Treaty-making and self-determination as factual reality

The fact that European settlers engaged with Indigenous peoples through their Indigenous legal orders, protocols, and processes in treaty-making relationships is one piece of historical evidence that Indigenous self-determination has been a legal and political reality in Canada. Europeans acknowledged that Indigenous peoples were nations with their own systems of law and governance, and, by negotiating treaties under Indigenous laws, settlers entered into constitutional associations to coordinate relations among distinct political communities (Mills Reference Mills, Borrows and Coyle2017).

Treaty Federalism, as a contemporary principle that builds upon the early nation-to-nation approach reflected in the Covenant Chain and the Treaty of Niagara (Borrows Reference Borrows and Asch1997; Walters Reference Walters, Borrows and Coyle2017), recognizes Indigenous power as a complete authority alongside provincial and federal governments. The concept of Treaty Federalism is grounded in a pluralist approach that recognizes Indigenous legal orders and Indigenous governance as legitimate and capable of operating alongside state law (Henderson Reference Henderson2019). While Indigenous scholars have demonstrated that traditional laws and protocols for treaty-making are grounded in, and intrinsically entangled with, the relationship between human and more-than-human beings (Borrows Reference Borrows1995; Craft Reference Craft, Fitzgerald and Chartrand2018; Stark Reference Stark, Borrows and Coyle2017), Canadian institutions have not properly considered and upheld those traditional systems in consultation and consent processes (Morales Reference Morales, Borrows, Chartrand, Fitzgerald and Schwartz2019).

One example of European settlers acknowledging Indigenous self-determination as a legal and political reality is the Robinson Treaties, signed between the British Crown and Anishinaabe peoples in the Great Lakes region in 1850. In Restoule, the trial court found that “[t]he location of the Treaty Council, as well as the protocols and procedures followed, indicate that the British, including Robinson [lead negotiator for the British Crown], had developed at least a functional understanding of the Anishinaabe systems of law, diplomacy, and language” (Restoule 2018, para 214). The legal protocols and principles from Anishinaabe law had established the appropriate process for negotiating an increase in treaty annuities.

On appeal, the SCC emphasized that Treaties are “living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future” (Restoule 2024, para 13). A unanimous Court recognized that the Anishinaabe of the Upper Great Lakes have a longstanding system of law and governance that informed, and continues to inform, their perspectives on the Robinson Treaties (Restoule 2024, para 17). The interpretation of the common intention of the parties (that the Crown would increase the treaty annuities generously, had the economic circumstances allowed so) is consistent with Anishinaabe’s legal principles of respect, responsibility, reciprocity, and renewal and acknowledges “both the Anishinaabe’s jurisdiction over the land and their authority to conclude an agreement with the newcomers” (Restoule 2024, para 179). The decision affirmed that unfettered government discretion does not fit within Canadian notions of legality—it is a “legal impossibility” (Restoule 2024, para 152).

As in the Restoule case, Canadian jurisprudence is rife with examples of Indigenous peoples asserting that their legal and political orders were not extinguished or diminished when they entered treaties, and that their traditional decision-making processes and protocols have normative force in their present relationship with colonial governments (Logan v Styres 1959; Marshall 1999; Yahey 2021). Consequently, any laws and processes governing consultation must be consistent with Indigenous legal orders and governance systems. Consent and consultation flow from the legal and political reality of self-determination.

International law and self-determination as a human right

Besides being a legal and political reality, self-determination is also an international human right, established through customary law and, more specifically, formalized in documents such as Article 1.1 of the ICCPR and the International Covenant on Economic, Social, and Cultural Rights,Footnote ¹ the International Labour Organization (ILO) Convention 169,Footnote ² and Articles 3 and 4 of the UNDRIP.Footnote ³ As a human right, self-determination is based on freedom and equality, meaning that as a collective, “peoples are entitled to participate equally in the construction and development of the governing institutional order under which they live, and further, to have governing order be one in which they may live and develop freely on a continuous basis” (Anaya Reference Anaya, Charters and Stavenhagen2009, 189). Nevertheless, because of Indigenous peoples’ special status as the first occupants of the territories where nation-states were established, Indigenous self-determination is grounded in their connection to their traditional territories, lands, and waters, as well as in their laws and political, legal, economic, social, and cultural institutions and traditional forms of governance.

