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consultation” in its articles 30.15 20 and 352. 21 Even with the existence of the aforementioned legal
provisions from the highest ranking legal authority, the indigenous people of Bolivia continue to
demand, almost daily, the adequate application of this right, and that the State obtain the consent
of the people before performing any type of natural resource exploration in their territories.
However, it should be mentioned that the government of President Evo Morales has been
trying since 2005 to implement the right of consultation through its regulations. That year the law
of hydrocarbons (Law Nº 3058) was implemented which includes an exclusive Title referring to
the right to consultation and participation of indigenous, agrarian and original people. 22 In 2007,
the government issued the rules for consultation and participation of indigenous and original
people and agrarian communities in hydrocarbon activities through Supreme Decree Nº 29033.
According to the Bolivian legislation, the product of the prior consultation processes
with indigenous people should be incorporated both into decisions regarding the viability of
an enterprise as well as into its environmental assessment. Thus, administrative decisions that
ignore the “Acts of Understanding” signed by the government and the indigenous people can be
legally annulled.
The Bolivian legislation regarding prior consultation is, without a doubt, the most
complete and consistent regulation in the region. However, there have been repeated complaints
and demands of the indigenous movements relating to the lack of their application and
enforcement by the indigenous government itself, which is important to take into consideration
in an institutional evaluation regarding the right to consultation in Bolivia.
20 NPCBS. Art. 30, II, 15, II. In the framework of the unity of the State and in accordance with this Constitution the
indigenous, original and agrarian nations and people enjoy the following rights: (…) 15. To be consulted through
appropriate procedures, and in particular through their institutions, every time that legislative or administrative
measures are planned that are likely to affect them. In this context, they will respect and guarantee the right to
mandatory previous consultation by the State in good faith and in collaboration, regarding the exploitation of the
non-renewable natural resources in the territory where they live.
21 NPCBS. Article 352. The exploitation of natural resources in a certain territory will be subject to a process
of consultation with the affected population, convened by the State; the consultation will be free, prior and
informed. The public participation in the process of environmental management is guaranteed and will promote
the conservation of ecosystems in agreement with the Constitution and the law. In the case of indigenous,
original and agrarian nations and people, the consultation will take place respecting their own norms and procedures.
(Emphasis by author).
22 For the Bolivian legislation regarding consultation, see: http://www.socioambiental.org/inst/esp/consulta_
previa/?q=o-que-e/experiencia-america-do-sul/bolivia and at: http://www.socioambiental.org/inst/esp/consulta_
previa/?q=node/29. For a critical analysis of the current legislation and the criticism of the lack of implementation,
see: http://www.cejis.org/.
32 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t