2013- Proposed National Consultation Law

In May 2018, the Honduran government presented a final version of its proposed national consultation law to the National Congress. This proposed law is intended to “codify Honduras’ international legal obligations to respect indigenous peoples’ rights to free, prior, and informed consent (“FPIC”)”, including the rights guaranteed under the  International Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) (ILO Convention No. 169). The U.N. Special Rapporteur (Relator Especial) on Rights of Indigenous People reviewed the history of the proposed national consultation law in a report, dated 22 December 2016. The Special Rapporteur noted that the Confederation of Indigenous Peoples of Honduras (CONPAH) participated for several years in meetings to discuss the draft law, preparing its own draft versions for consideration in, for example, March 2013 and February 2015. In May 2015, the Honduran government established an Inter-Institutional Roundtable on ILO Convention No. 169, coordinated by the Directorate of Indigenous and Afro-Honduran Peoples (DINAFROH). In 2016, the Roundtable prepared a final version of the draft consultation law, based on the previous drafts submitted by CONPAH and DINAFROH, and in consultation with other state institutions. The U.N. Development Programme supported the work of the Roundtable and, at the request of the government, facilitated meetings with indigenous representatives on the draft law developed by the Roundtable (Special Rapporteur Report, 2016).

At the same time, organizations connected to the Observatory of Indigenous Peoples’ Rights, including the Black Fraternal Organization of Honduras (OFRANEH) and the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH), publically criticized the government’s drafting and socialization process for the consultation law, with the Observatory presenting its own draft, entitled Framework Law on Consultation and Free, Prior and Informed Consent, in May 2016 (Ibid). The Special Rapporteur noted that, while the Honduran government held 18 workshops between May and October 2016 with representatives of indigenous and Afro-Honduran communities on the draft consultation law, these participants did not have a leading role in the process. For example, indigenous representatives were required to comment on a government-prepared draft, which they received four weeks before the workshops. Moreover, indigenous participation in the workshops was limited to certain groups, resulting in the exclusion of others, particularly those connected to the Observatory. The Special Rapporteur ultimately concluded, among other things, that the process of developing a law on prior consultation of indigenous peoples must procedurally and substantively comply with international human rights standards, including developing a process of adequate consultation on the law with the greatest number of indigenous organizations and peoples possible, ensuring consensus among the indigenous organizations and peoples regarding the methodology and procedures for consulting on the draft law, and ensuring that the final text is a product of consensus with the goal of avoiding limited discussions on drafts prepared by the government or other external actors (Ibid).

In June 2018, the Garífuna Peoples of Honduras convened an assembly on the draft consultation law submitted to the National Congress in May 2018. The assembly decided to reject the draft proposed by the Honduras government on the basis that, among other things, it violates their right of self-determination (Criterio.hn, 2018). The draft law is also rejected by OFRANEH, which has described the draft as an information to create an instrument to legitimize the displacement of their communities from their territories for the implementation of “projects of death” (OFRANEH, 2018). Criticisms of the draft law include a rejection of provisions that purport to take away the right of indigenous and Afro-Honduran peoples to withhold consent and the pace of the consultation process, which is required to be completed within four to six months (OXFAM, 2018).

In the face of concerted opposition, the draft consultation law was not approved and remains under discussion (SEDH, 2020).

While this law does not directly affect the San Martín mining project (which closed in 2010), issues relating to the violation of indigenous and community rights to consultation in the approval, operation, and closure of the mine were significant and form part of the context in which the current draft law is debated.