The strengthening of Indigenous self-determination and the enforcement of Indigenous collective rights, as recognized in the UNDRIP, have met with a characteristic form of state resistance. When the UNDRIP was passed by the United Nations General Assembly in 2007, the settler colonial states that had led the opposition—Canada, Australia, New Zealand, and the United States—each issued statements endorsing the Declaration, while simultaneously emphasizing that it was aspirational and non-binding, and that it would leave existing domestic laws unchanged. Lightfoot (Reference Lightfoot2016) refers to this pattern as selective endorsement, whereby states accept the soft rights to culture, language, and identity articulated in the Declaration, while systematically resisting the hard rights, such as land and self-determination, which would necessitate a genuine engagement with Indigenous jurisdiction. The consultation and consent provisions of the UNDRIP, as grounded in territorial rights and self-determination, are among those hard rights that selective endorsement is designed to contain.

The UNDRIP (arts. 18, 19, and 32) mandates that consultation be done in accordance with Indigenous peoples’ legal traditions. The UNDRIP does not necessarily reflect the specific rights that exist in the various Indigenous legal orders across the globe. Even though scholars have explored the potential for UNDRIP to promote strong legal pluralism by leading states to acknowledge Indigenous laws and their political institutions (Christie Reference Christie, Fitzgerald and Chartrand2018; Lindberg Reference Lindberg2023), it simply offers a framework for recognizing Indigenous law-making power and institutions, and for negotiating how Indigenous laws will guide the formalization and enforcement of international Indigenous rights by settler governments.Footnote ⁴ As a path to realizing the right to self-determination, the UNDRIP and ILO Convention 169 indicate the need to recognize Indigenous peoples’ legal traditions, including jurisdiction over how consultation and consent are operationalized (ILO arts. 5, 7(1), 17(1); UNDRIP arts. 4, 5, 18). Scholars argue that the notion of consent, present in both the ILO Convention and the UNDRIP, best reflects Indigenous peoples’ legal authority to make decisions that affect their territories (Papillon and Rodon Reference Papillon and Rodon2019).

From a global perspective, Indigenous engagement with nation-state frameworks and international law has been constitutive. The transnational Indigenous rights movement has driven a fundamental shift in the meaning of self-determination, away from a state-centric construction toward collective rights and plural democracy, transforming the international order through which states now recognize Indigenous peoples (Anaya and Anghie Reference Anaya and Anghie2021; Lightfoot Reference Lightfoot2016). On the other hand, the international human rights system, as the Inter-American System of Human Rights, composed of the Commission and the Court, has been contributing to the international definition and parameters of consent, recognizing the collective rights of Indigenous peoples to land and natural resources, as well as the right to free, prior, and informed consent (FPIC) when large-scale development projects impact their survival, by applying ILO Convention 169 and UNDRIP (Ward Reference Ward2011).

The Saramaka and the Kichwa are leading cases in the IACHR regarding standards for the implementation of FPIC (Saramaka 2007; Kichwa 2012). The Court recognized Indigenous peoples’ right to consultation on developments affecting their lands and required FPIC for large-scale projects, instructing states to guarantee continuation of traditional ways of life and cultural identity. Consultation must begin early in project planning to enable genuine dialogue and consensus-building and should always aim at achieving consent based on respect for Indigenous peoples’ “proprietary culture or cultural identity” (Kichwa 2012, 51 and 60) However, the Court warned that the right to FPIC is not all-encompassing, allowing the state to impose certain restrictions on Indigenous rights to lands and resources (Olivares Alanis Reference Alanis and Efren2013).

Scholars have suggested that the IACHR prioritizes procedural obligations to uphold the rights of Indigenous peoples during the development and implementation of extractive activities, establishing that consultation rights are independently protected under the American Convention as part of the right to participation (Engstrom and Pérez Reference Engstrom, Pérez, Behrend and Whitehead2025). Human rights to consultation and consent have been used by Indigenous peoples in the Americas as a tool for political contestation and resistance in the face of increasingly predatory extractivism (Raftopoulos Reference Raftopoulos2017). However, the question of who defines the meaning and the criteria for consultation and consent remains. While the definition and parameters provided by international organizations offer an alternative to state-based consultation and consent, they do not necessarily reflect the meanings assigned by Indigenous legal orders and have shown significant limitations in their attempts to braid the incommensurable.

