出此项权利目前给不了原住民多少实际好处，往往沦为官僚主义的法律过场，违背了咨询权的初衷。本文根据商议民主的理论，指出在这两个个案中，咨询机制缺乏商议。作者认为，优先咨询的动议如果符合商议民主的政治理想，会有助于尊重原住民的权利。