190 Pía Marchegiani and Louisa Parks
In this context, the Roundtable decided to take steps to provide specific
instructions on how to conduct a consultation process. The choice to address
the gap in provincial law around specific provisions was clearly linked to the
rejection of the case they had brought at the national level. Yet, the communities
also wanted to move beyond this more bureaucratic view, and felt that consultations should respect their culture. W orking once more with locally based
lawyers as well as a national NGO, the Foundation for the Environment and
Natural Resources (FARN) based in Buenos Aires, the communities began to
consider a community protocol as a possible way forward that would allow them
to frame a specific consultation process, linking it with their rights and culture
and underpinning their claims with reference to different levels of law, including
international sources.
As for the decision to engage in drafting a community protocol, this was
not taken quickly, nor was it without controversy. Some representatives felt that
outlining a process for engaging with external actors could be construed as an
indication that communities would end up giving their consent – that consent
would become the foregone conclusion of any dialogue in the eyes of authorities
and those wishing to access their lands and resources. Nevertheless, the decision
was made to begin the process. The intention for the protocol was an emerging
strategy in the context of a lack of implementation of consultation rights as discussed. Communities decided to address the consultation conundrum by laying
foundations for dialogue: by providing information about the communities and
their worldview, underlining their knowledge of their rights and outlining a
clear and detailed process – including the point that consent was by no means a
foregone conclusion of consultation – that all external actors should respect and
follow.
These decisions about the content of the protocol were developed in
participatory ways. Before drafting the protocol, a series of workshops were
carried out in each of the communities with legal experts who first explained
the legal provisions on consultations to every community member interested,
then collected their initial ideas about what a proper consultation process that
respected their views would look like. After these initial workshops, a small
group of around 15 community members was selected to drive the drafting
process for the protocol on a consensus decision-making basis involving all of
the communities. The group divided into teams formed to work on specific
parts of the text, but the group as a whole answered to the Roundtable, and the
process was also discussed with broader sections of the community on regular
occasions. The process of drafting the protocol took nearly two years, from
early 2014 to its publication in late 2015, and also included meetings between
the small drafting group, local lawyers, FARN and other external organizations, general meetings and gatherings in the Roundtable space, training sessions on community protocols (led by the South African-based NGO Natural
Justice), thematic workshops, workshops on the text of the draft protocol and
the final consensus-based approval process.
In this context, the Roundtable decided to take steps to provide specific
instructions on how to conduct a consultation process. The choice to address
the gap in provincial law around specific provisions was clearly linked to the
rejection of the case they had brought at the national level. Yet, the communities
also wanted to move beyond this more bureaucratic view, and felt that consultations should respect their culture. W orking once more with locally based
lawyers as well as a national NGO, the Foundation for the Environment and
Natural Resources (FARN) based in Buenos Aires, the communities began to
consider a community protocol as a possible way forward that would allow them
to frame a specific consultation process, linking it with their rights and culture
and underpinning their claims with reference to different levels of law, including
international sources.
As for the decision to engage in drafting a community protocol, this was
not taken quickly, nor was it without controversy. Some representatives felt that
outlining a process for engaging with external actors could be construed as an
indication that communities would end up giving their consent – that consent
would become the foregone conclusion of any dialogue in the eyes of authorities
and those wishing to access their lands and resources. Nevertheless, the decision
was made to begin the process. The intention for the protocol was an emerging
strategy in the context of a lack of implementation of consultation rights as discussed. Communities decided to address the consultation conundrum by laying
foundations for dialogue: by providing information about the communities and
their worldview, underlining their knowledge of their rights and outlining a
clear and detailed process – including the point that consent was by no means a
foregone conclusion of consultation – that all external actors should respect and
follow.
These decisions about the content of the protocol were developed in
participatory ways. Before drafting the protocol, a series of workshops were
carried out in each of the communities with legal experts who first explained
the legal provisions on consultations to every community member interested,
then collected their initial ideas about what a proper consultation process that
respected their views would look like. After these initial workshops, a small
group of around 15 community members was selected to drive the drafting
process for the protocol on a consensus decision-making basis involving all of
the communities. The group divided into teams formed to work on specific
parts of the text, but the group as a whole answered to the Roundtable, and the
process was also discussed with broader sections of the community on regular
occasions. The process of drafting the protocol took nearly two years, from
early 2014 to its publication in late 2015, and also included meetings between
the small drafting group, local lawyers, FARN and other external organizations, general meetings and gatherings in the Roundtable space, training sessions on community protocols (led by the South African-based NGO Natural
Justice), thematic workshops, workshops on the text of the draft protocol and
the final consensus-based approval process.