State orders and self-determination as a domestic right

International human rights regarding states’ obligations to consult with Indigenous peoples have significantly influenced several domestic legal systems, including Brazil’s. The 1988 Brazilian Constitution incorporated the principle of a pluri-ethnic state, based on the acknowledgment that different groups, with social, cultural, and legal traditions, live within the same national territory (Pereira Reference Pereira, de Souza Lima and Barroso-Hoffmann2002). As a consequence, and based on the understanding that Indigenous peoples have a distinct and ancient relationship with their traditional territories, the Constitution recognizes Indigenous territorial rights to the lands they occupy (Brazil 1988, art. 231). Even though each Indigenous group’s relationship with the land differs, Brazilian Law acknowledges that Indigenous peoples relate to the land in fundamentally distinctive ways compared to the conventional capitalist mode of extraction and production. For Indigenous peoples, the value of the land underpins their livelihoods, family relations, cultures, and spirituality (Ailton Reference Ailton2020; Kopenawa and Albert Reference Kopenawa and Albert2010). Indigenous peoples have a constitutional collective right to use the land and its natural resources for their well-being, in accordance with their traditions, uses, beliefs, and practices, based on Indigenous peoples’ historical occupation of the land, regardless of whether state law has yet formalized that occupation (Raposa do Sol 2013; Pereira Reference Pereira, da Cunha and Barbosa2018).

It is important to note, however, that the notion of pluri-ethnicity does not ensure the necessary legal and political pluralism to transform positivist laws into social practices and government policies and effectively engage with Indigenous cosmopolitics. The state can authorize natural resource developments after the National Congress has “heard” affected Indigenous communities (Brazil 1988, art. 231). Although most scholars have understood the term “hearing” to imply a process of consultation with Indigenous communities (Villares Reference Villares2013, 225), its practical implementation remains the subject of legal dispute.

The ILO Convention 169 was incorporated into Brazilian law, providing more details on the legal requirement for consultation (Decreto 10088/2019). Indigenous peoples have the right to participate in the use, management, and conservation of natural resources (ILO 169, art. 15.1) and to be consulted about the licensing of mining and hydropower proposals (ILO 169, art. 15.2). Even though the jurisprudence of the Brazilian Constitutional Court refers to the need for an intercultural dialogue in processes of consultation, the Court has consistently upheld the State’s ultimate authority in making unilateral decisions regarding activities such as hydropower, mining, and national defense, as long as there is “participation” of Indigenous peoples affected (Squeff et al. 2025).

In Brazil, Indigenous peoples have engaged strategically with the Estado Democrático de Direito (democratic rule-of-law state) while recognizing its profound ambiguity: democracy and law promise protection yet have historically functioned as technologies that legalize expropriation and extractivism (Julião Reference Julião2018). In this vein, while mobilizing the constitutionally recognized right to traditional territory (Brazil 1988, Article 231) as the essential right from which all others unfold, Indigenous engagement with the Brazilian nation-state democracy becomes strategic and relational, grounded in their lived history and their own Indigenous polities and laws, rather than in abstract institutional participation, making democracy inseparable from Indigenous territorial and ecological governance (Julião Reference Julião2025).

In Canada, even though the duty to consult Indigenous peoples originated in common law, case law makes it clear that Canadian law must conform to international human rights standards (Nevsun v. Araya 2020). When a proposed project or activity may affect Indigenous peoples, the state (federal or provincial) government must respect Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982, and case law. The purpose of s. 35 is to reconcile the prior presence of Aboriginal peoples in what is now known as Canada with the assertion of the “Crown” (state) sovereignty, by recognizing and affirming the prior occupation of land by Indigenous peoples and their prior social organization and distinctive cultures (Delgamuukw v. BC 1997, para 141). When the government has knowledge of an actual or potential Indigenous right and that its conduct may adversely affect that right, it must consult and accommodate appropriately to the gravity of the potential harm (Haida Nation 2004). A simple, credible claim that an Indigenous right exists should trigger the duty. The Canadian duty-to-consult-and-accommodate law is always contextual and lies on a spectrum, from mere notice to deep dialogue, depending on the strength of Indigenous nations’ claims and the seriousness of the potential impacts of a given proposal (Haida Nation 2004, paras 43–45; Mikisew Cree 2005, para 64). In other words, assessments of the scope of the duty and of whether the duty was discharged are conducted solely by the state government under Canadian law. Scholars have pointed to a failure to recognize that Indigenous legal traditions are the sources of section 35 rights and that Indigenous peoples’ own laws and legal processes have not played a prominent role in defining and interpreting the duty to consult (Morales Reference Morales, Borrows, Chartrand, Fitzgerald and Schwartz2019, 103).

There is precedent in Canadian case law for FPIC (Tsilhqot’in Nation v. British Columbia, SCC 2014). Courts asserted that this process must respect Indigenous laws and protocols (Kebaowek, FC 2025), and that the preferred means for the government to engage with Indigenous peoples is through negotiation (Mikisew Cree 2018, para 26; Pekuakamiulnuatsh Takuhikan 2014). As a result, many Indigenous nations are seeking to move away from the common law of consent and consultation to negotiate with state governments to protect their relationships to land, water, and more-than-human beings. Two examples are the Haida Nation and the Tahltan Central government agreements with the province of British Columbia (BC). The Haida Nation entered into its first agreement with BC in 1993 (The Gwaii Haanas Agreement) following a stand at Athlii Gwaay to stop the rampaging logging on the island (Borrows Reference Borrows2016; Williams-Davidson Reference Williams-Davidson2025).

A series of agreements included the creation of the Haida Gwaii Management Council, a joint decision-making body with Haida and BC representatives, which makes decisions by consensus on forestry and protected areas (Haida Gwaii Management Council; Shields Reference Shields2020). The recent Haida Nation’s agreement with BC regarding recognition of Aboriginal title focuses on the “reconciliation of jurisdictions and laws,” stating that the “Haida Nation exercises its jurisdiction on Haida Gwaii in accordance with inherent Haida title and laws” (Rising Tide 2024, s. 3). The Tahltan Central Government’s agreements with BC are consent-based Impact Assessment agreements regarding the Red Chris Mine and the Eskay Creek Project, grounded in the Environmental Assessment Act (BC 2018), which reflects BC’s Declaration on the Rights of Indigenous Peoples Act (BC 2019), require both to apply their own policies collaboratively and seek consensus on project effects (Declaration Acts 2022; 2023, s. 7.2). These agreements require further implementation before a full assessment to analyze whether Indigenous law contributes to the meaning of consent and to determining the parameters of its application.

This section explored self-determination as a factual reality in treaty-making and a right in international and domestic law. Early treaty-making processes between the British Crown and Indigenous peoples in present-day Canada demonstrate that Indigenous peoples exercised their self-determination by implementing their laws and decision-making protocols, which the state recognized and complied with. International and domestic laws on consent and consultation allude to pluri-ethnicity and intercultural dialogue, but do not necessarily create the space for Indigenous cosmopolitics to dictate the processes and scope of that dialogue. State governments have a duty to learn from Indigenous and political-legal orders (Finch Reference Finch2012), as they have done (albeit precariously) during early nation-to-nation relations in treaty negotiations, so they can co-create meaningful democratic processes of consultation and consent with Indigenous peoples.

The next chapter turns to autonomous FPIC protocols—documents elaborated by Indigenous peoples across the Americas that assert, within their legal orders, how they must be consulted and what consent entails. These protocols represent a different approach: one that does not wait for state recognition or international validation but asserts Indigenous jurisdiction as prior and foundational to any engagement with state or corporate actors.

Distinct consultation and consent frameworks

The protocols shed light on a multilayered approach to participation. Governments must consult with Indigenous peoples through their political representatives, organizations, and institutions, following the consultation and consent framework established in their protocols. Third parties must respect their political institutions and laws. Members of concerned Indigenous peoples and communities also have the right to participate from a community-based perspective. In this vein, the protocols present distinct approaches and mechanisms for internal participation in decision-making processes. This multilayered approach to participation reflects democratic practices that predate and differ fundamentally from liberal representative models.

Additionally, the protocols articulate distinct temporal ontologies grounded in Indigenous cosmopolitics. The Arhuaco, for instance, explain that time is “determined by spiritual, cultural and natural rhythms according to the Law of Origin,” and that consultation must proceed “in harmony with the rhythms of life” (Pueblo Arhuaco 2017, 77). In dialogue with other Indigenous protocols, this may include consulting with other-than-human beings (Povos Indígenas do Oiapoque 2019), respecting ceremonial calendars (Povo Munduruku 2014), and allowing spiritual authorities to determine appropriate timing for decisions (Pueblo Arhuaco 2017). Indigenous peoples and communities demand sufficient time to engage their internal decision-making processes, communicate with all villages, hold representative meetings, and build consensus. As the Yanomami and Ye’kwana assert, government officials “should come prepared to sleep in our communities and eat our food for as long as it takes for each consultation meeting” (Povos Yanomami e Ye’kwana 2019, 59).

When states impose rigid consultation timelines, they enact a form of democratic reduction, collapsing plural ways of deliberating and deciding into a singular, liberal, and bureaucratic temporal framework. The protocols resist this reduction by insisting that meaningful participation requires not only adequate time but recognition of fundamentally different ways of understanding and inhabiting time itself. In this sense, the dispute over consultation timelines reveals a deeper contestation between democratic traditions operating according to incommensurable temporal logics.

Some protocols do not detail community participation in consultation and consent processes, focusing instead on the role of political representatives. This absence, however, should not be read as indicating that internal participation is nonexistent or unnecessary; rather, it may reflect a deliberate choice not to publicize norms governing internal deliberation, a form of protective discretion over Indigenous governance practices. Most protocols, by contrast, explicitly emphasize that Indigenous governments, leaders, chiefs, institutions, and organizations bear responsibility for encouraging and ensuring broad community participation while respecting the distinct decision-making processes of each people or community. The Maya Protocol, for instance, clarifies that “according to Maya customary practices, decision‐making authority does not rest unilaterally in the elected Alcaldes, but rather vests in the village collectively” (Maya People of Southern Belize 2014, 1).

Indigenous peoples have also situated their protocols within the ongoing impacts of colonialism, reflecting on how historical and contemporary challenges have shaped their decision to elaborate and publicize these documents, recalling that Indigenous laws are not frozen in time. As the Sagkeeng affirm, their laws “have evolved and changed over time” (Sagkeeng First Nation 2018, 1), adapting to contemporary legal-political contexts while drawing on accumulated experience. As another example, the Yanomami and the Ye’kwana peoples affirm that although their political systems and institutions are ancient and well-established, they have developed new mechanisms to continue caring for and defending their territories and lives (Povos Yanomami e Ye’kwana 2019). These external frameworks depend upon internal processes, to which we now turn.

Internal decision-making processes

Beyond asserting distinct consultation frameworks vis-à-vis states and third parties, the protocols also illuminate how Indigenous peoples organize internal deliberation and decision-making. The protocols elaborated in Brazil provide greater detail on internal decision-making mechanisms, emphasizing collective decision-making and consensus as foundational to legitimate consultation outcomes. As the Tupinambá affirm: “Being a collective is part of our Tupinambá spirit,” and “only we can make the decision, by reaching a consensus” (Povo Tupinambá 2018, 8 and 16).

The Indigenous peoples of Oiapoque declare that chiefs should encourage broad participation, including women, elders, youth, shamans, teachers, and others. For them, participation “means speaking, questioning, not being afraid to stand up and speak out” (Povos Indígenas do Oiapoque 2019, 58). They also explain their view of consultation, comparing it with the flow of the river; in their words, “This flow is like the movement of tidal waters, which rise and reach all the communities and then return to join in a great river” (Povos Indígenas do Oiapoque 2019, 47). Their protocol also includes a drawing representing their view of consultation, showing three tributaries meeting in a single river. That “flow” includes the voices of Indigenous peoples and the government.

The Oiapoque’s river metaphor exemplifies a political tradition with its own coherence and legitimacy, in which decision-making flows outward to reach all communities and returns to converge, rather than concentrating in a single representative body. Additionally, their highlight of consensus and collective voice constitutes a refusal of the colonial fracturing of Indigenous polities and politics into individualized stakeholders whose participation can be managed through state-defined consultation procedures.

These practices of collective deliberation and consensus-building challenge liberal assumptions about representation and political authority. In Western representative democracy, legitimacy flows from electoral mandates that authorize representatives to decide on behalf of constituents, a delegation of decision-making power. These protocols articulate a fundamentally different logic: some members are responsible for facilitating and coordinating deliberation, but authority remains dispersed within the community.

Furthermore, several protocols specify mechanisms for including particular groups. The Serra da Lua calls attention to the need to translate the discussions from Portuguese to their Indigenous languages to make room for elders’ participation in consultation: “The decision cannot be taken only by relatives who can read and write in Portuguese” (2019, 23). Some protocols in Canada recognize elders as essential participants, serving as knowledge-keepers and cultural advisors. As the Hiawatha Protocol declares, “We often turn to our Elders who hold great knowledge of Shka-ki-mi-kwe that no one else possesses. Their knowledge is held in their hearts and minds to be passed by oral tradition for the next generations” (2017, 2).

Regarding women’s participation, the Peoples of Oiapoque claim that the government should recognize and respect “women’s contribution to community decision-making” as “women give strength to the chiefs and leaders, and […] encourage [the] youth [participation].” This protocol also determines that, when necessary, a “women-only meeting can be held during the consultation” (2019, 58–59). Children and youth participation is also declared necessary for meaningful consultation. For instance, the Protocol of the Alto Rio Jatapu and Rio Jatapuzinho of the Wayamu Territory determines that to encourage broad participation, the government and third parties must “explain [the proposal] clearly so that everyone understands: children, young people, adults, and elders” (Povos Indígenas do Território Wayamu 2020, 46). These provisions dialogue with a democratic imaginary in which legitimacy requires the active inclusion of voices often marginalized within liberal frameworks, such as elders, women, children, and youth, as constitutive participants in collective self-determination.

The protocols in Brazil also highlight the importance of traditional leaders and others who represent diverse aspects of spirituality and Indigenous sciences in decision-making processes. For instance, the Munduruku enunciates, “The wise old ones, the shamans, the masters who know how to tell stories, traditional medicines, roots, leaves, and masters who know the sacred places” must be consulted (2014, 4). Pedro Miri Benite, president of the Guarani Mbya Association, describes the importance of his father, Miguel Benite, as an elder, the greatest chief, and a spiritual leader: “All the information that he passes to us comes through Nhanderu, who is God. And it is in the house of prayer that Nhanderu passes it on to him, and he passes it on to us: it is our school” (Povo Guarani Mbya 2018, 47). The inclusion of spiritual authorities and knowledge-keepers in consultation processes unsettles liberal-democratic assumptions, in which legitimate political voice is divorced from spiritual or cosmological grounding. For these peoples, deliberation extends beyond the human realm, encompassing relations with ancestors, spirits, and sacred knowledge that inform collective decisions.

The protocols designed in Canada tend to emphasize the role of representatives and internal organizations in conducting consultation processes, presenting decision-making structures that appear more centralized than those outlined in Brazilian protocols. Nevertheless, many Canadian protocols emphasize that representatives must engage with community members, noting that the greater the project’s impact, the greater the need to seek their input. The Chippewas of the Thames, for instance, affirm that “our traditions of governance charge our leaders with gathering and articulating the voices of the community as a whole,” reflecting “a long history of community-based decision-making, one preceding the development of democratic governments by centuries” (Chippewas of the Thames First Nation 2016, 9 and 17). This assertion is particularly significant as it positions Indigenous political institutions, systems, and practices not as derivatives of Western models but as autonomous traditions with their own historical depth and legitimacy.

Intercultural and multi-juridical-cosmopolitical dialogues

While the previous section explored how Indigenous communities organize deliberation internally, many protocols, particularly in Latin America, also specify how external actors must engage through intercultural and multi-juridical-cosmopolitical dialogues. The Arhuaco Protocol details its meaning before and during consultation. It involves the previous “presentation of the protocol and considerations regarding the development of the relationship, consultation and consent process.” During the consultation, it implies that “information and communication must be fluid, assertive, permanent and with a cultural approach between the parties […]. Dialogue must be carried out with respect and responsibility” (2017, 127).

Moreover, the Arhuaco and Nasa Protocols describe similar guiding principles for relationship and cultural dialogue with third parties, which require respect for their Law of Origin, decision-making processes, authorities, governance, jurisdiction, identity, language, spirituality, cosmology, ancestral territory, sacred sites, territorial rights, and interrelationship with nature (Pueblo Arhuaco 2017; Pueblo Nasa del Resguardo de Cerro Tijeras 2017). As another example, the Munduruku affirm that, to carry out meaningful consultation with them, one may: “Live with us, eat what we eat, (…) listen to our conversations” (2014, 8).

Some protocols also include provisions that may lack clarity from a state-centric and ethnocentric perspective on collective participation. Still, the Munduruku Protocol determines, “In our assemblies, our decisions are made after discussion: we discuss and reach a consensus. If necessary, we discuss a lot. We do not take a vote. If there is no consensus, the majority decides” (emphasis added) (2014, 8). This protocol does not provide further details about how the majority decision would be measured by a process other than voting. One needs to understand how the Munduruku traditionally decide through large assemblies and/or acknowledge that the Munduruku know how to measure that to better comprehend that provision. The Munduruku’s approach, reaching consensus without voting, allowing “the majority” to decide through non-electoral means, illustrates how Indigenous political practices appear paradoxical from a Western procedural standpoint, yet reflect coherent and longstanding traditions of collective governance.

Some protocols articulate how Indigenous legal orders impose substantive limits on what can be consented to, limits that cannot be overridden by procedural compliance. The Oiapoque Protocol, for instance, explains that their law, called No Sixtem, “includes the customs, beliefs, religions, rules, traditions, and concern for the forest and all the beings with whom we share our territory.” This legal order extends beyond human relations: “Some trees […] have their own spirits that protect them. The shaman must talk to the spirit to get their permission for tree cutting” (2019, 7–8 and 22). The protocol thus operates within a normative pluriverse in which more-than-human beings are recognized as having political agency, thereby constituting a framework that challenges liberal environmental governance.

Some protocols make these substantive limits even more explicit. The Arhuaco explain that, according to their Law of Origin, “Coal cannot be extracted from the earth,” and that “mining for quarry construction material must be suspended within the ancestral territory” because it has “produced an imbalance between the relationships that according to the Law of Origin regulate the climate” (2017, 22). This prohibition is not subject to negotiating mitigation or compensation measures; it is a legal determination grounded in their cosmological order. It cannot be translated into the cost-benefit calculus of liberal environmental governance and represents not merely a different preference but an incommensurable normative order that state-centric consultation frameworks are structurally unable to accommodate.

Self-determination and jurisdiction

Underlying the consultation frameworks, internal processes, and intercultural/multi-juridical-cosmopolitical dialogue requirements examined thus far are explicit assertions of Indigenous self-determination and jurisdiction. These claims fundamentally challenge state-centric understandings of sovereignty. The protocols, in general, affirm the right to self-determination as the main principle that justifies Indigenous peoples’ and communities’ right to be consulted and withhold consent according to their own autonomous protocols. The Nasa and Arhuaco protocols (2017) further detail what self-government—or “own government,” from the original in Spanish “gobierno proprio”—means to them. Self-government is described as founded on their Law of Origin, the legal system and traditions of each people. Concerning the relationship with external actors, such as the national government, the Arhuaco assert that such a relationship should be guided by their principles of self-government, which “guarantees the cultural identity and gives recognition to a territory,” and autonomy, “the ability of a government to determine its own destiny” (2017, 58).

Although most of the protocols elaborated by Indigenous peoples in Brazil do not mention the term “jurisdiction,” these documents assert the Indigenous right to decide on the present and future of their lives, territories, and the environment where they live, in accordance with their laws, decision-making processes, and political authorities. Conversely, most Indigenous protocols developed in other Latin-American countries mention Indigenous jurisdiction over the traditional territory and the environment, and the right to govern their territories according to their laws and authorities.

For instance, the Nasa protocol frames a clause which addresses “offences against the autonomy and special Indigenous jurisdiction of the Nasa people” as acts of “disrespect and injury against the ancestral authority […], or the governing authority.” Under the protocol, such offenses “cannot be judged by the ordinary [Colombian] justice system except in cases defined by the [Colombian] Constitution as crimes against fundamental rights, such as the right to life,” because these acts affect the principal authorities of the Nasa people. As examples of offenses, they mention: “acting within the territory through norms, laws, programs, works, projects, activities, and decisions that affect the Nasa people without their due consultation or consent is considered a severe offence against the autonomy and special jurisdiction of the Nasa people” (emphasis added) (2017, 29).

The protocols developed in Canada discuss the relationship between self-determination and FPIC based on the premise that their self-determination flows from their existence as peoples since pre-colonial times. Thus, Indigenous peoples’ inherent right to self-govern existed before and is distinct from the national state authority. In this vein, the Northern Secwepemc te Qelmucw (NStQ) affirms: “As a matter of both Canadian Constitutional and International Human Rights Law, the NStQ authority to govern ourselves and our territory exists prior to and distinct from the Crown’s authority” (2009, 18). In addition, the Chippewas of the Thames First Nation enunciate that the right to govern themselves flows from their “relationship with the Creator” and further asserts: “Our rights as a self-determining people are also recognized within, although they are certainly not created by, the formation of several treaties, the terms of constitutional documents, and international conventions” (emphasis added) (2016, 5).

The Chippewas of the Thames also mention the Anishinaabe principle of dbendizawin, which means: “Anishinaabe independence” or “self-determination.” In their words, this principle comprehends the following: “We were created to live as an independent people, and are therefore able to ally with, but not to become subject to, other independent peoples.” They further declare, “Our consent to proposals that might affect our rights and responsibilities to our lands, waters and well-being is basic to our status as a people possessing dibendizawin, or self-determination” (2016, 8–9).

Furthermore, the protocols elaborated in Canada claim a government-to-government or a nation-to-nation basis for engagements and negotiations concerning consultation and consent processes. As the Aamjiwnaang protocol explains, although the duty to consult rests with federal and provincial governments, “[a]ll authority for decision-making and approvals will remain on a government-to-government basis,” even if a third party is involved (2010, 2). Some protocols developed in Canada also address the relationship between Indigenous and the Crown’s jurisdictions and mention the possibility of reaching agreements of co-jurisdiction, as the Taykwa Tagamu Nation Protocol does (Taykwa Tagamu Nation 2011).

What protocols teach us about democracy

The protocols examined in this chapter reveal democracy not as a single political system but as a multiplicity of living traditions. What unites these diverse documents is not a shared procedural template but a common legitimate claim: that Indigenous peoples possess the authority to define the terms of democratic engagement itself. The protocols refuse the role of stakeholders petitioning for inclusion within state-defined processes, instead positioning Indigenous legal orders as coordinate sources of democratic legitimacy capable of imposing substantive limits. They also teach us that Indigenous democratic politics extends beyond the human. A legitimate political community may encompass ancestors, spirits, future generations, and all more-than-human beings who share traditional territories. Deliberation is then navigating conflicting and aggregating human interests, as well as honoring responsibilities and relationships that sustain collective life.

Perhaps most significantly, the protocols demonstrate that Indigenous peoples do not require state recognition in order to practice their own political systems. The protocols embody what Tully (Reference Tully, Tully, Cherry, Forman, Morefield, Nichols, Ouziel, Owen and Schmidtke2022) argues is required in a pluriverse of democracies: the coordination of these different forms as equals. Each discloses its own ways of knowing, being, and acting and remains capable of teaching and learning from others despite their differences. The elaboration of these documents, often achieved through years of internal deliberation, community assemblies, and consensus-building, enacts self-determination through living practices and responds to contemporary threats. The protocols chart paths toward strong pluralism as the genuine coordination of distinct legal and political orders, each of which retains its authority while engaging with difference and actively striving to overcome liberal tolerance of difference within state supremacy.

However, charting paths may represent only potential ways to navigate all this. Joca’s (Reference Joca2022) research on the application of autonomous protocols in Brazil reveals a consistent pattern, in which the Brazilian state and judicial actors acknowledge protocols, sometimes even formally incorporate them into consultation processes, yet the substantive requirements those protocols establish (i.e., respect for Indigenous governance structures, adequate timelines, meaningful dialogue rather than pro forma notification) are most frequently not honored in practice. As an example, respondents described instances in which federal and state governments used attendance lists and photographs from community meetings as evidence of having fulfilled consultation duties, without those communities’ knowledge or consent, and in which already finalized projects were presented to communities as still open for discussion. States may also instrumentalize a protocol’s existence as a demonstration of community openness to engagement, using the document’s very presence to build a record of good faith while continuing to disregard its actual requirements. The elaboration of a protocol, moreover, demands significant time, resources, and internal organizational capacity from communities already facing pressure from extractive projects and recurrent direct threats to their leaders. Therefore, the democratic potential of the protocols lies beyond their existence as documents, in the ongoing political efforts of Indigenous peoples to urge states to recognize their status as coordinating legal and political authorities.